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sa
St€^te Trials.
VOL. X.
^
COBBETT'S
I •• • . •./
Q MP LCt:£ :d:6.i.L:E: CrT,! o n
• •• ••• •••••»_»•«••••• •
: ::•.::•- ;:..d.j?-..: : V
••••• • •••••••• •
State Trials
AND
PROCEEDINGS FOR HIGR TREASON AND OTHER
^ CRIMES Aiq) MISDEMEANORS
FROM THE
EARLIEST PERIOD TO THE PRESENT TIME.
VOL. X.
A.D. 1680—1685.
LONDON;
l>mKT£3> BY T. C. HANSARD, PETERBOROUGH-COURT, FLEET-STREBT :
, LONGMAN, HUKST, BEES, ORME, & CO. ; J. RICHARDSON ; BLACK,
FABRY, & KINGSBURY; J. tfATCHARD; E. LLOYD; 4, BUDD;#
J. FAULDER; J. BOOKER; CRADOCI^ & JOier
E. JEFFERY; AND T. C. HANSURD.
1811.
• • • •
it\H'.<r>H
#
«t*
TABLE OF CONTENTS
TO
VOLUMi: X.
%^ The new Anieks are marked {N.]
305. Proceedings tgdiut james hollowat, in the Kng'f
Bench, on an Oodawry for High iVeasoii, April 21, a. d. 1684 ••• ' 1
306. Ibe Trial of WILLIAM SAC9IEVERELL and Nineteen others, at
the King's-Bencb, for a Riot committed at Nottingham^ ^ n. 1684 90
The CASE of the CORPORATION of NOTlTNGHAM, U it
was stated by the late William Sacbbysrbll, . of Bar*
ton^esq • •••.••iUt.«*.... 96
307. Proceedings against Sir THOMAS ARMSTRONG, in the King*!-
Bench, upon an Outlawry, for High Treason, a. d. ifis^ 4.. 106
Remarks upon the AWARD of Execution against Sir THOMAS
ARMSTRONG; by Sir John Hawlbs, Solicitor-General in
the Reign of William the Third 1S3
308. Prpceedings on ti Writ of Inquiry of Damages betwaen his Royal
Highness JAMES Duke of YORK, in an Action upon the Statute
de Scaadalis Magnatum, and TITUS GATES, in the King's-
Bench, a. d. 1684 186
30O. The Trial of THOMAS ROSEWELL, a Dissenting Teacher, at the
KingVBench, for High Treason, a. d. 1684 147
na The Trial of JOSEPH HAYES, at the King's-Bench, for High
Treason, in corresponding with Sir Thomas Armstrong, an Outlaw
. br High Treason, a. d, 1684 ..^.tt.*.* .r... 907
State Trials.
VOL. X.
OBBETT'S
fCOMPLETE COLLECTION
or
State Trials.
301 Proceedings* against James HoLiowAV,t in the Kings-
Bench, on an Outlawry for High Treason: 36 Ciiables II,
April 21, A.D. 16S4,
HtH ntauidt
» ibc Kctfpcr oi" bis i\Ja|C5ty'« gnol of
_!!, to bring thillier die body of Jumei
nfim^r, ihrnn in bit custotlyi %i ghetf cauie
•Tlwfisii * "f thisctSRe in 3 Wod,
* 41 ; wIncI Mt joks irft'TTfcl to, in
I f **8oili^ time in the sprincj- dglity four,
iBMbir&^ W29 tflk^M iti the \\>*Jt Inilies, nml
rpr. TTe xru^ under an Onihiuiy tor
T^ ! oeyf^ncrftl offeiTd hYm a
*1 iJul he u'lis prrvrtiJed on,
StV bo|»f fit n |niriliii», to suhmJl hw\ rfuifcss
bfloT'*^'. If r- ^nid, hr was drawn into s<^nic
•»' led how to raise
tec Mho more had
■iuutt u ik-sjgi* fr»r feu^izint^ on
!p of some ihat \fore to
MO i\if tt\ n*.n^i I r' 1 1 !d<'d,
tetiiev hud nctrr fii it.
Ik mJ^ n! *'"•''■ ,.i t^vir ,
tad Wot ;in^ of lo,
kasa^ WTf4 u.^. ...... i,.ij that he L..
OMmd into nnr di^ounic with them U|K>n that
m/kjert: And fjr (!id not bt^]teve, there were
•INe I ;t approved of it. These
West :» UttmMd, and his bro*
Ukr: The iBlh pmon is not named ra the
taibiltd relatian, Home said, it was Fei-jjuiion :
ihlwn Mi4, it wrtsf G*HKlefnmigb. Jiollow-ay
Ihniftfht hj' the iviurf n*»i to be since re in
. hat tic had ac-
*j«thy, he wai
i, miu Miro >v>iii ;t nnti niuvtoiiey. H^
«ei emi pfVKnoe uf inind. He^Mcrved
pmafity tJnt wu evitkst in miTtngitig
rot. x-
i
w hy execuii(m should not h** riuardf^*! npnn im
Outlawry for High TrwiBon ; I i The
Keeper of New|faie» aceori:i , r com-
mand of the writ, bronght hint ihi» iluy to thft
bar of the said court, where he warn proceeded
against io thi» mauuer.
tiii^ pUit, dilfcrent from what had appealed in
manag^nu the Popish plot. The same men
wlio %vere calJed ro|fuc!i, when they swons
ac^inst papi!it»f were Uwkei! on as honest men
uhen they turned their evidence n^foinst Pro-
testants. In all his answers lo the sheriffs,
who at the place of execution troubled hitn
with many impertinent question;;, he answered
them witn so much life, and yet with sn much
temper, that it appeared he was no ordinary
man. J J in speech was suppressed for some
days: But jt broke out at last. Ih it hewc-
pre^ed a deep sense of religion • Ihs prayer
was an excellent * The ct^edii «if
the Rye Plot receh Idow by his con-
fession. All that disrimi-sv ;.' ^ c-
tioo, in w^hich the doy was r »*
peared now to be a fiction ; sum*: .»ii>nn >iud
been so httle taken eare of, that three pernio nA
hud only undertaken to dispose people lo that de-
.*»ign, but had not yet lei it out lo any of them.
So tliat it na<i plain, that after all the storj they
had made of the plot^ it had gone no further^
than that a company of ^itious and inconai-
derable |»etisons were framing" among' tbein*
selves some treasonable schemes, tliat were
never likely to come to any thing ; fttul that
Rumsey and We«t bad pushed on tlie exe-
crable desiigTi of the assassination, in whieh^
iliough there were few that agrec^d to it, yet
ipo many had heard i% from them, who were
both BO fooHah, and so wicked » a^ tiot to dis*
corer th«m.** Buntet; p. 570.
B
I
I
I
STATE TRIALS, 36 Ch aklbs II. \6U.^Pi'oceedings against J. BollMay. [4
Ait, Gen. It' yuur Innlsliip please, the iii-
dictiiient iimy be read to bini, that he may un-
dcrst:)n(I wbut it is, and may not go bhnd to
oxpLMition.
L. C, J. Ay, M\\ Attorney, if you pic
let it be so.
CLof'Cr, Reads. " The jurors being I
to enquire for our sovcmyn lord the king, and
the ho<ly of the county of the city of LondoD,
upon their oaths prcst'iil. That"— ^[And f
3J
Tlie rrturn of the writ of Habeas Corpus was
first read.
67. of'Cr, James llolloway, hold up thy
hand. [VMiirh he did.] Thou hast been in-
dicted in I^mdon, by the name of James Hol-
loway,late nf JjODdon,merchant,fov High Trea-
son by thee oommitted, touching the kinff's
. majes^'s person, and the gori;mment of this
his kingdom of Kii<j:laud, and for not appearing
and aubwerin^rthbt indic*tment, by due process
of law, upon the- indictment thou'standest out-
lawed, and upon that outlawry thou standest
atuinted of the same high-treason ; What hast
thou to say for thyself why execution jihould
not be awarded against thee upon tliat attainder
by this court according to law ?
Huilowaj/. My lora, 1 have been a great
while alxsent, and know not what hathoeen
done in this matter, or proved against me.
Lord C/iief Justice. (Sir George Jefferies.)
Yes, you have l>een absent so longlt seems, tliat
} ou now stand outlawed, and thereby attainted
of iiigh treason ; there is nothing now remains
with tbe court, but only to make a rule lor
your execution
Huiiuuuy. If an ingenuous confession of the
trutli will 'merit the king's pardon, then sure 1
have done it.
L. C. J. For that matter we arc not to dis-
pose of the kind's mercy, he will dispcwe of hi«
own mercy as he shall think fit. Is Mr. At-
torney iutliehall?
Crier. Yes, my lonl, ho is.
X#. C. J. Then pia^ M^iid for him.
Which was done, and in a littlo time after he
came into courc.
L. C. J. Mr. Attoruc}', here is the pri«oner
at the bar, Holloway.
Att, (Jen, (Sir liobert Sawvi-r.) Yes, my
k)rd, I see he is. Sir tSamuei Astry, have you
iLe record there?
CL of'Cr, .Yes, Sir.
X. C, J, It has been road to liim, Mr. At-
torney.
An. Gen. My lord, I would know %%liat ho
«aith that execution should not be awanlr^it.
/.. C J. He talks of disc^overirs ntu\ coo-
tiessions, which wo, you know, cannot take any
iiptice of; ask him ai^ain.
CL ql'Cr. Hast tiiou any tbioff to say for
thyself why execution sboulil not be awuided
against thee, according to law ?
HoUi<7tay. My lonl, I know not what hath
fN.'en pro\cti agrunst nte, but I hate madusiich
an in^«'nuous confession to liis iuaje<tty uf what
I know
i-K C. J. Pio%«m1 flL'ainst you ? \ on arc out-
lawpil upon an ind^riuicnt fo.- high trea.sun;
nhat C'ui you say aL-^uiusl the court'', awarding
exeeutiiiu :'
Att. (Vi/i. My luiu. liu.s hr hoard the iijdict-
nient ujmmi •tijich the outlawry ^\'*^'' ui'ouniii'd ?
LV. oi'Ci. .\o, Su-, <»ni\ the subt»tuucc- w.is
told him, That hi* uasind.fted o( iii^h treu-c:!, j
and iMitJawiMltuiu. iind atJ»ds aiiuinted iiy ihai j
out la wry. J
At^
the whole Indictment was read.]
CI. of'Cr. That is the Indictment, Mr.
tornev^ and upon this he is outlawed.
Aft. Gen. And so sUnds attainted. WhU
hath he to say to it ?
L. C. J. Ay, why should we not awartl exe-
cution acainst him according to law ?
CI. of Cr. Have you any thing to say ?
HoUoicay. 1 have said what I have to say. „
Att. Gen. Pray what is that, my lord, tlilt
he has 8ai<l, for 1 was not here ?
Holloway, I beg his majesty's mercy.
Att. Gen. If the kiug be so gracious at t*
admit you to your trial, can vou makem de-
fence against 'the indictment r Have you any
thing to say that you can defend yonraelf Iqr*
if the king do admit you to be trieu, and thai tf
a mercy and a grace, lor at law you are gOBA.'
i^. C. J. It is so, indeed, Mr. Attorney; if
you will on the king's belkalf indulge him ■!
tar, as 1 suppose you have authority from iSbm
king to consent unto, that if he has a mind to
try the fact, and can defend himself, he shall
have that liberty, that is a great mercy ^ I as-
sure you.
Ait. Gen. My hud, That is tbe only reasoa
why I did cause the indictment to be read thai
he might hear it; that supposing he were nol
outlawed, but that were out of the case, if hm
hatli any thing to say that could defeiijd hina
from it, tho king would not exclude hiiu, but
ailuiit him to his trial, aud extend his mercy so
far to him.
L. r. J. Mr. Aunrney, it is exceeding^ weUt
Now you understand wliut is said by tho kii^B
Atloriiey, \ou ha vt> heard the indictment read.
It is an initictment of high treason, that yoa
with oilior false traitors, lloiic, Uumball, th^
tionilciionuhs, and the rest, did conspire tbe
drath of lUr kiiig. Now (hough you are in
law acuially attainted, as much as it you had
bkfn tried and couvicted, and received 'judg-
ment of desith upon that conviction, to all in-
tents and purposi*s, aud there is no more fur the
court to do, but to aviard execution upon thia
attainder, and he dealt wkli as a false traitor,
\ ct howrvcr in Ub uiurh as you have heard tho
iuflicinient read, if you ihiiik vou have any
thing to say that would satisfy tlic world, or m
jtu'v. tliut \<ni are not guiity of what you are
ind'ictetl and acv used \ti'^ it seems the kin^ ia
|d(,'r.si-d to signit'y his gi-acious iuleotion to-
iviiuls you by Mr. Attorney Cjenei;ii,thathe is
i:»niciiir.| to wave that other part, the 'iltirindcr
hy <»utl;ivvry, and you shall have the liberty to
'■y it, if you think \*ou can dciend yourarif.
'iiv/Maav, My lord, I caanot undertake 4o
51
STATE TRIALS, 3$ Charlss II. l6S4.-for H%k Tnaun.
[fi
myicil', for I have confinaed before his
Uiat I am iruilty of many things in
todicUnciit, and I throw myself on the
kia^ mercv.
L C. J. ^Then h« confe^scth it, and will not
aadprtake to fJef>.'n(l liimself ; as for the king's
111. J , that we must leare to his majesty, who
■ ike di«peusvr of his own grace, we are to
OBBoie his justice, and must give a rule av-
Jost. \VUhinK. But I hope every body here
tthfs aotice of Lis open confession, when he
■^t try it if he would. Surely none but will
Mere this conspiracy now, atler what this
■u hath owned.
I. C /. We were well enough satisfied about
tt before, and so was every honest man, I dare
JsisL Witkins. Yet, perhaps, though he saith
il, and oUicTS have confessed it. and the evi-
diaoe bath been made public, there are many
penle that say they will not believe It.
Lc/. We do not mightily concern our-
Mtm what the people say. I am sure not one
rf si that wens concerned in this conspiracy,
kic dared to deny it absolutely, thougti some
km been prevailed upon by ill advice, to pre-
fUile about it, and shutic it off. But none
tf diem hare bad the confidence absolutely to
iaf the troth of the fiict, notwithstanding all
Bs and reproaches cast upon the
and all the arts that hare been
of to stifle it.
Iitt. ITitAf ju. My lord, I speak it the rather
hecHse we lee what work sir Samuel Bamar-
liitoa bas siade of it in his Ix'tlers, where he
alb it a Shun- Plot, and snvs it is lost, except
il Ae fSmnd among the Abliorrcrs and Ad-
L C. J. But now the Plot is found among
tbecsQ&pinitorsand traitors, he may write tu
kBcwnr^ponilents in the country the next time,
i H tbuod among the reftirmrrs of govern -
■ear, and religion, that can swallow all tilings,
, Ibttcao kill kitigb and levy war, and do tnc
■mtof villainies to promote religion and re-
faraation, as they call it. — Iiet lis think of
■■e convenif nt day, and give such order that
fhe ibenfTs sec execution done according to
Alt. Gen. You must first pronounce the
pigment, my lord.
ML H'itAiHM. It is ncvrr pronounced in
Mih a case, ^Ir. Attorney.
L. C- J. No, we only give a rule fur evecu- *
in, the outlawry is the judgment, and that is [
■pa the record already f.
* 8ee his Case, \ol. 9, p. 1334, of this Col-
fSae, in tins Collection, the Cases of 8ir
Armstrong in this same year, 168^^
A. D. 1746, and of Dr. Cameron, a. d.
tlM; authorities referrc<l to in those
Tbe Mtat. 7 W. 3. c. 3. «. 3. saves the
•C tiic rei^tioiis thereby enacted on
vtKssop, to sueh as, having been out-
Ci ofCr, Yes, my lord, we always enteritso.
L. C. J. Captain Ridiardson, I'think, Wed-
nesdays and rridays are yonr usual executioB
days m London, are they not?
Capt Richardson. Yes, my lord, cither of
them.
L, C. J. Then Wednesday seven -night.
Capt Richardson. Does your lordsltlp ap- .
point Wednesday next?
L. C. J. No, that will be too quick ; Wed-
nesday seven- night.
Capt. Richardson. What day your lonlship
pleaseth, I suppose I shall have a rule.
CL tffCr. You shall have a rule, and an
Habeas Coruus to deliver him, tis the course is.
L. C. J. lu the mean time take your prisoner
back again.
And accordingly he was carried hack to
Newgate.
Afler which he sent the foUowhig Petition to
tlie King for mercy :
* 3Iost great and gracious Sovereign,
*■ I your majesty's now close prisoner in
* Newgate, and condemned fur my crimes,
' which I have confessed myself guilty of, in a
* paper of my own writing, delivereil to tha
* right honourable the lonU of your niajes-
* U''8 privy council, in which is a true and
* faithful account of all ihat I know con-
* ceming the late Plot, with the manner how I
* was drawn into it, and the reasons why 1 did
* not come in at the first discovery, and cast
' myself at your majesty's feet for mercy,
*• which I hope your majesty hatli perused, and
' find no cause to think I nave reserretl any
' thing uudist.'ovcred ; for when 1 was first
* taken, I resolved to declare the whole truth,
* and nothing; but the truth, which I have here
* (lone, and will own to be true, before any that
* shall offer to contradict it, or say there was no
* I^Iot ; and if any thing more occurs to my
* memory, will not fail to declare it. I have
' ' now nothing to say for myself why I sliould
* not he executed, according to condemnation,
' but do must humbly prostrate myself at your
*■ majesty s feet for mercy, acknowledging my
*• hearty sorrow fur all tlyit 1 have btten guilty
* of, and remain in 1io{h*s, that that fountain of
* mercy which haih so abuudantly flowed from
*■ your nl^jc-sty*s sacred breast, e«er since your
' *• happy restoration, is not vet dry, but tli:it
' there are souiu drops Ictl tor inc,' which if I
! * may be so happy us to obtain, I shall alwaya
* whilst I live, endea\oar to appnne myself
' your niaji*sty*s most true una faithful sub-
*ject; and, l'hoi>c will answer the ends of a
* pardon. Which that 1 may so do, r^nd for
' your majesty's long lifi*, peaccahk! ami happy
* riMgn , shall t V er pray , \ c . J . 1 1 01.1.0 w ay . '
His Petition being rejected, he was executed
April 30th, 1684.
la wed, do ufterwanis i otitic theuiselves to a trial
on the merits. Sec East's Pleas of th« Ciuwn,
ch. !2.8. 69.
7] STATIL TRIALS MCHAiBLhnBn.\6U^^Pr$ceeding8 0gam9t J. Holloway^ [8
Being come to the place of Executioo, he
spoke to tlie ahcrifis as tallows :
Holiowa^. May 1 have liberty, Sir, to speak
what I desire to speak ?
Sheriff Daniel. Ves, Sir, you may. What
you liave, I suppose, will be by way of disco-
very to the world of wliat you are brought here
to (lie for.
Holloicaj/, You have roy Paper, captain.
Capt. RichartUon, Yes.
Sheriff Danief, Have it you about you P
Capt. Richardson. I have it in my pocket.
Sheriff DunieJ. Shew it him (which he did.)
Is it your own hand -writing?
Hollotcay. Yes, Sir.
Sheriff BuaicL Is it 3'our own hand-
"writinor ?
Hoi/oTcav. That is my own hand-writing.
A discovery of wiiat 1 knew, 1 made to his ma-
jesty, but a gn;ut luuny people think that I
iiave not discovered what 1 knew : but I have
discovered what i knew of the Plot, aud I am
heartily sorry 1 was any way conceilied in that
way: as to tlie endeavouring any thing by
arms. I do think severni thin«jf8 have liecn ilf •
managed in England, there have lieen many
things done against the king and the kingdom's
interest, and ff wish the kini^ was well satisfied
of it, aud tuat a course miglit he taken to pre-
vent it. And, I think, one way to prevent
plotting (according to my weak ca|Kieity) is,
that his majesty would be ple.ised to call a par-
liament, and pass an Act of Oblivion f(ir all
nIottti'N whatsoever. There uas n danmabli^
Vopish Plot, and I hiok upon the stifling of
that, to be the only cause thnt any man did any
thing in this. Had all the Popish Plotters
been —
Sheriff Daniel. By the way, Sir, how do you
know it was stifled ?
Hollowatf. Sir, we have known that the laws
could not lie suffered against them, and the
parliament could not be suffen'd in the prose-
cution of them. I wish the king wmm con-
suU his own safety, and thesafety of the nation,
and that an Act of Oblivion might pass, fori
believe there arc many concerned ; and that
there might be an end nut to all news- mon-
gers, that write into the (*oni}trv letters of
news; 1 look upon that to do the km"* and the
kin;;dom more hurt than any thing else.
Capt. Richarthmi. Mr. ll«dlnway» I beg one
thing, have you discfwcrcil all ? J di sire yo».i
wonhl declare those (}ou did not name their
names) that, if occasion were, would be ready ;
but that you liad not .<:poke to them. Wade
and others were to ninintuin their posts.
Hollmtnj. No, Sir, I had not kjioIcc to them.
Caj.t. Hichardson. This you did say.
Ihlhrway. Yes, Sir.
Sheriff /j«?i it/. And that you promised a
mimher of men in this design.
Hidlon:au. iVoniise it ! I did propose I
might do it.
Cppt. Richardson. What do you know of
the conthvuig the biuunoss uf the Uy«s« for
lopping, or taking off the king aud the dtd^c ?
^ HoUmcay, I was not with them till after t^
time a good while ; till about a month or tin
weeks after the time I was not acquainted with
tliem . I looked upon it as a business not likdy
to take any effect at all, for 1 could never Ana
above five that were conoemetl in it.
Sheriff Dashwond. But did they not tell y«t
at some one time, they were eoDccmed in audi
a tiling !'
Huilouai/, \c% Sir, they did so. They^
told me more thvm once.
Sheriff JJ«7i/£/. In Bristol, or in liOndonf
Jtiolhuay. In London.
Sheriff Dushrcood, 5Ir. Holloway, yon hsr^
a hiicrty to say an}' thing you have a mind to.
Holfon-fly. I have little to say more upoa
that account. I am sorry I was concerneil b^
that ^vay , to do such a thuig as to take up anm.
But as*to the desi^ I had, and the Plot I wa«>
acquainted with, it was nothing against tht
king^s life.
Cupt. RichardiOH. Sure it was the savae
Plot, while there wus a design to seize the kiugp,
and take hiiu frum e\il company.
Holhuay. We had a design to take then^
that were guilty of the Popish Plot, and werii
cnemieai to the privileges and liberties of th«^
subje<^t.
Sheriff Daniel. And as a thing that
to tli'ti, the king was to bo seized till he
sculett to thcaie things.
lloUo'i HI/. It was supposed by them
told mc of it, that many things thai have
act4;d of late, were done contrary to the kughi
knowledge, and that the king knew nothinff iff
it ; and 1 am perfectly of that belief too, uiaA
many thuigs arc done contrary to the kinff'a
knowledge. And I was farther informed, tEat
if the king could be but once acquainted with
these things, that the king would preaeotly
come in to those that should stand for his as-
.sistance, and give up all those offendeis to
judtice.
Sheriff J}(7ni£/. And if yon could not tell hioi
otherwibe, you would take him first, and tell
him afterwards.
IloUiwai/. You may interpret it how yoa,
please, Sir. It was that all such difiercnosB
amongst the king's subjects might be preientsA
for the I'utnrc ; for I believe then* were never
git.*attr differences in the spirits of men, though,
some think the times were never better than
now, liecause all things go according to their
own humour ; but I suppoae many in the na-
tion are satisfied that many things have beeft
done contrary to law.
Sh.niff Dunitf. Was it fit you slioiild set up-
for a politiei&n, or a statesman '^
Holhmay. No, Sir, I did not take it upon
me ; tliat uos for tJic scribblers that write
news. I do not reckon myself worthy to direct
in such a cas>p.
Shei-iff Diwiit/. 3Ir. Holloway, you do mfL
remcmlicr to give the names ot' those persoaSL
you spake of.
Uniki£uy. It would be a fbUy lor nM« Sii^«
9]
STATE TRIALS, 36 Chables II. l6S4.-<-/«r High Treaton.
[10
to go t» abuse men that I did not know whether
Wn woaJd be concenied or no.
Moriff Datkwifod, But that there were per-
■M ^t would be concerned, you say.
BoUouray. That we did think so ; and if we
ihsakl naiiie every one that we thought would
hscMicemed, 1 believe we might name three
fam ot Lundun.
GipL JlicAardson* I liope you are in a
pM mistake there.
HUAuiiay. For that desi^, I helieYC above
ikiee (lorts would be for. 1 never had any de-
■p Uit I'ur the king and the km{;dom'8 inter-
«t; tbou^ 1 know that denjpd that was car-
mi en by Kunosey and West was a very hein-
<« design, but 1 belie c they would not have
hmA many iu England that would have been
4vk ; 1 ni'ver heard of above Bvc for it.
fibstf DsniV/. Were vnu acquainted with
W^eol?
UiAliwa^. I was in his company once or
fise, bat 1 beard him speak against it.
[ %inS DamieL Was you ever with my lord
! Btllmmjf, No, Sir, I was never with my lord
flbtebory but once, and that was about a
Mb I waai promoting in parliament, about
Ae laai-raanttfacture.
Shsiff DvmigL Was you ever with my lord
BaUman. Never but once, and that was
ibMl that buaness.
SbatS DamieL Were 3'ou ever acquainted
* vv bud Russell?
Never with him at all.
wcood. You were saying you
kmr ibe same; of live ; who were the}' that
svie It he cuncerned in that matter ?
BtUt^ej. 1 ba%'c declared them to his ma-
bbenS D'jniel, Did you know Ferguson .**
KiMHirfiv. I knew 'liiin, Sir, but I know
fmsttk*'j t'i be a^piiisst any such design, and,
iidfc-d, we diu look u|>oii it tu be a thing that
««dd C(.ui«-- to noetiect.
Heriff DjLs/actud. Do vou mean the s«>iz-
i«lbe kir.^ :-
Maii^ff^tr. I mean the insurrretiou.
l^ehlT l>tinicL Did you know oi'auy money
fimk or (»r>j!uiM:d to buy arms '!
BnLLwiif. No, Sir, novrr. I hoanl of money
ta was u> be nuved, but 1 did not know hIio
iMla raise it.
ftoiif Dan*rJ. It i« not our business to ask
IWaaoy questions, it' you have anything to
Mrvouniay.
tSim€ lituhM.ttJ. if y^'U have any thing
li say tor the di^^harcfc* of your cobscicnce,
MtUoxay, I tliaok God, I never had any de-
* ^^fainsi his majcKty's person ; what'l in-
' was oolv for the* gocii) of the king and
a, and I did take ii that it wmdd liave
■•; and 1 am very sorry that any things
" base gone contrary tu law, as thi.*y have
aod I iiope care will lie laL.^n t.> {irevpnt
ibefiiturc.
Wm% aod I iiope <
Sheriff Dashwood. The kine bath said be-
will govern according to law ; he hath done so,
and will do so.
Hotlowai/, That I leave to the judgment of
all; many know better than I.
Sherifl* Danirl. Such glossy pretences ar«
very strange, to carry on such a design, for the
seizing a sovereign prince, that you have sworn
allegiance to, or ought to have done.
Hollcftcay. I think those pretences, the
grounds that we went upon, were no glossy
pretences at all.
Slieriff Daniel. I think il is, that when
things are not done as you would have them,
you must immediately rebel.
Hotlouay. No, Sir," not that ; we did not de-
sign a rebellion.
Slieriff Danie/, The seizing the king is cer->
tainly a rebellion, and one of the highest steps
of rebellion.
Hollotrat/, We say this, that all ways wer*
used against Protestants ; several Sham- Plots ;
hut no justice could be had against Papists.
Sheriff Daniel. Several uf them viere exe-
cuted here.
HoUmcay. There wore some executed at
first. Sir ; but al'terwaitis, when so many great
persons came to be concerned, there was no-
thing could be had against them.
Sheriff Daniel. Tbei-e were mighty searches
made about London, for that great number of
Papists talked on.
HolU/uni/. There was a great many seized,
Sir ; but wuat became of them ?
Sheriff Da?? tV/. Generally tried, and brought
to condign punishment. Y on would not have
had every Irislunnn believed against liunesf
men. Snine peoiile were called papists in
inas({uera(lc.
Holloa ay. Irishmen were believed against
Prot'Stauts ; after they had turned about, and
had sworn against papists, they were believed
then. It was well observed, *^tliat while the
Irish evidences did continue in the first dis-
course of the popish plot, and in the first evi-
(Wncos, then, it is well known, they were slight-
ed, anti all cried out ai>ainst ; hut when they
came to swenr against Protestants, then thing*
were alt«*r«?d presently.
Slieriff Dashu'(H)(J. 1 pray God all men's eyes
m%iy be opened to see what is done.
iloUoauy. 1 uould not advise any one to ^
that «ay to work, to do any thingby ftirce of
arms ; and I wish the kind's eyes may be open-
ed, that he may see his eneuiies from his friends;
and 1 think he hath cause to look for thfnn near
his home.
Sheriff Dashtcood. Have you any papers to
deliver ?
Hollmvay. 1 have no ot^>er papers; what
paper I wrote, the council hu<l. 1 did write a
pa|>er, that it might he- fouie satis^M'tioii to the
opinions of pcopl" «.l' wl.ut 1 knew, that rare
might lif* taken ii» pi«-\int <ither opiniimR. if
ihcK \\<'V\f ?\\ rnor. \vA that paper the council
h:id ; thon^h \\w\; Iviok il very heinoiislT of ine
i ihut 1 shuiild p!-f«<:uine to write siu*h :t Aiing. I
1 1] STATE TRIALS. 36 CiiAftLfiS H. l6U.^Pr0Citdingw agmmi J. Hefhway, [ I
Ifioked iifmn it that t couid not do more for the
kirns, than to acciunirii liim of wbil i kaew^
t' were niisitiformed, tliere ttii^bt be
o. H> alter tJie own roil.
SiiLiiit l^uMiT^i/. \ou have delivered no
puf>ei- tu }*Jur wiie, or tu any friend* ?
liifUoaay, Thttt^ 1 suppose, is well known
to tlie gAuler.
bhisvitf DuAhvood, You know betleT than
any body whether you liavu or not. You may
ty Ay, or No.
Hounway* I could not lie admitted to write
jy for I could not have pen and ink to wrile
mny thintr hut this*
SIu^fiiF Daihwood, And you ha?e not deli-
V iijjer?
. 1 have written to some friends. I
know It i& supposed that 1 had deUvered a copy
of that paper that the eouncit had ; and, 1 tliiuk
if it had heeo knowu publicly, It would have
done no great bitft.
SbenH' D/ifiit7. You speak of several (teoplts
opinions ; what do you mean ?
Hoihuaif, As concerning' the times, Sir, the
management of aflairs.
Sheriff Daniel. Prtiy^ Sir, under what deno-
mination do you reckon yourself?
UoLLmtay* I reckou myself a Protestant.
Sheriff JDtimW. Ofwhatiort? Of the church
tf finffland, or of the Disaenteni from them ?
Holhway, I am not a Disaenter from the
church of England.
8hti ' Nor joined with thein?
Hit a joiueii with them altogether.
But 1 Lhoiigla tliat if aov good had been de>
signed for England, that J had done enough to
merit a pardon ; for f liad wrote so much of
tnitl^, and was so fair and plain in it, that 1
ihouj^ht it would have merited a pardon^ if any
good were designed, li" I could have disco-
vered more, that h»d been for the king and
kingdom's intcrcM, I wuidd have done it; for I
did not do it rashly, but considered of it some
time before I gave it in . I hope it will be a sa-
lisiactmn that there was sucn a plot; what
other n>en*s opinions might be of it I caunot
tell, but leave every one to their own judg-
ment. It was feared thai arbitrary govern-
ment and iM»pery was dcsignrd: aud truly, I
think, at this present time, by what I can un-
dcrxtaud, that iliere is little bellcr de^i^ned.
Capt. Rtchardson. This 18 reflecting upon
the govimmcni.
«heriff VashtLOod, Tht* is not fit.
llfyliaway. J say it is contrary lo the king's
^^itiicL Sir, wc have neither a re-
r,nirjl*>n fur yOU-
I t'jipect it, Sir ; if troth
li . J '. I ikve merited a pardon, I
ought littve had it.
Capt. Richardson, The king is the best
judge of his own mercy*
HW//CTrn;/. Had tbc Uw be«i executed
^^ -tshoHTcuders, Ihad n«verbc«ucon-
c« y l*lot.
CapL Ktckardstm, You know the king wi«
veryean]«!ftt in thai, to bare the lawi ^mi
ejcecution against theiu ; and that be inovcd
to the pai'Uament to have it ik>np. Have ^
any tiling else lo say tliat more nearly <
you ?
Hotiomay, I wiah I could have been
otherwise seruceubleto the king and kingdo
before I leli thvui, I should have bccji i£
willing \ and it was always my design
mote the king and kiugdom'^s in
than my own.
Hhetiff Unmel. Well, Sir, you MyrJ
things very well ; hut others ill,
Hotiowai/. What t say. Sir, 1 leave
ple^s jnd^'-menu ; if 1 am mistaketif
they will be utherwi^^e.
Hheriff Dunkl. Well, Sir, liave you
thing failher lo sa}* ? — HoUoway, No, Sir.
Hbei'tff Dmhu'ood. I suppose you n^ed
keep a meeting, or club, at Bristol, with i
therCv
Bdkrway. 1 know some have repre
club very had in Bristol. A club we bad i
the choice of partiamcnt-meo.
Sheriff DanicL The Horse-shoe club.
Sheriff Dashwood. Or the 31 ermaid-c
HoUumay. The Horse* shoe club, it wt
for carrying on the election of pariift^^
men. ff all such things should be calledi
there were ^ax at cltibs kept by auothor i
Sheriff Daniel. Well, Sir, you had I
f yourself for death, you have no long
ive.
Then he opened his Bible and reaM *'•* *
Psalm, and part of two chapters r
brews, and afterwards aske<i the 8hti,U- j
oM^ht have liberty lo pray ; wbieh
granted, he prayed as follows :
** Blesi»eil and holy Loi-d our Go<], thou ]
before all men, thou art the only true God, I
Almighty God, the fountain of all
Thou art the discerner of all hearts, th
thoiightfl of men are not unknown to thee.
Lord, what am I that thou should^t be luijidl]^
of me, or that thou shouldst suffer me now I
call upon thee, when thou mi gh test have I
me away in the commission of somt- sin i '
theci* Ijiit thou ha^t been a merciful I
long suffering God, a patient God. O J
trust it h far my soul's weJfare in brin
to this, though it is an untimely end, fcrl
cuttest off my days in the midnt^ but Lord, |
trust it is for my souPs sake. Our times ate i
thy hands, and it is my sins that have brouj
me to this. t>h give mc a true sense of l"
as I trust thou hast done, and that thou ha
heard my prayers, and wilt be my
comforter, and receive me in and throu
merits of Jesus Christ our Lord, who I
himself a sacrifice for our sins, even for tbe tin
of the \*holc world, and now sitteth at
right hand baercixting for us. Lord, bear i
in and through him. Lay not any of foy i
to my charge ; let not the least sm be unp
dooed. The lea^t stu deservctb damaatioti^
Lord, I trust thou hast pardoned tbein all, aa
13] STATE TRIALS, 36 Charles II. l684.-/(pr High Treason. [14
The PAPER dsUrered to the Sheriffs.
int thou hast heard my prayers, and the
fn^'cni of utbcmi lor me. Li)nl,*in mercy look
im upon iiie ; in mercy look down upon this
Mtoa ; (mnlon tlu* crying sins thereof. Lord,
ikM seesi to %» hat a lit- i^rht of sin it grows, and
liMi seest what wickedness is promoted in all
fhoB. anil what little eh«MHiragemeiit there is
Utawhicli is giKid. Lord, l)lt!ss the kin^,
■ikeefi bini from all con-^piracies. LonI, g'ive
Mm a scn<ie of his condition, and make him
kwm bi< (mtHiiies fn»in his friends. O Lord,
klhiitt i<*ok close aliout him, to see who arc
rint him ; and Lord put an end to all plot -
ti^. O Loril, make him a happy prince, give
\m a siDse of his sins, and a sense of wliosc
Mniat he i<. Lord, make him thy tnie ^nd
Maiol servant. Lord, bless all thy people
whatatjever tln-y are, and continue thy Gospc-I
OTT vbere, let* it not be rooted out. C> Loi-d,
Am knoirest uhat contiivauces have been
Bide a^iinst it. Lord, continue it here; let it
%mmU more than ever it hath done. I^ord,
■ke £n;;Iaod a place thou wilt delight to
6clin, aail nuke them know thou hast not
^■k so with every nation. Lord, hear the
pnvos «if all thy people. Lord, continue t!ie
wpd in £nsr<utitl ; I^t not po)>ery, let not
mnry ^o« eminent csme in. (I Lonl, there
V» fvwi'laws in Kngland, Jjord, let them he
fit a execution. Lord, hear mc for thy mer-
CMiiilfie. I am now coming unto thee. Lord,
I kaie but a minute or two to be here, let thy
yiril receive me, to thee I commit my spirit.
Mi, War ne, and answiT me for thy S«ui's
■kt, «^ ii at thy right hand interccciing for
■«ft» wfaoa with" thee and thy eternal Spirit
WafiiHiOoar, ai:d ^'lory, and praise, both now
•rfcfffBJore.'*
^ *Thitn bein*; a^iketl, \Vho was in council at '
tae ee!ivm uf the letter 1' I In answcreiL) I
H.tlav4^§f, There was the duke of York. an<I I
JtefWil keeper ; 1 did not deliver it : !t wa-i '
■■■C^ptefl iu a letter, or givi.n in. J did not I
!■■» how It was ; fi»r I have been kept, so that '
liidBotthe Ub«.Ti% to set? any fri^'iid, till \cs- j
Mty in the aiteni'oun I had the liK>erty ot'two '
* wee boursk with my wife.
Capi. Rtcfinrdwn. \ ou had your wlic- \wth !
|Mi before, ami your sister, a!id .some other
UUiouav- But that was never without a
Cape. iiuharJson. \ ^^\\ .ire in the rijfht, j
Hlenti' DnttuL They do not u^^e to allow
•mwler your ci^cu.n^tuuces such a liberty
■5Ji« talk of.
lUUoi-ejf. 1 pray dA that no nthi.T people
■11 €mi0kirn themselves w itli puhlie adiiirs, out
if tiMr o%rn way; and that the Kcribd'crs
il%hl be put down, for they do more iuut to
%i|aas>iloni than any thin*^ eKe.
Ifttritf Ihintfl. Have you any tbinn^ more to
MS'^ilifUviL uy. iSiO, Sir.
mmUS D'ifi'tL Then God Iuavc mercy upon
tlmaftcr which hf" was turntd uff.
April ^6, 1684.
To stop the mouths, <Scc. of. all pamphleteers,
and newrs- scribblers, who ha\ e done more pre •
judioe to his majesty and kingdomjs, by tlicir
impudent endtavour's to sham p.ll plots, and to
fill the country with false news, thaO they will
ever be able toretrune; and to satisfy all I
leave behuid me, 1 thouirht good to draw up a
short account of what 1 knew of the late Pro-
testant Plot, how I came to be concenuid, what
induced me to it, and how far I was concerned,
also my now opinion of it, &c.
It vva> my unhappincss to have too publi-? a
spirit for one ot* my capacity, and us soon as I
i:imie to be a froc lian, to prefer the king's and
kingdom's interest Ictbrc my own ; for having
some knowled}Ve in linen-ciotb, upou the pro-
hibitions of French linens, ^c. 1 thought the
linen manufacture might be brought to peifec-
tion in Enii^land, to the veiy great advantage of
the poor, and so made some trial of it in War-
wickshire, where 1 employed some hundretls
of poor, ami in about eigliteen months time
brought it to such perfection, that 1 could make
as good cloth as the French, and so well imi-
tate it, that few coidd know it from French ;
but the prohibition being not so strict as at first
seemed to be, Frenrh cloth was brought in
chea|)er than ever ; so that I was forced to leave
off with loss ; but considering, that by an act of
farliament tor its encouragement, in a method
had thought upon, it might be settled much
to the king's and kingdom's interest, advancing
the king's revenue near two hundred thousanu
pounds a }ear, and would have employed about
eighty thousand poor people, anti about forty
thousand acres of l«nd ; concerning which I
was, al>oui June IGHO, brought acquainted with
the earl of IOsse\, to whom J related the busi-
n<ss, wlio itii'.nuiiiulely had me to the (now)
f"\v\ of Ttorlic"-:tiT, then Pr.*«?i'ltMit of the Trea-
sury, and h*i l».id mc to sir lidwanl Deerint*",
w'.io (when tluy tniderstood my proposals)
gave me something to bear i;iy charges, and
encouraged me to utl'.'nd tlie i:t:xt parliament,
t'j endeavour the ]u"nM.1ion then»of; which I
did almost t!ii;wi.oI- .^'s -ions, and brought to
the h'jH-.iker'.s riinmber soraeof the cloth,which
ujfjcoiujmrivl with French, ^c. vvA thedf^igu
well {'pprovcil (»f by all; which bmught me
into lou large aenuaiutance for one of my capa-
city ; fi(j:n v. lioin I hcrvd too much (as hath
proved, fir nsy i:)*.erc '.) of things that were
in hi»!id er.rA'"U'ing the Popish Plot, which
prevcnifd the doing any thing a** to my design.
So that aflf:r 1 %vjis encouraged to attend the
O.'dijrtI parliament, which 1 did ; and was de-
sired there hy the carl of Clarendon, and
otlni-'. to piepire ;» bill ; the headvof which 1.
drew iip^ thou'i'h it proved to no purpose but
my ruin. 1 uish my kine, and country might
ri'iip tli»' betiefit of what I pay so dear for. The
more 1 knew durins^niy at* judunceonthosetwo
parliaments, tlio nion^ I w as desirous to know ;
and did by some scribblers and news-mongers
15] STATE TRIALS, S6 Charles II. iSs^.-^Proceedhgt against J. Hollowa^y [16
constaiitljr kuow most public afTairs that \% ere to be done biz ueeki befcn^, that they had oohf
acted,wl)ich they undertook to i-c|M'csi|nl accord- > a parcel of amis ready, and that they bad nci^ -
ing^ to tlieir own liiiinour ; many actions being* ; thcr men nor horKCs ;' but one said if they couli ,
represented very illc^l, much a^nst the pro- haveraiiieddor8(K)/.to baTebougfhtbor8e8,md
testant interest, in favour of papists, &c also mmetliin^ to encourage men, they should
• 11... _ . I have found men enough ; so that I looked npoa .
that only to be the design of fire or six penani«
and no way likely to be acted ; but the gcnsnl
design for the insurrection was carried on h/
others ; who, though they had mails a gml
stir in the nation, trying the inclinations of
peoule, and had ti'eateil with the SScotsand
Irish, as I heard, who were to be ready at tbt
same time, yet were never come to any resoln-
shamming the Popish i*iot, and layuig sham
plots up4)n prottstants ; abusing the rights and
J)rivileges of the subject, the truth of which I
eave to the jiidgmeut of all ; but heanng
many sueh like things, was easily prevailed
with to be concerned in the plot, according as
it was proposed to me, viz.
About July l^&2, I met with a person who
then being come from London, gave me a re- . .
lation at large concerning the election of i ti]^'^ ^ii t4» any time or method, liefore all
sheriffs that liad been in June, the manner of t discovered ; thou^rli they had lieen
which is well known to :ill ; he represented it to
me as a very illegal action, and that there was
a devilish (tcsign of the jiapists in it, to cut off
the king^s frieuds, the stirring men in both tlie
last parliaments, as to the prosecution of the
Popish Plot, who I always took to be both the
king's and the nation's friends. That there
were witnesses had been reaily a lon^ time, to
swear against them, but they could not ^et
jurors to believe them, but now they had by
force of arms, &:c. got sheriffs who will find
juries to believe them, and so hang tlieni up
at their pleasure ; that there was none bnt had
council about the king, who kept all ill actions
from his knowledge ; and if they proceeded to
swear North and Uicli at Michaelmas, and to
choosa lunl-niayor, as thev had done Kherif)s,
the Protestant ginilr)' were resolved (naming
some) to remedy what was dc^signetl, by an in-
suiTection in several partu of i^ngland ; and, if
possible, to g<rt the Icing off from his evil coun-
cil, and bring all ]H»pis)i offenders to justice,
sayiiiif, that they uere sure that, when the
king knew the occaiiiou ot' ifieir rising, he
would presently give up all oflenders, and
come in to them. That it should begin ii\
Nu't'eml^r iu London, Hristul, Kvetrr, 'ftiim-
ttu, Chester, York, Newcastle; and that we . , ._
should hear mora of it in a month's time: ! tlioii;^hts, and actions of all, though never
months contriving of it, from the time I fim
hc>ard of it. This, 1 hope, will be enough to
satisfy all peojde that there was a pkit; 1
mention no names here, having given Ml
majest}' a more large 'account of w hat I kncir'
of it, mentioning the names of all that I knew
conccrnc«l. The arguments before mentioned,
with many others to the same eflect, not only
soon prevailed with me, but made me iudeed
think it my duty to do what I could for my
king and cbuntr^^'s safety ; being then fully
persuaded, tliat not only popery, hut arbitrary
government was inlcnde<l ; not tlien consider^
ing, (as I have siticc considered) how much
bloodshed it might hnvc caused iu the nation ^
for then I thoui;tht all woukl have been ended
in littki thne, supposing things to he as to me
was reported. Diit 1 do^now declare my
hearty sorrow for my yielding thereto, tind
acting therein ; thongfi 1 can safely snj', I was
not lor talcMig thu king's life, but wholly for hii
|»rcaervation," yet am satisHcd that it might
linvo caused very much bloodshed in the natioot
hx\\\ nni glad it did not take effect. Also I
dtclarc, that I am satisfied it was a very great
sin against God, not only in distrusting hit
Provjilencp, hut in ollVring to take the work
out of his hand, who knows the hearts.
therefore desired we loight consider lii>w it
iui;iht be raanaged in Bristol ; which we did ;
;ind concludeit, that Bristol, with abfiut J6U
npen, might l:>e easily securetl by a surprize,
without the bloodshed of one man. About a
month aher that, cauie the person he mention •
ed we should hear tuova by ; but he could
declare no more than the fornier did, only that
the design went on, and there would be linn I v
notice given to all parts ; but we hearof notliiiii*:
hut disappointments and delays, putting it off
from time to time. In April 1 heard of :i not her
daiign against the king, and duke of York, as
they were to come from Newmarket, Sf>me
time in March ; but when 1 enquired into that,
fbunil it was carried on by three or four ; and
never oouhl hear the names of above five that
were for it.- When I heard it, I declared my
abbon-f^nce of any such thing, and that I was
confident ntme in our parts would be tor such a
baM action. After that, I enquired further into
iti and could find, that dthoagh it ww intended
sorrct ; whose mercy and panlon 1 most hum-
bly iieg, and trust shall have; and in confidence
thereor", (through the merits of the blowl of our
liOrd aud Saviour (.*hrist Jesus) can willingly
die. Nothing (next to this and all other my
.siii^) ii» more trouble to ute than the thoughts
hmv (dying^ 1 shall leavi; my relations and
frit'ods in trouble, concerning 'my worldly nf-
I fairs ; boing by r»;ason of thi.s unhappy concern,
I not in such a poslure as they should be : So
that by my di'at'u my dearest friends will not
only he \ei\ in great It rouble, but lie under the
iwuRure of' many, none understanding how
things arc ; ni\ wife and children ruined, and
my creilitors grtut losers ; whereas might 1
haVc b(.*en thought worthy to live, I should
have taken the trouble olF them all, and hope
in time to have pai<i every man to a penny ;
for I can from my hvart say, that as 1 hope
for salv:ition, I novor designe<l any fraud to
any man, bnt to pay every man his due. I
have hcani that sunie shoiUd say, I took up
4
STATE TRIALS, 36Cbari.es II. i6S4.--/or High TVeta&n,
[18
Herest to carry on the plot; wbich
or I never was at any charge therein
omtaon expenreii, nor never heard
y rai^-ed opoo that account ; thonjfh
0,000/. that were to be raised ibr
Hit suppose it was not done. I
la pretty well satisfied, and hope
\ na to my iiiturc state, and can
tve the world ; but upin the ac-
r friends ami creditors, considering
I they will be left in, could gladly
me time, that I might have taken
dal that I fear will be laiil upon ine
jooe ; but God knons my heart,
ind always was from any tliouglits
Aed that all nneans that conld be
bftve been used to get as much out
■iUe, but had it not been my rcso-
daite all that I knew concerning
id also to do what in me Jay to
lottiiigs ibr the future, that tliere
end put to iiuch heats, difierences,
■miogs, that is, one against ano-
b» majestvand his subjects mi<<:ht
I lore and union, an ought to be
■tiiice and his people, I bad not
I did ; for I was never a man to be
ion by severity, and whut I wrote
wholly dqicndcd upon his mercy ; besides, I
had some other reasons why I did not plead,
which at present I conceal ; and also ^liy I
did not s}»eak what I intended. More 1 may
say at the place of execution, before I leave the
world, which will be according as I find things ;
but as to a discovery of any more persons (1
cannot) than has been nJready menttoneiL
Should I mention any whom I itiought would
have been concerned^ I may much aliusethem,
tlioiigh I believe many thousimds in the nation
would have apjteareil, for the reasons afore-
mentH>ned, which causeil me to be concerned.
I doubt not, but several that were concerned,
who are or may bo cleare<l, for want of suffi-
cient proof against them, or by his majesty's
mercy, will blame me ibr confessiug what I
knew ; and not much grieve thai. I iaikd of a
panlon, or at my death. But 1 repent not ray
conft^on ; and could 1 discover more, wouhl
do it willingly, though I find no mercy with
man. ' James Hollowat.
due consideration, being no<
roflk I do snppose, that making
waA large contcnsiun at first, ami
ttioBsthiit might be observed in luy
A 1 perceive were intercepted, may
ilboogtits that I sti!l reserve some
inavered ; but as to my t^nfcKsion,
ally done, I had had some weeks
ItyjigKto mind, and :!S for }MM-s<ins,
«e account, and of all pussaf^^es 1
MJbcr, thougl) vA^a'i^ do a!:d m:iy
Biml. What 1 suj»ivfKii was oliscrv- j
ttlers, might hv sj'ir.v fcif.Jish ex- |
Mcmiusr soiiit^ uf my acr(ua!i:ta>ice, '
wouki betray nu t'neutl, meaning-,
Btity should cause me to accuiir' any
ciy to save myself, idthough (if 1
lltbe accusing of a ni'.mher of {ler-
llave saved i:iy iitV*, and bud hreti
rwold do any vu'h thing to save iiie)
■met cause c-f any n\mi ; for wlaii 1
aderi, tlwse :n*ltri«tol, '•.I'l d>e-
ift were my ni:^*. iiitiuiJite :ief}u:»iiit-
led to do' any *.W."*x f'.r ?•«<•; liay.
neeive letters whe:i I wr )tL' to thei;:.
af should hf fouiid ti liuM corres-
iidi me. >Vlien i crave in uiy con-
Mwd not up>.>ii tffrtns id' a pardon,
Ident, if truth Mould mr.rit mucy
iW, I shouM ha\e Ills pHr>iou, and
■ the only way lo s:ti!i uiLvey with
id it already that o* op'le nru {UiKiiini;
Mi upon me, some on*: way, c^iid
htft ^ "^.^ "'^' plea'.lin&(, aud i.c-
(ipMiier tnal whim Lt wat oH'Mvd,
Ml Canfcosed tbe uliole iniiiotniem ;
iMniS ^r 1 S'^i'l ^i»i'-. ^Viiat 1 was
nmi tnnfrf nl to liis> liiujesty, aud
In the Year 1684 were published, in a folio
Pamphlet,* " Tlie free and voluntary
" CONFESSION and NARRATIVE of
" JAMES HOLLOW AY. (Addressed to
" his Majesty). "Written with his own
*« Ifanil, and delivered by liimseir to ]\Ir.
»* Sirretary Jenkins ; as also the Pro-
*^ cecdings against the said James Hol-
<* loway in his Majesty's King's-Bench
" Court, Westminster ; and his Petition
** to his Majesty. Togellier with a par-
' ' tieular A ccount of the Disconrsj as passed
*' between the Slieriifs of Londtin and tlie
*' said James Holloway, at tlie time of liis
*• Execrtion for Ili;^!*. Trciso!! ul Tyburn,
" April :J0, lOui. With bis Prayer im-
** metliptely U fore, and tlic truo Copy of
*' the Proper ilr-llvonvl Uur.u at the same
*^ tiriu; aiid placv. l.o:u!on: IVintcd for
" l?i,li' rl Horn, Jolin Barker, and Join
" H«.'diijj»ync." Tlus Pamphlet contains
all th«* AKiVler licre printL'd, touvther with
the ll>llowip.2'
CONFEJ-:si<)N OR NARRATIVE.
Cirejit Sir,
I \our uiaicr-.ty's most Ijunihle, hut to': nuich
nn-:levl, and i!iN.'>fMlif.nt sui)jccl, do lu-ie nK";t
faithfully, aeeordinj^ to the best uf my reincfti-
■f At Tne t?Mi of the jiaTnphlet is the f^dlow-
ing linpriinatir : '» V. c ::;>TM.i:il Kobert llorii,
'•"John llekm-, ami J^nu UiMnasn, to print
*' tln'sc paj-erf, o\A i»i .t none 'nher print the
*' tame. i*i::i.;. Damel.
G
ID] STATE TRIALS, 36 Charlis II. iesi.-^rroceediugiugaMt J. HoUcway, [90
lininrc, irivc you an account of what 1 knew
eoiurniiiijj ilie lute discovered conspiracy, b<»\v
I caiin* to be coiu'cnieil, how far I was cun-
ccrncii ; how it was so have been rarritnl on
ill Ihisiol ; wh^v I did not come in at the tirsl j
(lisci:tery, aml'cu^t n)\s(lf at your UK«jf3l>'.s
fivt tiir lUcn y *, how I'luatW iny csca|«s ami
whcro 1 wai**ii:l luk*n. Jf 1 shall throujrh
f(M-j»vifiil!iL'sisi omit any tliinj^ ihal it may be
thoutjht I aui privy to, 1 t»hall be rcady'and
'wiilin;'^ truly to aiiKwcr any question that shall
be asked by youi'innjotv,* or any your most
honourable pri\y council, no way despairing
of your niaj< .sly 's uurcy, luu remain in hufics,
that that iouutuin ofnicrcy which hath so
abundantly tU>wcd fi om your sacred breast ever
siui-e your happy r(>Nturaiiun is not yet dry,
»ni\ tliat thci-e is s*>nie drtips lelt for me, who
doi'ht not but to serve your majesty both at
home and abroad, laiu'h more living than my
ikath will.
I'hat w Inch 1 have cause to impute the oc-
easinn cf my boiiit^ concerned, was my too
public spirit, ' prt :«-rrinjj^ v our uuijcsty 's and my !
e.ouu!ry's interest much Inilure my own, but
espcc:i;dly in altciidinijf the two last p.irUamenU,
pn»n\(.tinjif an act, for th.f encour.imimcnt of
the Mneu Maimfatturo, a;id the pn \eiiti:)j;- of
frauds in y uui- majesty \s cuslouis, :^c. which
would huvo brought in, and saved to your
maJLSty ni'ar '2(>0,()00/. per ann. and employed
many iliuu;v:uils of poor, 6cc, as is well known
t<> many uoithy persons abt»ut \ our court, and !
ii:djed provi'ti usy ruin, otherwise than in tliis I
C'sneern by brinjiiupf me into too great ac- |
(jii.:i.itance for oi>f* of my capacity, and by
!li:»l tube c<iiice>iU'l .:*; 1 WU';. My atte-ndaa'c
o.i tho.?e two pari.^iaents i doubt have been
iiji;ripre;>inted.
(lotv far I was concerned.
Ai'tir Ihc dissolution of iho two last parlia*
iiicnis, 1 observed a ;j;ii!at dissatisfaction i
iii pi'opli-, ill iiuisi parts where I traxeTbd, but :
lje:ii(l iMihinrr of any deaiy^n till July UuTi, '
v.iit'ii one. \!r. .lost.'ph Tyly, of Hrist«>l, cunic I
fruui Loiiilo:: ; 1 uieetiii^ with him, askul |
wliai iwws, he aiiswercd to this effect, all bad, I
ami if siiMie ^ptrdy coui*se be not taken we
sIimII Im^ all undone, for by their aibitrary,
iilei^^ul ways, ami by force of anus, they have i
t;".ot slM-ri/is to I heir minds, witnesses they had |
bt (ore, but xKiiit'Ml jurors to l»elievetlit:m. now
tb. y innt'irnt .slurilfs, namin<^ 3Ir. Xor'.h :u.*l
Mr. Jde.h, who \\\\\ fuid juroi-s to b«'lie%e any
e%i(U iici* ai4-aii..>t u prutestant, and so hang up
nil ilie kind's friends by dci^rees ; I then told
hnii that I thous;ht it was iin|N)s<;ible such j
tliiiiir.s could be done, but the kini^ nmst hear I
cit'il; no, said he, there is none suffered to I
couip near the KinGC, but those who have been
decldicd enemips to the kin«r and kingdom by
]iarlis)ment, naming Kome that were mentionetl
in thi> priutril \otes, who to save themselves do !
cndtavotir to keep all such things from the
kind's kuouh-diTo, and persuatle him against ;
liariaiuiut^. with uiucU u;oi'i{ such Ukc dis- ;
J
course, by which I found the same was dis-
coursed Itiroughout England, Scotkind, and
Ireland, as a means to engage people. At
length he told me that the protestant jgentrj't
naming the carl of Shafteb-bury, lord Howard
of Escrick, and others were come to a iiesolti-
tion, sc>eiugfair means v\ould notdo, bntall
things on the protestants' side are inisrepe-
sentcd to tlie king, by such great enmi-
nals, and none iivore in favour tbun those, ta
t.'die the king from liis evil council, and that
by an insurrection in several parts of Eoglaod
al once, viz. luondou, Bristol, Taunton, Exe-
ter, Chester, Newcastle, York, and some other
places in the north, and that there would be a
considerable party ready in Scotland, and ano*
ther in Ireland, *^thcrdore, said he, vtemust
consider how to mana<jrH aihiirs in Hristol, fiir
if they praceed at Michaelmas, in choosing
lonl-mayor as they did bherilfs, and to awear-
in«7 of North and Hith, it must begin in Oe*
tolxir or Movember, otherwise there will be
some sham plot contrived to take off mo&t of
the stirring men in the last parliaments ; with
much other discourse Cb the same effect ; add-
ing, that Mr. Wade would come down very
suddenly, by whom we might expect a foil
account of all. y\ bout the ended* Auj^ust, as
near as I ciui remember, Mr. W.'uJe cania
down, who cH)ntirmed what Mr. Tyly had
said, but coidd say little as to any fartlier re-
stdution they were come to above, either of
any time or luethod agreed upon, but that tbo
design went on, and men were employed iu all
parts to try how people were inclined, who
found enough ready, and that there would be
no wans vi' men, it it was once begun. Then
we considered how it mij,lit bf? inanagcd in
ilristul, and wh:it muiiber of men might be
iieeilful for the lii-st or.>.et ; towards which he
s-.iid, we miu'ht depend on loO men from
Taunton or thereabouts, and concknled that
;>oO might Ih: sutlicient to secure it without the
bloodshed of one man, it being our design to
shell no blood if possible ; but this we resolved
not to aecpiaint any of our friends with it, till
the day aud method was rcscdved, of which he
said wo shoidd have ten or fourteen days no-
tice ; and having soon consideretl of a method,
wuited in expcdati'jn of further advice, but
none came till November ; then wc heard that
some disappoiiitnn-nt happening they were
forced to d«day it, though there was moie and
na-n: cause for it. The end of December or
Im ginning of January had advice that it waa
deftrred to tlieb».tjinnlngof !\larch. The third
of March 1 came to jjondon, and meeting
wit!. !\ir. Wade, asked him how things went*
who answered that he coubl not tell what to
make of it, for he could find nothing done,
more than was nine months before. The
great persons who were the managers, having
done notbii:g but talked of things, lint now
there was some others appointed to manage it,
u bo were men of business, naming them U> me,
viz. the curl of Kbse.x, the lord IIt;ward oi
Lscriwu, liitt lord Urey, the lord ItusselK col.
Sdarj* major Wildman, Mr. Hampden the
€r, ftncJ M r. Charlton, who he did siiiiposi'
make soinrthing of it, and not do as tlie
had «|f>Dr, niakt* a }i*ar.s talk lo ensnare
■MiTthousnrjfN of pcf »i»l«* to no purpose; lor
tkfselttd kfreadv st:nt nu*sscn«r< l'^« into ^U•ot-
MiBfi Irr-iainL to know thnir minds, ni'min^
«rlaroii Smith, sent into Scotland, and at the
IfBRfif the iiiessen^fcrs, would come to a i*eso-
iMas to tin)C and method, but he was oonti-
iBKtbc\ could not hi nMd5'bitbref}]idsumiiuT,
lvia»ii) thev bad done so little in order to it.
Mr. Wade was t!ifn dfM;;ncd into the wet, upon
AectTi'of St.imf(»rd*s husincss, and said it he
u&dcrstund aiiv thinsrniore before lie left
he
ttus
STATE TRIALS, 36 Ciurlf.s II. \CSl,—/or IJi^h Treason. | \>2
duke, eoniinnr from Newmarket, wliieh they
e\pei*titl would ha>eh(>cii that Saturday men-
tioned in his li'ttiT, hud not tho lir«' h.ipp«Micd,
whicii e:ni^"d thrni to eiMu*.' ^oonor ; nay, Faid
lit*, hatl we l.nown ihvy would have staycMl ro
ionjy as th'^y did, tlx'ir h-isiiu '';s slmold ha%c
Wf^n done : 1 tli'-n asked him what lie meant hy
desirinij Mv. \\i\i\v to fjet his elifiits tofjithrr
h\ that «lay, ami what h#* eould prop'»se they
sfumld huv'edono, to wliich lu* could ♦<:ty litlii*,
only that they mi<rht be ready. 1 tln'n told
hini, that 1 thous^ht it a very rash tliin«jf. a»!d
that few in Kn<rland wouM approve ot it, that I
was sure none about us wouUI, bcir.nr a most
eowanllv, dishonouraide action, In'si.los the
uould take Hristoi in his way, and bas<'st sin of m>ir(h'r ; then, saiil h<>, what is
uitli it. This join-n;'y Ik- brouo'lit dt-siyfu.'d by thf f»-,MUTal desijjn hut lo take them
■ttooL'l. Kunist'V. with viliomue had little j both" off, and if it had he<n doni* tl.al way, it
hmats^; he b«*i:i;J ?oin(r forth with his lady. , wonki have prevented a great dtal o\ hlo<»d.-h4'«I
lliaith «'f March 1 left Loudon, and ueiit j in the nation; no, said i, no such thin«^ i)»
&Ntlf for Bristol ; about the 12th of March ; d*.'sii;tied as 1 know of, the general desi^^n l>einir
lbW;<de came to liristol, but then could say ( only to sfet the kinj^f ort' from his evil counsel*,
Maretban as above, the incsS4*n£rer.s heinlf ' who had advised hiiu to put a stop to procet d-
iicMie Uick trotii 8«*otlaud nor Ireland, and ' incrs a^piinsl Popish l*Iotl< rs, by diss>dvin^ of
mtf bi> f<>riii<n' opinion, that if any tliinof j p'arliaments, \e. and to bririf;^ afl Popish oneii-
VRdonc, it could ni)l be More .Midsummer, ' '
kite €\pcct-.-d to b<' abouttwo mouths in the |
VM, and said that it' any thiu>4- was agfreed i
ifn *».ier, one >lr. \\ e>t. a counseUor>>liad .
fnniiHS to M rite to him in the nanu; of lnc;-le-
a«e, «a«l (tirc4'l his letter to be left at his bro-
ikr'iin HrMol, who Wade ordereil that if any
mdt kt>r c;iiiie, to open it, and if any thinj^
■Bexn« ia it, to s<:nd it hy a nu*ssen^T*to him
■lb tLr vv»t. About the ITlli of Mandi came
% Wtter t-r hilt from Wist, in the name of
&«'•''■?*• Xh. H Inch his brother opoued. r.nd not
fc-aiffi.: ::•; .^ iSi.' «.i;ic, brouuht it to me, but I
iaew a •; : e* KiOinir.^ thereof. The eonlents
•*»:•- ..-.-A \lr. \\ a<i«.' M> jrci lii^ clients to-
gcd:*r ;•.►. I.. \i S-.itiird.iy eoui*? t'lrtniubt. for
tan .•!<• ::. "• 'Jiy u^>{H)inted t-i kimI the wntiiii^-^,
lad >iX!-.* r .: I.N iHu'eiMiudis,;; it, his broi'ii.'r
mb} u »ii--'»'"*iiir»Taff<;rliin., whofoiiisd him
sT&i
«hi>>tojtistice, and such who had betrayed the
liberty of the subject : and this 1 think was all
the d'isroursc we had at that time, heinj^ the
tirsi of my acquaintance with him : that nijfht I
went with him to a tavern in I'leet-sirect,
when? was eaptiiin Nort<in, Kichard tit»oJ-
enough, and one Mr. Aylif, who, to my kiiow-
ledfifc, I never saw befo'n? nor since; whilst I
was with them there was no discourse of any
business, hul 1 so<m kft them totrether. The
next ilay Mv. Koe <d* J^ii^t.d, biH)Uuht me lo
Mr. I'erljuson. at the- house ot one Mr. }V«urno
a brewer, but was imladuulted to see him him-
self. \'\ rtfuson then w^iit by the name of Ko-
bert>, w h«i \« hen i had lohi my name a-.nl from
\^ hence 1 <\nne, was preity free in ihs^'ourse
with me, and told me the d««si',ni uent on very
well, that there were souu* SeotUsh crentlenien
ome up. who were tr:*atL«iu' with the ma-
nuLfers, and did hojM* th< y wmdtl atrrec in a few
days, aii'l come t<» a res.)lulion btilh as i.i ii;r.e
am! metiiod, r)f vs iiish we should li.,velimeiv
}»v all his «!i-
iiurse at that time, I
uuv ihintj of
>''.\ |ji> wnsuer hy the nu'sseniij v !
VH, tit.: •*.- knetv n'.»l ti:e lueanint^of it, but j
dbasiil !•« •%::iiiiit* !i iiiih-s (»f lirisfol the nevt
Itoinjay . •!»- ir.n*^ thit d' aiiy other Ivtter came, notice, ;>u'.
toira>l It t" !-.Mi. .\h')'.it three dnyvatb'r came could n-fl W'i«.ei\e thai lie knew
MHiKr h ir« - ;,'♦ ;»b'»ve, dcsirin*: him not to i the Ni;.Mi!i;;kei iieNJi^n.
Cll bib I \i' ii- to^fther, for the time of s<'i!lin«4' j That day I l.u.i some discourse w ilk eohmel
Vli put •'•:. v>li'.eli letter was also sent to Kim. ' Uiimsry ai hi-i hou-je, wlio I {"(I'lik! e is privy
Im b^ •..••i* r»*!<»od it not, siiyu)ir, it ivas some; to the NewiLurkt t bu«ine'?», it-od his opimim
■ib (mi* :i« s«t f.r (•ther, ami scv eut back a^ain. was, that the .\( w uta'.ket d^ «i>^n wo-.dd enuo.
Tb«*rit'ih iif April I canh» to London, and ■ to nothuiir. for hv uu: !.'»t approve oi tin- uia-
ftlft f rcr.ioi; ••%<•. ii ro 3lr. West's chauiher in . nasfuiN a( tiiM^»;, aui' i.iid there \vu"» noiluMi.'- like
At Tt-rii !•!•:, vtL-:r«. I fou:w^ him, who then" the other di'sit:ii. t >:• i'k'.i \»«iani I'tit "u ind to
#i»< k:i«j.» 'If, but when I tidd him my' all in a little tm:«'. in.n 1 1.» tl hiiu, ih.it nern- in
flMr, Irv ij %. lenci* 1 cam.', anti mentioned ' our parts would In; lor it ; »\ii;''.i t iliiok uaj
Attvtf ie-iterii "^Ir. U ade received from him, . all the discoui-se we then luid ; <'il\ he pro-
bbqr*B to l/e Norntwhat free in discmirse with mised, that if any thioi; v.ie* :i';ieed lielore .^Ir.
1 thTi tu!d him that Mr. Wade and his Wade came up I slufld lieu: t>l it. so 1 itiuk
wtrc ^ulplis^•d at the letters, not know- I Uave and went f.»r lin^. 1 il;v !:cxi mor:mii;.
Ifwbat b** lie ant by them, and did desire to , .Abouttendaysatu r. luani:^ ui.ihin*; l»om tlii-m
■HVyCoocerfiiiis^ which be seemetl a little shy, ' (Terpisou liavi!::*- tuM luc tiiai he thooi;:hi u!*
little d»>course, tie^an to tell me, say- I would 1h? ai'r*-» »l ;u tour oi tive days, and pio-
iiaft a deuji^n to takeotl'tbekino^ aud | niibvd to uUvivc) I v.ivta u Mr West, dei>>i.;.i;
iS.
SS] STATE TRIALS, 36 Charles II. \6%^—Prceuiingi€gnttd /. HpUaway,
to know how they went on, who wrote mc, i supplied with, wouhl be ready in three or
that they still met with delays, and were come
to no coaclusioD; aik-r that, I heanl no more
until May Al>otii ihe be^iiming of May I
caioe up to London a^in, in oompaiiy with Mr
Waiie and some otbt r Bri&tot men but when
we caiDL' upt my biisiarts being' m the city, and
iheirK about tlie Teji>]»ie, we parted; after two
or three days, I met with Mr. Wade, and asked
how he found Ihinjp^ who lold me^ he^ douhted
days, being tenihons^od pounds, wh'tch w
be. returned to Holland to boy anm, &€
Scotland. He &fW told us that the 8c
gcuLlemen iiad made atioiher proposal tc
manag^erg, tlius, if they would Ktipply tbop
thirty thousand poTindSj ibey would he^
Scotbnd tirsl^ which they could sewn baTC
then would inTade England, desiring the
nagert only to get a party in the Norl
all would }»rove albatn, for he thou^it there | Koi^bod, rea*Jyto*)ijpose any force from coi
was iif>tliin^ intended, findiag^ ooihiug^ mate-
rially dune in order to m bat ba«l been to ionfif
discourbed. Tlieu we wtiit to Mjs. West^ and
discouiMfd htm fully about ttie contents of his
Jotterti, who itild us,*tliey were resolveil to kill
the k'm^ and duke as they came from New-
market^ in onler to which, he had prt^vided | found nothing but delays, the manager!
arms for fifty men pistob, carbiDc^i and Wun- , agreeing how to raise 'the money » and
dcHniise-f> ami that they ^vere promised the | if the money had lieen ready, they
house of one Uundmld a maJtsler, which lay
:., *i I I *!.. I ■ ^ _- I __ i.r.
out of Em^tuTd agaiust then), before they
settled SootJand but this was not apprmrc
the managers chiding rather to supply 1
with iOjyOOi Old to begin it in Eni^lam
same time. Then we dallT expect^ to
when the money would be jiaid, l>ut
in the road, and the king must come by his
fiuor, there the men shotdd have been lodged.
'I'hen we asked who was to hate acted it, to
which he could givi; hut a lender answer and
rotddor would name hut two men, who were
KaiiibQld and bi-s l>rother, saying, if they could
hare raiserl uiK or eight hunihed pounds to hare
houglil iiorses, and souk thing to encourage
mejt, they shoiikl hiive had men enough ; an
that we ibund ihcy had few men, if more than
two, tmd no homes, only a pari^el of anus;
which afterwiiriti^ hu shewrJ us al a gun-
smith's hiuihc, i.' ii liitlc la.u* ucar'IVmplc-har.
Thrn we askwl him what iliey tlesigncd if it
hiid lakm iffect, to which he answereil, that
the men t^honld have come up vvih all sjif-ed iq
LcMuhii auddiapprfii>d lUnn'**'! es uitneiHalely
fU-cIariii-- for tiie duke of IMi uuiouth and ilii
th.e king uiitl duke l)cing ilead, no opposition
• ouhl iHMuailo; then we asked who wi-n« for
Ibis deiugn, he named col. Unnisey and
Ilidiard Uixtdcnoiigb, and, as far n» I ean re
come to no conclusion, as lo any metltod r
than thev were nine inontb« before^ hi
done nothmg hut talked to ensnare people
IM>ning about in all parts, how the liberti
the {J0op}e were daily more and moiemti
ed, and that arbitrary government md po
was coming in a|Mice, which incensed pi
very much, and made such a grumbling i
parts th^x v^ f I'tunA longer delays would I.
the common people in many parts mutin
lieiiig as we thouirht bo generally kiiown
\yi «oiiiethlngwfts suddenly done, it wai
Iior.sil»lr it should re mam imdbcotered,«)
I next time we met with Ilums-*y and F^
(thijit^^h never together) we declared om
fiaiifdaction by reason of such long delays,
spoke it so that it might come to the nianf
^ai-s^ as we suppose it did. being to this e:
TLiat we thou^jfbtMiey had only adesij^^n u
Xrr.y people, draining many t thousands ii
snsire, for their actions skewed iltle others
being so long discoursing a thing of that n\
and done so little towaixls it: few days
joember. no uiore ; .so we iimnd it was CLuried ! meeting with Ituuibey *i'^^^ he told us
00 by ilieju coutrnry to hu ktiowltHlge^ or ap
prolNition of those u ho mrinagud the general
di'.si,fii: ihcn vi e Itdurpd our t,'reat dislike of
it, u.-lli»g hint, it was a hiM-, dishonourable and
iMwsu'dlly aftion, and W(»ul«l Hcein odiouH to all
the woriil that any prt?teudinglhemstjl g* I'ro-
testanls, shim Id be ooncerned in such a blooily
action, and that we thought it was his cowardice
put him upon it, to which he siiid, that he
could not liglu^ hut would bs m forward with
his nutncy as any <»ne of hia capacity Then
we went to col.' UniiiKevT ^^ho we found to
he wholly onV^^t'K njin-Htfi, siiying, that ex-
cept something be done that way, I know no<
wore of different opiuioD* concemmg a
ihod, »nne for liesrinning tlie iusorrection
in Lfinihin and Scotland, some tor it
places at once as al first proposed other
several places in Koglaod and Scotland,
not in liOndon, saying that if it was not ht
in Lon<lon, but in other places, tlicre wou
forces raised in Loudon to send out ajg-
them, which would take out most oi
sti-ength, and that then London might be e
secured ; somcumea they were for b«*ginni
OL ly *u London andHcotlaod, and to have \m
come up tti London from all parts of Eng
to which we answered lit at wu tbouk^ht no
\teuer than ivhat was tii-sl pro|Hised, {t iai.
thnig u ill be done at all, for he knew the other
managers u(»nld i!o nothinor; so we had little beginning of it ui many places at oiicis •
discourse at that time. After thi wei^enito j fore mentioned, for ultliotigh we bad eng
FfTgnson, who to.d us how thi agf; stood ^ we | none in or alMUit IhisUd, nor should not
then found that he knew of both designs, but ! deal 'Uir it till alt things were concluded,
wos only for tlie ins iirrectkifi uod told us, that "*' *' ' ■""'*
tlie inaH:igers had been treating with some
Scotch gentlemen; that they were almost
«jf reed, uid tliat the money they were to be
%vith tlu! assistance we were
I'annton, did not doubt but to get men i
to secure it, and that we kne^v not where t
ten nieu that would come tor LoodoU} and
B) STAIE TRIAIA 9£ Ch ables II. l684.-/0r High Treason.
[26
(iftf to neote tbdr own oountry who
mMmht inUiig to ksve all and come for
Whl Bnwf SieB wd if he knew where
Ik beM of 1,000 men he would begin
iflilliK
li|Mlly,iid Mred that we might meet
' 'ihtwidiiome others and consider
m the next afternoon we met at
tfefrtone near Tem^-Bar, and
litlaTemnear, I think called the
Yflng Devil Tavern, where met eigfat
Wttn.) oelooel Rumaey, Robert West,
Imm, Mfit Wakoty Richard Good-
' AmeiiGeodenon^, Nathaniel Wade
ri( tUi was the first time I knew
Whn we were all sat, colonel Rum-
•iitbii flfiect,as near as I can re-
the wae woids ; Gentlemen, if we
I ifcni thousand men iu and about
BbAoeiia uenon of honour will ap-
IjbheU <tf them and begin the busi-
~^'efc we supposed to be the duke of
I, ivl do not well remember whether
I Ui name or not. Which pro-
1 Mr. Waile and I, that he
I the raising of 3,000 men ;
lokes it was first mentioned to us we
tfktji hsd been sure of many thousands
' ^HSB hour's warning. Then it was
ilsw 8,000 men might be raised, and
""^ do something to the purpose:
wA what methofl we had con-
li|i»fir the management of aflhirs iu
~^' I as foUoweth, and they could
s mnr way, so it was concluded
IMd the suburbs should be divided
,-^-^^JjtB, and one man ma^le choice of
jijldsmsn, who should chuse out ten in
pMia that he could trust, and each of
■HiillM out fifteen, whicli woukl moke
division, so that twenty diviKiuns
e 3,220, in order to which a map
I to be bought tlie noxt day, and
I drswn out u a particular [>aper,
^ every street and lane iif note in it,
larth. East, Souili and \\'< st bounds
kH^and to be brought the next niCfUin<jf
^Mhne nights afier ; ai tlic (irsi m»v-tin<^
iii^cei uiat noue should know of iUin
jp^tii. <oi'tbe chief managerK) till all the
MPi secured, and that these nevcn, 1 be-
^^to stay long in liondon, sliouM nieit
'"^^ I «r mree nights till all was coniidet-
" I meeting Runisey and Weat would
I aaying, there was iwithing like the
' Bcss, meanintf the taking offtlie
e* and that it mi<;ht tie e<isily done,
A to or from the lM;iy-lioiu«i', but f
any as^rae with liini iu it. No\t
ivas bought, and liroui^lit to U>jiL\
the Tt'uiple, w lioru sfjuit^ met to
and draw mit the diviHious against the
Hag. The nr;xt place *. wc met at, I
i dw C^tk-ta« em in Fle<'t'Stri*et,
inof the dtviftkoiis wcru brf>iight, all
^jIlM, and then it was cousidereil
~ 1 ha ^tributed, being we were
most strangers, and agreed that Richard Good<^
enough, who had been under-sheriff, and so
had a general acquaintance, should do it, who
was willing to undertake it, the rest of the divi-
sions to be ready against the next nieeting,which
was two or three nights after, at the Green-
dragon tavern upon Snow-hill, where when Mr,
Gnodenongh came he told us, That he had
disposed ok' some of them, and did hope it
would take effect, and that in a wedc or ten
days lie should have fixed the twenty men ; the
conskleration how things should be managed,
was deferred till thev were sure of the men,
only some mentioned their opinions how the
Tower, Whitehall, and other places might be
best surprised. The Tower was thought raijo^t
be best gained in the day time, Whitehall and
other places in the night, with many such
things "in way of discourse: Rurasey was still
upon tlie old strain of killing the king and the
duke, saying, at tbis the last meeting I wan
at, going for Bristol next morning, that it might
be done in Windsor-park, and that he would
undertake it, but not excejit every one there
present would go with him, to which not one
consented ; I replying that I was for no such
tiling, but seeing the other busmess had gone
so far, and was knowu to so many, if they
could bring it to bear iu London and other
places, I rashly said, rather than tail of Bris-
tol we will undertake it at noon day with an
hundred men ; to which Rumsey said I was a
hold fellow ; they then pnimised, when they
were sure of the men, to advise and take care
for some arms for us at Bristol, and that we
should have some great person come down to
head us ; but 1 heanl no more till the news of
the discovery came in public letters; I re-
member one time when Wade ami I wus with
Ferguson, lie told us that the duke of jMon-
mouth was brought to a low comiition, all his
iilaces beini^ taken from him, nnd liis tenants
HI Hcotlaiid (lieing so sc-\erc-Iy doult with upon
account of their n.'liQ;iou) wiis not ahle to pay
rent, so that his esuue tiiei'e, which was ac-
counted worth 10 or 12,000/. per ami. did not
yield him the hist year 2,m»/. that he was uot
well pleased with tlie maua'^ciiient of affairs, and
desired Mr. Wade toap|H)int a place where he
would nUH*t the lord lit rr^inl, and sir Thoiiuis
Armstrong, to diMX)urse them, to which Mr.
Wade replied, he would mcut none of tliem,
for such great men had betrayed the imtion al-
rpady, and ensnared too many thousands to no
pnrp«u»e.
How it was to have been acted in BiistoL
We concluded that the only way to securo
Bristol would be by a surprize, 'whieli with
lUiniit 3.iO men (150* of whieli wc depended on
i'viMw I'aunton, the other 200 to be raised in
and a}w>ut ihe city) might easily be done al>out
four o*eluck in tlie morning, as soon as the
watfdi were gone off, without the bloodshed of
oiio man, thus, dividing the city into 14 parts,
so making 13 posts brides the main guard,
which slu)uld at first have been at the Tbul/y ,
f7] STATE TRIALS^ 36 Charles II. l6Sl^^Proceeding9 against J. Hoihi
(which Is in Bristol as the Exchtnge here) we mercy, it having^ been our resolution n
supposed 20 men mi^ht be sufficient for each
post, and the remainder for the main guard,
out of ^vhich might be spared lour or six files
to be constantly marching about, and to assist
where there might be occasion. The method
we designed for the raising of 200 men in and
about the city was thus, first to find out 30 men,
two fur each post, and four for the main guard,
who might be able each of them to procure six,
and to command them, which would have
made 14 for each post, and 28 for the main
guard, to whom the Taunton men should be
added, riz. six to each post and the remainder
to the main guard, who should have come in
the day before, some at every entrance of the
city, and lodge themselves at inns and ale-
houses as near the posts they were appointed
for as they could : each man beinff to know
hb post and commanders bctbrc they came,
the Bristol men to lodge themselves and arms,
with arms for the Taunton men, in an house as
near as possible to their posts, and to send one
out irom each post between three and fi)ur
oVIock in the morning to observe the motion
of the watch, and to advise as soon as they
were gone off, that they might all immediately
repair to their respective posts, calling the
Taunton men, and as soon as they had tj^ained
their ])osts, to send out a file of musketeers to
fetch in such and such men in each of their
divisions as they should have had an account
of beibre, and convey them to the main guard,
which in the 14 divisions would have been
about sixty persons, rommission-ofiiccrs and
others ; then to fetch in all the arms and am-
munition tliey could find, which two thingx
bein{>- done (us we supfiosed might be in a little
time, and without any opposition, the posts
being so near each other, that it would nave
been impossible fi>r .iny numlxT to get to-
gether) we resolved next to declare the reasons
for our taking up arms, and to encourage all
to come in to us that we could trust, not
doubting but we should soon luive had many
thousands in the city, and out of the adjacent
4M>unties, Gloucester, Somerset and Wilts.
The Reasons why I did not come in, &c.
When the news of the discovery first came
to Bristol, and some tune before, I was in some
trouble by my creditors, and forced to abscond,
thongh tnought I had sufficient to pay them,
only desired time to get in my effects, their
mercy I feared more than your majesty's, and
thought if I should come in and find mercy
witli your majesty, I could at first expect no
better than a prison, and if from it discharged
by your majesty, to be kept in by them upon
account of my debts. Secondly, hearing there
was very many, in and about Bristol, sup-
posed to'he concerned, and I, though knowing
so much, being able to prove so little against
any man, but such against whom there was
sufficient proof without me, feared that if 1
should come in more wouM be expected from
me than I coukl prove, and wo might fiil of
cover the design to any of our friend
managers had agreed both upon time
thod, therefore considered how to n
escape, there being then a strict seat
ports thought best to continue in £n]
some time, till the heat might be ove
got an ordinary habit and a little hoi
Ws. price, and travelleil the country i
dealing in wool, in Gloucestershire,
shire, and Somersetshire, till about tL
of August, then repaired towards Bri
b^ letter, with my wife's assistance
friends thereabout fearing to act for
vailed with a poor man who had a sr
about ten tons, for 20/. reward, and
per month, for six months, to go wit
France, and from thence to the Wej
or where I would, my name being tl
proclamation or declaration, if it had
not have prevailed with the man to go
So tlie 23rd of August sailed from Kin
for Kocliell ; the 25th proving bad
cracked our mast, and so put mto St.
Cornwall, where we staid till tlie 4tl
tcmber, then put out again for Ho<
meeting with contrary winds was io
several places in France, and gainer
port till the 17th. In Rocliell, i In
with brandy and other goods, and t
October sailed from thence for the Wi
(being willing to know how my con
there, that my creditors might have tl
though f knew I might ue much
in France) and arrived at Barbadoes
of November, there 1 heard of my no
in the Gazette, therefore staid out '
landing part of my cargo, from theni
to Antigua, where 1 landed and dispo:
remain inq[ part, sta) ing there about
but it being too soon for the croii,
charge being the same, lying still
farther, also thinking it not safe t«
there, resolved to see the rest of the
Islands, and so went down to Mounser
St Christopher's, St. Kustatiaand Aug
so back again to St. Christopher's, i
that to lie the safest place, I being J
none there, where I staid about tlirt
About the 14th of January I wrot
factor in Nevis about what was due to
on receipt of my letter discovered m
sir William Sta'plcton ])resently sent
rant to St. Christopher's to apprelient
liefore it came 1 was gone down to St.
expecting to meet my vessc^l there,
had sent up to Barbadoes, and it beii
where 1 was gone, the deputy gover
Christopher's sent five men with hi
af\cr me, to %vhom on sight thereof 1 f
though had an opportunity and mi
escaped, but was rather willing to c:
at his majesty's feet for mercy, than
a life any longer, not daring to apuc
there was need of me (among my tac
I doubt will take too much advantai
trouUea for my creditors' interest. J
STATE TRIiOS. 36 Charlbs IL i6S4.^Trial rflVm. Sachevenll. [aO
t a prisooer 13 days, where I promised
un Hcapleloo tliat I would make what
cqr I could, givint^ him tlie names of
alio I had acquainted witli it in Bristol,
I fttppuse he natli ^ven au account of,
If him that it might be kept private, for
Mimown they would hare aifvice of it ;
Pti ikH kept so private as I expected, for
|ht 1 came off I was told of it, therefore
m they wens advised by a Bristol ship
me aw ay before us, by which I wrote
pofd, 1 suppiTse she might be at home
An? us, we being nine weeks and five
JUl that I can say against any of them,
.miiiani Wade who is betbre-mentiuned,
I aoquainted them with the business, as
BiiB many thousands in Kngland were,
I. fopputte they wooM have been con-
. Hereumler is an account of many
fenooA that I have hcaj-d was concerned
toign lor an insurrection, which is all
. am call to mind of any thing material
IV I heard concerning the Phit.
m he mentioned the names of se^'cml
w if your n>:ijesty is graciously plrascil
It me, ii wWl be a sutiiiient warning to
Vcvtr nit'hiiiijg in tliiugsof that nature
>$ wad I hfi(ie I shall ha\ e the opportunity
of serving your nuyesty and my country in the
promotion of that which brought me into this,
and cost me many hundred {lounds, with soma
years* pains to bring it to that perfection I did,
viz. the hnnen manufacture, whiph many ho-
nourable persons about your court have heard
of, and I can make it appear that it nili employ
near 80,000 poor peonle and 40,000 acres of
land, and bring in and save your majesty near
1200,000/ per ann.
Another thing which I think I may sen*
your miyesty in Tabroail) is this, when I left
£ngland I knew tliere was many who were in
trouble about their opinions would willingly
hare left England if tliey knew where to go,
that they might have liberty. There is a very
fine island in the West-Indies, good land ami
well watered, which, by such people, would ha
soon settled and prove a great advantage to
your majesty and successors, fur it would soon
exceed any island, except Barbadoos and Ja-
maica, it lies so nc!ir a bad neighbour, the
Spaniard Porti-ico, that except a considerabla
number go together, it will be dangerous living
there ; but if no great alteration in affairs sinoa
I left England ; with your majesty's luwe,
enough might b<> prcvnifcd with to gu and set-
tle it at once, ^^ liich will not only serve your
majesty as JK'foro, but clear the nation of somo
hundreds of disafllrtcd people.
t The Trial of William Sachevehell, and Nineteen others,
. al llie Kings-Bench, for a Riot coinmilted at Nottingham :
.• SffCHAKLisII. A.V. U)84.*
BlMendant^i having hv.Wno. pUadcd Not
lta;iicre broui^lit to their Trial un tlio 'Jnd
%. lt«4.
VfC^icit. i 'all the defendants, IVilliam
■nselL, e«q. and others.
WL FtUerft n. We ap[K!ar .
ItfCrtiu n. ' fiardez vjwtres challcniros.'
Itar Humphry Miller.
IPS—- 1 .
f All was ncie of the numrmns l:iigi(»(is
^ . which arrise mit of the attacks
Ijbf rbaflers of Corporations throiiiriiont
Which was done, ami the twelve being sworn
to try the cause, lieing (reiitl(>incn of the county
uf Rent, were tln-si» tollowing: Sir Humphry
Miller, sir Henry Hosvile, \V illiani Lambert,
Charles Wheeler, Uichard Marsh, Kdw. King,
Humphrey Stiles, Walter Hooper, James Mas •
tors, liicliard nritton, Kalpli Petty, mid Ed-
ward Ualhin-st.
and tunif.Ml to an avoueil practice of garbling
Corpnraliofis, in order tc» c*arry elections to the
parliament, aiul a Conni)iltu<; of Council was
, to which attaiivs the cniwii was appointed tt» manage the Jtt^ulations as tliev
werc calleil ; ai"d there was an itinerant creiv
of the worst of men that \trought in the towns
to he rc^ulaied under the direction of the com-
mittee. These were termed Kiyulators, and
accordin^r to their eharaclers and dt»iKnaiion-4,
mayors, aldermen, recorders, connuoii e<iuiiei!»
antf freonien, were mmliiied and esluIiliNlu.d."'
by the nuctcss oi' the (luo War
the City of London. (Sec the
in that 'Case, \i»l. U, p. U^Ji)).
I oli)v<t which originally excited
:, «rutbe |M>wer of nominal ins; Jurors,
iMof the right to appoint sheritls. (See
moid Shaftesbury's Case, vol. 8, p. 785).
^"ihave bi^en vtiry aoon percei\(f<l that
ilioii of the whole magistracy of the
I ami f4' a majority of the 1 louse of
■i might be secured by the same
Xorth (I^A- of Lord Keeper Guil-
See, also, sir John Ueresby's IMemoirs tu
which Mr. Hume (Note to p. '2tij, \ol. «i, of
his History, eililion of lMu7) reCeis, when he
admits that the transfer of the riuht uf electi'Uj
from the people to nia^n>tr:ites named hy tiu
crown, wjiS in reulitv ii«'iiiii»:;" ihiun-nt fn»m
^p. 1U4, 8vu etiit. of \^U\i) tells the king's naniini; the inembrrs ^ uiid lie iio-
'oillrada of Chart«rs ran lu excess, ' rice;; that the wauiv wct ol ;iuiltur.tv hud bc«a
SI] STATE TRIMS, 36 Craubs H. iSSi^THf/^ ITm. SukeunU,
CLofCr, Gentlemen of the Jmy, hearicen
to the Reconl :
* Sir Robert Sawyer, knt. his majesty's At-
« tome^-Gencral, ma exhibited an InformatioD
t in this court against Wm. Sacheverell, esq.
c Georq^ Gregory, esq. Richard Mansfeild,
employed in all tlie boroughs of Scotland.
Yet has the Prince of Orange been blamed for
not summoning to the Convention the members
of king James's Farliament.
In the Cases of the duo Warranto againrt
the City of London, already referred to, and
that of Pilldngton and others (toI. 9, p. 187),
and in the Notes to those Cases, are mentioncNl
many particulars of the distractions which pre-
Tailed m the metronoln. (See, too, as to South-
wark, the Case or Slingsby Bethel, vol. 8, p.
747).
The following Extracts from Narcissus Lnt*
treira '' Brief Historical Relation," MS. in the
library of All-Souls' collei^e, Oxford, throw
farther light on the proceedings i^nst Cor-
|)onitions in genctral, and tlie distractions of
the city of London in particular :
" Nov. 1683. Some days since, a person
unknown, came to the house of Mr. John Du-
bois, who stands in competition to be one of
the sheriffs of London, and left there a packet
for him, wherein were inclosed sereral treason-
able and seditious libels; a while after, tlie
same fellow came again and brought another
packet, and then he was served and carried
before the lord mayor, who, on proof, com-
mitted him to the Counter ; about two or tlirce
days atlcr, he was admitted to bail, himself in
'20bL and his bail in 100/. each ; two or three
days after, the sessions coming on, a bill >vas
found against him, and he and his bail being
called for, neither of them are since to be heara
6f : this is looked upon by some as a hanpy de-
liverance to Mr. Dubois, for undoubtedly had
the pa))ers lieen lodged there, Mr. Dubois
should quickly have been searched for the
same, and it would have been construed to be
a new desiirii a«^nst the government, for the
|»apcrs contained matters of dangerous im-
portance, some were libels against the king
anil others, and thiro was, wa is said, a paficr
of advice to Mr. Dubois, as sheriff, to ruiic ihc
potte comiiatut to meet an uruiy t>j liat c conic
out of, tScc. to op|KMe a aibitrafy jKiwcr. The
Dissentert bate been prosecuted lately iiioi-e
violently than ever; for now the cinii-clr-
wardens of most parishes ha^ c prcscutint them
to the ecclesiastical courts, whu have pro(H;< Jed
against them even to excomnmnic.il ion, w Ihio-
by several hundreds in London linvr i>pt:!i slmiI
to the De\il; but this is made use uf only n^s
an engine to serve a turn, which is, iSt. Th'inius^
day approaehing, \« hereon the conimou cunncil
men tor the city of London are choscu ; this,
as is said, is to incapacitate Dissenters to i ote
for any one, whereby if the Tory -party can
procure such a oonimon council as is tit for
' esq. Henry Plomptree, esq. Cbarlei Hm
' son, esq. John Greaves, gent Wm. Gf«
' cent. Samud Richards, Rob. Green, Fi
<Sahnon, Arthur Rkhards, Ralph Be
< John Sherwm, William Wilson, dark
< muel Smith, Thomas Tkigg, Rkhwd 8
their turn, havins the mayor and mmM
of the court of al&rmen for them abetdy,
intend to surrender the Chatter of the e
London.
** Sir Geom Waterman, aldermaii c
Bridge-ward, being some time sinee dem
lord mavor gave out summons Ibr the c
of an aMerman in his stead. The compi
on one side were de|mty Danidl and snr
Russel, OB the other Mr. Fapitkm and
Shute ; but the majority bemg mathr fi
twn last, the lord mayor was pleaaed^ ii
midst thereof, to adjourn the polL
" Mr. Pilkington, aklerman of the wa
Farringdon, having laid down his g^own
lord mayor was pleased to issue out his pi
for a new election of an alderman of that i
the com]fetitors were the lord mayor an
W^^illiani Turner, on part of tlic aldenm
one side, and sir John Lawrence and •■
bert Clayton, on the part of the aldenm
the other side. In behalf of tlie comm
on one side, were Mr. North and Mr. ]
tlie two sheriffs ; on the other side, wen
Dubois and Mr. Hawkins, a sciiveBer;
choice bctngf doubtful, they came to a poll
there was ki\ or eight commissioners appoi
to inspect the same, w ho would admit no
to poll tliat was excommunicated, or that i
not take the oaths of allegiance and snprei
which were tendered to them ; a thing i
wondered at by some, as new and withoo
precedent in such cashes ; how the choice
fall is yet uncertain, though most thiid
Tory partv will carry it, haxiiig by thv
device cvcluded all the Uuakers^ who wi
swear at all, and several of the most mod
persons will not poll at all, as not iikuig
impositions.
'' The election for the alderman of the
of Farringdon ^Vithout being over, and
North, one of the sluTiffs of London, bein
turned to the court ot'uldenucn, as duly ch
and sworn aei'ttnlinglv, these ihiiiffs ar
inarkablc in ihc in:ui:i<;fmiont of tnc a
the fKiths or;<llr:rianL-r and supremacy im]
on every \otcr; x\\\\ (<nmm*ssioneiv tlurt
derud tlicnn ntitorionNly kinnvn to be vi
persons for tho Tory party : then the m
days adjouniniciit aii<l delaying of tlie
antl kcepiro' the iioll-lKioks oi»on, wherd
fir>t tlicTui'ie.i UimVui;; the Whigs had i
tiie niuiorit}', tin y delayed the iniH to sec
uukuuwn |M'i*sonK to balance tlic |miII, wh
there wut*? sttcFal of the iiihahila.its of W
iryeni, jiliMruits of (/liil'orJVs-inu, who i
used to \ jte, and divers who li\ e not ii
wanl, nor pay to rhun!h aii'J |Hior : the 1
party finding' tilings thn-; nnnngrd, .sevei
theui vmwX and |M;liii«ii>id the lord mayo
n oHMMff. JoMb TurpiDt
I, Ifjioipliivy BArkrr, aod
that wUereastlkr *29ili dn)'
tbe d4Ui y«ftr of the kini<,
Jiflmatily m N<4t]iigHmiii« in th^
I mid lo^m^ duly fumnioiied and
■Mt Mbre G«rr«8 Wild, then
€ Hkm Ml l»wii, fm liie elt^ctin^r and
uC m owTor of Ibat Unrii, foi- tlie
tifOtm office of mayor of that tmra
«r Ibiii wsxi folU»wiiif , according
Bi ittd tCBor of tfertaw ieitcfB patent
^poUi
STATE T&ULS^ 36 Ckahles II. \6U,^end oiher$Jor a Rht. [S*
*■ in that behalf before i^Tantad^ by uur s/jvere]|^ti'
^ lord the kin§f that now is, ttato ihe mayor,-
* aHernjen^ atid burjfesses of the t«wii of Not-
* tiugliAjn, in the county of th^ said town \ aad
* that in that Assembly'the said 0«rfat»» bein^
*• tlieo, ai aforesaldf mayor of the said town,
* began to proceed to such eiectiun ; uod that-
* then and there the said mayor innde, and
* caused to be made, a pufoUc pniclamaTion for
* the departure of all persons from that election'
* that were imconcerned thereio, and for keep-
' iug tbe hang's fieace ; and that nevertheless,
** May« 1685. About this ttme^ persons
were Tery busy in elections of uitfuibersi of the.
House of CommoDS to serve in the eusuiog.
l>arUament; ^reat tricbi and prarticea were
used to bmuc in men wcU-affected to the king,
and to keep out all those they call Whiu"^ or.
Trimmers. At some places as Bfdfuni, &e*
they eboae at night, giving uo noii«?e of it; in.
other horouffhs, as Sl Alban's, tbev have now.
regulated fit? elet-tors by new cltarters, ia'
puitinir the election into a selected number,,
wht-n It was before by prescri;<tion in the iu-.
habitants at large. In counties, they ad"
jourtied die poll fmm one place to another to
weary the fieeholderSf retusiiig also to take
the votes of excommunicated persons, and-
oilier disaenters ; noblemeo busying theniselrea
H'ith elections, getting the writs and precepts
into ttietr hands, and managing them as they*
pleased; King commanding some to stand} and
ibrbidding oiliers, polLItig many of his servants
at Westminster to carry an cmtion ; foul re-
turns made in many places, and where gen-
tlemen stooil that they called Whigs, they.
offered tbem all the trick and affronts ima • >
ginable.
** June, 1687. The Lord Chancellor dined
lately in tlie cit}', and waa pleased to discharge
three aldermen on their own desire, sir Thomas
Griffith, Kir Bt^^njamin Newlaud, and Mr. Peter
Pallavicin, and he told them his majesty liad
given the city the privilege to choose their
sheriffs as formerly, and that the lord mayor
might drink to one as £$hmif, free or untrce
of the city, ai^ that he should either dneoc.
hold.
** June 17- The lofd mayor and aldermen.
hare lieen at Wintkor to thank, his msjetity for
his grace and favour to tbem, in permitting
them to choose their sherifls.
*♦ July 12* The city of London hare're-
ccived lately above 8,5Q0^. for fines for sheriffs
and aldermen."
Bprat (In bis Second Letter of Excose to the
Earl of Dorset edit 1711, Bra pp. 16, 17, at
cited in the Bi(^rapbii, article Sprat) seys^ as
1 uti'lei-stand him, for his languag*' ^ not so
iiu equivocal as might be, ** that under king
James a Quo Warranto **as actuallv issued
Mtt a^ain**t the Ro^nl Church and Slchoot of
tVeiitnunster/* St-e <ionie arcountvf ><ptiit in
the introduction to the Trutls for tbe Hye-
R<»tts# Plot, ToL 9^ p. 30S, of this Collection,
ibr m scmtiiiy of the poU ;
M limned llmpli h«tdhr sver koowti
b^ ibese ^racskes >ir. North had the
balK be«D pleased (o make an
a;{mtDit mcTchautji' spiriting
ttSTky yoting children, and dt-
i«w to proceed fur the future in
tf tbcy send beyond sea.
for an sddflrman of Bridge*
i^ room of sir Oeorge Waterman,
isai last, afW several adjourn meiiLs,
'luu r It was by most persons
ee irould ikll on Papdlon or
exflommunioations and call-
who Itad nw rig^ht, the choice
d^tjf ^ Daniel 1 1 by seven per-
j^ otliera say« notwithstanding
pro«^€3diag», the two first had
2U if howefer, DanieJl is aider -
dr tbat Wiu-d.
Tbofiuts Huot^ a gmtleman
titr writ a jpamplilet intitled,
t Charter of the City of Lon
; Ibit neitlter tlie charter of
or of any other corpora -
* by law, wiierein are sercral
bis been censured as a libel,
bath preferred an tnfor-
Itbe persons mat surrendered the
town of Nottingham, but Mr<
1 would not at l&rst allow it
SatS* TliaCorporatiotiofthectty of
lAviogp scsite Lime Hince vurremlereil
mr^ Ave, as n said, Utely petitioned
ay io Ittf • it igatn.
10^4. The NcKluigbam Rioters
of ILiog's-bench to reeeive
Wm* ^chevertll was fined
•. GrtfOT)^ 3(X) i Mr. Hutchln-
iLtf ml according to the va-
aiid thai alt of them fmd
behaviour ft»r a twelve*
Tba mayor, sldemien and
oflhedt; of l>urlMim, bsvt-
r 0)«rlrr into the bands oi f he
who has menrcd to htm-
ia tbat 8ee, the power
aflniiing the maTor. re-
oonunoa osmuai m the
S5] STATE TRIALS, 36 Chahlks II. 1684.— TnVi/ of IVm. Sachevereli,
* tlipy iW said Wniiam Rache^'crell. and xht I
* real oi the dWundant*, hfini; persons well
* kinwiuf: the premiios, and imtcncerned in
* that election, but being ill-disposed persons, !
* and to disqniet, moleAt, and trouble the peace
* of our lord the kinjf that now is, antl the
•common tranquillity' oF that town, end the
* aforesaid election wfiolly to hinder, (!id during
* the UiDe of the said Assembly, and after puh-
* Ho prorlamatiou niaile as atoif said, viz. the
' said 39lh day of September, in the n foresaid
' 34U1 year of" this king^, at the aforesaid town
* of Noi'ingliam, in tlieoouny of the said town,
' with force and aims, &f\ riotously, routously,
'unlawfully, and stdiiior.sly, toj^cthor with
* noany other ill- disputed ]>cvsons, and dis-
* turbei-s of the peace of our saitl lord the kinjf,
* to the nunnbifr of 500 persons, to the said
* attorney -^enf-r a I as yet unknown, assemble,
* congrcg'iiie, and unite themselves tn^jether,
* and tljemsdves to(>pether continued, to disturb
* the peace of our lord the king that now Is ;
* and that then and thuv the said William
' Sachrveroll, and the other defendants, the
* aforesaid unlawful and ill disposed persons so
* assembUd, conjjreg^atefl and united then and
'there, with force a!;d arms, Sec. liotously,
* routously, unlawfully, tuinulluouslv, and se-
* ditiously* by t he ^nnce of 7 hours, to disturb the
* peace of our said lord the kin;^, and lo continue
* tlie said riot, did excite, move, persuade, and
* |)rocure, and then and there, oy the whole
* time aforesaid, made, and caused, and excited
* to be made, great rumoui^;, clamours, terrible
* shouts, and unusual noises ; and then and
* there, with force and arms, iScc. riotously,
* routmisly, unla\\ fully, and s>edi(ious]y oue
* mace, btuiji the cnsiu^n ofoflice to thesherifls ;
* of the cduiily aforesaid beloii;»inij, froiu one "
* John ]\I.din.'lhe said Juliu Mulin beinq* ihcu ■
* one of the slienris of the town and louiity of j
* the t!>-.vn or\oUiii!,'lKun, at^iiinst the wili uf |
* the alljn s!ii-l John Malin, took, hud, canie^l .
' awav, ami (ii.-liiiiie.K to the inci'iii<; of ijn::it
* dan(r«.T, and niOviiiL<f of tntuiilts, anti cHusiun
'of much blond, to tlio jrn-ai Ifrror, discpm't,
* and fear of all the Ywi^v sidi-ti is ifoursaiil
* lonl the kin'^-. to the »;vil i.'xaiiipk>i'f all oiher^ i
* ill like case oHfiidiiii;, and ii^aitisi itif \nacv
' of our sail! lord the kini;, liml uow is, Li:^
' crown and dijrnity.* To this IiiJonoalion all |
the DefviifLmis lint Kicl.ard M.in.^uild aii«l ;
IKiiry I'iuiiipnv, have pl.'.ulcd Not (iuilty,
and i'ur lv\[\\ pul lih-mselves on the roiir<:/v.
lint tin* ililind.'i.Us huvv ulu-^jed llKit t'v.v in- .
hii!):iants of tiic ni^vii :ind ntuntv of ihi- U \m\ '■
of Notti(i>'haiii ou^ hi not to lie drauii «>(ii of J
the s.iid count V, smd thai the e«uuit\ of K( i:i j
is ilii.- uc-xt C'Muiiv tir lb: '.-ouu.y 'd' tiiL- t«r.ui of ;
^i(»ltin;^li:llll, and thrretuiv h.iu* pray.il tlia: :i j
jury ol ill;- county of Kmh^ u\h^\i\ trvt'se i-.-ne; I
to whiili ih«- kiu'^'s iUi'»iiivv has iiw;r(«*d ; :i:ji|
you Imjujt fri'i holiter.% of liil- rouniy cl' Kiiit, j
and reiurn* il, ami sworn l«) tr^ ihisi au.^t.*. ;,-^»ur '
cliurif^ is ».» i-.>(piire «hit!ior llu* dtfenUunis, '
or any of tin in, are (juiltv of llu" ufleme in
this iti formation, or ^lot Guiltv, uud if you iitnl
them, or any of them ijuilty, you are
so ; and if you find them, or any of thei
ffuihy, you are to say s«> ; atid hear yoii
dcnce.
Then ProclamatiuTi was made for evi
in the usual uKuinir.
Mr. HolloiL'ct/, !May it please your
ship, aiiil you fienllemen of the Jury, 1
an Infoniifltion pr«.f?rrwl by Mr. Attorne
neral. ccfftiust \Vil!i:iin %Sacheverell and g
for a m«ist jiotoriou? riot : and it sets forti
up'in the 23.h of September, in the 34il
of this king, at the town oi' Nottiogfham,
was ai! assembly duly summoned beliire C
Wild, then mu\or of the said town, fi
election and swearing <jf a new mayor <
said town for the year ensuing- : that the 1
bccran to proceed 10 election, and made p
mation for all person > to de[)art that we
concerned in tne election, that the defet
beinfi^ no way concerned in the electio
being ill disposed persons, to disturb the
ot th»t place, and set the town together I
cars, did in a riotous manner assemble
selves with many other ill- disposed perw
the number of 500, and continued in th(
for the space of seven hourb', with a grei
of noise and tumult, and with force anc
did riotously carry au*ay and detain a
from one Jolin Malin, then one of the s!
of the town, against his will, to the great
of his majesty's subjects, and to the evil t
pie ot all others in the like case offending
against the king's ueaue. If we prove
any of thrac defetiuauts who have pleadc
Ciuilty, to be Guilty, you will find them
Mv. Recorder (sir 'f iiomas Jenner). J
please your Lordship, and you Gentlen
the Jury', I am of counsel in this cause 1
kinir: This i> an Inforuia'ion against a
oi 21 persons for being in a notorious rio
continuing in it for two days together.
]deuse }ou, Mr. Saclieverell he is in the
of them, and ho and seven more of the
fe:iduiits, very eoiiiiiilerable persons, we
at alt coiiceriicd either b\ any obi char
bv the new charier in this election, but
stiaiigei-s, and \ et they must needs coi
purpose to inflame and set on the othc
>ha[l iiuine iheiii th.it were not concer
tin: election, William Sacheverell, Geoiv
gorv, i'liarlis Hutchinson, William V
cNiik, Jost-di Turpiii, Nathaniel Ch
s iit;ut \'.Yi\ liarker, and Joseph Astlin.
p. ooiis. ^L>!itlf-i!ien, had no manner of pv
to be :\t thi^ phee upon the account of ai
tion Tin; iiiartrr of it \ta.s thus : Michai
div, 1<}V.*, ilie mayor that then was, I
U'lid. \^as at hisov. 11 house, with some
l-nthriM, ill order to go to church that
i:ig. a-.'fonliug to the usual custom o
place, aL tlw- tl.iy ofcb-ction ; but having
lit;.: th« If \\..i :• charter coming dowi
e\pi-4ird cviry moment, truly the othc
Mr. Saclit Acrell, and the re»t that were
for he was prttscut liiui«elf, were very 1
STATE TRIALS, S6 Charles II. l684.— Mff othen.Jor a Riot.
tS8
D church very early, but I bciieTC not so
Mit of x«ral t<» ifo to cliurcli, but more to
lo a spce«ly electinn, it* possible, before
*w charter come Jovi-n. The mayor at
me time dcsirotl tUein to stay a tittle, but
■ot prevail, and tbereupun they (((» to
b,aiid while thpy were there, tlie new
r comes, and then ihe mayor bavins^ ifot
rv charier, i;«n!8 into the council- hull,
tads Ibr the Inioks from the clerk, who
heo io the church, and be came and
b( them. When tiiey came to the
il-baJI, the mayor was proceeding in
!• have hiniselt' sworn u^mn this new
r, and they having ^onte notice what
mo^ aft the council- hull, were willin*^ to
all the haste they c«mld out of the
ht and came down to the council- hall:
ihen they came there, the mayor tells
hm buitioestf, that he hud a new charter,
fm ^oing' to be Kworn according to the
i cspreas comniission ; and SHcheverell
(■p in the front of tbem, and sayt, We
bic BO new charter ; we will have no
■■vor as you would have ; but we will
alSraaTes mayor, and that was the out-
A Gcaaves ma vor, a Greaves mayor ; to
inw, that all the mayor and sheriffs
Laii couKi not pacify them. But thus
■ids a tumult and an uproar, by the help
pnM, Wilson, who 1 believe will give
■MHby and by, what he had to da there,
|0V As VM concerned in the election of a
tf» M fea^^h the mayor wan tbrccd to
pfKgMd did ifo down out of the council-
ribb iMstbe common-hall, where he got
Vrifaswo; and by that time he had i>ot
KJhi^ Ifcey came out of the council-ch^MU-
■It ahe common -hall, and acquaint the
■; that truly they had chosen Greaves
m m the council -Vhamber, and required
liflvcar him. Mr. Mayor said, they had
in is do to choose a niayor, it was nu
hi^ and thev would pruceeil to I'lec-tion
limg to the charter, he having now taken
tfh. This Tuisetl the tumuli highor, and
Jktn were i^A togellier about 500 per*
,m that at last some of the aldermen that
M ibo ouiyor, were fain to wiihdi aw fur
^■ischief, the tumult was so outrageous,
laijinK out the new charter was noi worth
pHBt others crying out, No new charter !
il erymg, A Greaves ! a (ireaves ! and
^•y stood upfiu. Tiie mayor witiidrew
paVB house, uithmuchaJo he got out
pWi» and when he was got thither, there
pJMsds to an ele«:iiou, and h bile lie wun
IJ^M, truly they having gotten sine of the
■away by ffirce, tlivy went to the crosN,
MR they procluinie^l their mayor, with
Mfcaoiaon and outcries, rejoicing lur the
■r they had gott'^n, and the new
■ they have defeated. While the}
li^ the* mayor having chosen another
riallie new charter, regularly caiiie
ipiWliinird that mayor at the market
>li wmak ID wch cases, and made pro-
clamation that the rest sbonld depart ; Imt in-
stead of that they witlistood him, and would
not suffer the cryer to make proclamation, that
any body could hear him; hut a great riul
they committed iu an outrageous manner, i-e-
sistmg authority, defying it, and despising it.
After this, this woiihrnot satisfy them yet, bn;
the ne2rt day, l>cing market-ady, they must
proclaim their mayor again, which is a prac-
tice never known upon any election ; hut at
the open market them l)efore ail the people
they proclaim him, with great rejoicing for
the new mayor they had gotten, and wishing
the people to stand by tiiem : and for their
part&, if they had not right d(»nc them now,
they did not cloubt but to meet with a parlia-
ment that should do them right. In this great
disorder was this town by this tumult, which
was thus headed by persons of eminency, and
popular (lersnns, who helping to carry on such
a taction as this was, it was great odds there
had not been real fighting, and battle in good
earnest; but it did happen to be better ap-
peased, and they went home, but ever since
their whole business has been to uphold this
power, and attend him up and doun constantly
since as as their mayor, and opposing the au-
thority of the mayor by the king's new charter.
We will call our evidence, my lord, and they
will every one of them s|»eak to the several de-
fendants, and the several ;)arts of this famous
riot ; and when we have done this, we hope
you will be satisfieil, gentlemen, to find them
guilty.
Mr. North. Will your lordship please to
spara me a word of the same side for the king ?
My lord, this is a proceeding of an extraordi-
nary nature, and if ui»t taken notice of, it will
be thought there is no law in £uglaiid ; for it
is a metho<l to have authorities qu<\stiMnefl, not
in Wcstmiiister-haU by the ruli:s of law and
justice, hut decided by noiric and rabide, and
gfiing together by the ears. My lord, this
surrender of the old charter, and liie sending
down of a new one, whs not secrrt. but well
known, and that occasioned the irreat cor.grc-
gation of tliese geiitleuuMi that had nothing to
do in the town, and no it was a [in-mcdiiateil
design to give a disturbance in the place, in
opposition anil alfn)nt to his maiesly's charter.
My lord, 1 d«» suppovw th.-y v»'iy w«.-ll knew
that matters of that nanu-e vere prop<-rly de-
tiTmiuahle ill a i\ay of law; and it the iiia>or
hail no authority by the new ehuilei' t«»* do
what he ili I, they kuew \ery well how to (pies-
tion him, and iIk-iii that jouird wiih liini. lor
il : but they did not think that so ctfi'ctual fur
their purpose ; thpy did not think til to take
that coursf, hut ruilivi- chose to pnuM-eil in the
methods of distiirbimcc, and that occ.i>iioi:ed all
that Mr. Nerj(*ant has o|»eiicd. Tlic lirsi step
they made, my lord, wasto :i|»jica.in tln'to\*n-
hall, there to make an rU'riinii of their ov\n,
and there to oiy up a mayor of their o\»n
choosing, \^ithout the authont\ of thf pic^-iit
mayor; which u as all n-rcirular from the be-
giiuiiiig to the cud, W hctt tlicy had dune that,
39] STAT£ trials; 36 OaAELBft II. i684.->TnVo/ Wm. SMcheverett, [40
then this mayor must be proclaimed up aiul
down IhetowQ upon market-da^a, when the
country c&me in, with great noise and great
rabble. We shall call those that were present,
nor can be |faralleled by any thing, unless by
tliat not lur i.tf .be common-hall, at London.
Mr. Jones. M\ lord, if the persons that bad
been concerned in election (for the town of
Nottini(iiam coosists of particular ficraons that
are to ooiiie aud act in this- matter of the elec
tion of the ma^or) had licen the only persons
that were met in this assembly, pos'ibly it
might have had some sort of mitigaiioo aud
excuse ; but. my lord, here are mere foreigiierfi,
people that liaire nothing to do in the mattei
nor in the corporation, bot gentlemen that
come out of the country with an armed mnlti
tode, and for them to come where they had
nothing to do, and makt such a riot, in such
an outrageous tomoltnons manner^ is the next
act I know to the highest rebellwn. For they
knew ?ery well what the matter was, by the
ones of A Greaves! a Greaves! NoTopiady!
no Toplady ! No new Charter! and you see
who were the abettors. In truth, the insur-
rection spread so far, that if the duke of New-
castle, who is lord lieutenant of the county,
had not cove with force, they had gone down-
right to Mows, and been all in bkiod. And if
wmdk proceedings be not pohlidy minished,
the king's authority, and the peace or corpora-
tiona can nerer be preaerred. We shall call
our witnesses to prove it ; 8acheverell was the
captain of them, and we shall begin with him.
Mr. Puwii. My lord, we shall make it short,
lor we shall shew without meddling with the
old charter or the new charter, it was a riot.
lUeofder. Swear Mr. WiM, Mr. Edge, and
Mr.HaU. ^
Mr. Foilexfen. ITiere will be one thing ne-
cesnry to be settled in this case, my lord, con-
cerning the witnesses; they call Wild and
other persons, they are members of the new
corporation, and we object against them as be-
ing witnesses in this case, and our objection,
my lord, arises thus: It will appear in this
case, that there is a controversy betwixt the old
chartor and corporation, and this, that the in-
formation is brought upon the new corporation,
whether the old corporation be still in beinf ,
or was at this time in being; and whether this
new chartrr be a good charier in law : the mat-
ter depends both in this court and in cbanceiy ;
a Scire Facias is tliere brooght against the new
charter, sod a Qua Warranto here against the
old. Now, uiy loni, it will so tall out, that if
80 be the new charter, upon which this infor-
mation is founilnl, be not good in law, we
think it got a with the defendants. So now
they call the nieoibevs that claim under the
new corporation to be witnesses, and thereby
they would have a privilege by their own testi-
mony, to maintain their interest in the new
charter, which wc thbk by law they oaghl
BOttOOD.
£. C. /. (sir George Jefferies). Look yoa,
Mr. Pollcxfen, though it is not fit for ns to
interrupt gentlemen when they are making
harangues, yet we must tell you, we do not
take notice much one way or otlier of the dif-
ference lictweun the old charter and the new,
for our business is to mind that which h be« .;
fore us upon the information, and we must srt
by all tilings that are not before us, and nil
take notice of them one way or ot her. Do yew
think we intend to try the new charter or tk«
old charter upon an information for a riot? ^ff
iu case there were a douot whether the old oM
l>e gone or still in Iteing, take the pntper w^
fur the dfctermiuing thosie tbini^N. Vou shJl
not think to be let in u|ion the biislneMi nt tt
riot, to try ihe vsiidity of } our charter ; if yM
have a Scire Facias to refieal the new clia.t8K •
or if you have a Quo Warranto a^raiust the dm*
charter, in God's name go on in a regular wn^;^
liut do ^ou tell mc Uiat supposing I he tM**^-.
clkarter i» an ill charter, and the okt one a |
f »nt>, thai right or wrong is to be tried by i
and noise P No, the busroess we are to tiyl
wlietber here were a riot committed by t'
defendants against the public peace or uo.
Mr, Hoit. My lord, we are upon the i
of exoeptkiQ to the witnesses; and they op«i'
it theoudves that there u such a <
in the town.
L. C. J. We will not try that
here at this time.
Mr. Ho!t. My lord, the in
cial, it is grounded upon the new ebaitir, and
sets forth that this Wild being mayor by vlrlM
of this new chartei^^^ -."V
L. C. J. He was mayor defaeto^ and I ml^
not know but he was so dejure. But sinipiii
a man do take upon himself to be mayar, wmt
it may be according tci the rules of nw lit W
not mayor, the way to know whether b» '%|'
mayor or no by law, m to take the bmI'
and proceedings that the law has appoin
but not bv tumults and rioto, we n
none of tnoee things to decide oonti
there must be noUiing of plucking out '\
another's throats.
Just. WUkint, Pray, Mr. Hoh, if the UlM
sends down a charter to make a oorponMll
shall all the people rise in a body ■cwml Mi
No, satisfy youraelf for that; if the lung awM
down his charter, the people shall not fly m itt
face of them that bring it. It is not oobm W
that yet, nor I hope never ahall. t
L. C. J. No, no, for the matter of righti ipi
are not upon this information lo detwrmUt
whether the old charter lie in being, or thenilF
one be in being ; but for that you mnst go aiil
cording to the rules of law, and take yoni
gular course ; and I will tell you by the i
It is not he that has the most company, tM|
afi Vmm
has always the greatest ri^it: we
Et riylit: we all kae9
very well, and I nave been m a place that Ml
been hinted at the bar, aod there indeed he A^
had most noise, had always most right, as tkMi
thought ; but we will have none of iImI
thingi, goon fbr your right ioangolarin^
mc Mic0i».
STATE TRIALS, SSCtiAtLEs II. leM.-^and othen.for a Rtot
No New Chnrtrr! Theo spoke Btr. Sflche-
?4<rcl)t Sir, says be, thi4 iM not oar tiitsinesi
berc now, we coiuo here ftir the dt:'<*ti«m of «
tnnypr by the old charter. Sir, saiil I, ( kao\v '
rtol Hiiy business v^Ju have here, nor a great
many ^e^tU;men tfiat ore here ; ir iruuM better
become you to be iu nriolher place. Kir, snyil
ije, will V"^ prot:€e<i to eltrclioii or no i* Sir, '
sitys I, I have a great deni mvre to do beibre I
can prncced to efcction ; 1 yims to l*c swora
myself, and to swear Itair-A- dozen » before I
could prficeed to election, in the room of tbo^e
that weru turiUMl out, to make tbein capable of
etecting-. And so they cTJed, No New Charter!
No New Charter ! A Grearc?! mny*>r * A
Greavea i]iay4irl Then they cried* M*\ Alder-
noaii Edge,* take your book, ftud proceed ta
election. Who ore you for, Mr* JVJuyor.* Mai J
I, yoa cannot proceed to tiny election without
my ton^itt, and I disclaim it ; and so, gentle-
tiemen, farcTicll. My lord, that wait in tb«
Council-boojte aext to the Guildhall.
L C\ J, What day was that ?
WUd ll was Frktay^&Iichaelmiis-day, 16821
I. C. /. Well, ffo' on.
Wild, So^ my lord, I adjourned the court
into the Guildhall, which waa a rooru adjuiaing
to that where this matter happened, and ue sat
a while upon the bench, and made a JitLla
speech to tlie burgesses of the town, and told '
Cbf m the king^ had panted a new charter, and
if they pleased to t>c «ilent, they sljould bear if
read. This was after I wag sworn ; for as soon
a» I *^me there, tbey gave me my oatb^ cmd
Rwore me mayor by the new charter. We
commanded silence there aeveral times, but
the burtreases were very tumultuous and it
was occasioned, as I belie re, my lord, by the
comiiij; in of two getitlemen, Mr. Gregfory and
Mr. Hutch iosoOt who came to tsril me, the g«n»
tlemen in the other room had elected Mr,
Greafes mayor, and desired me to come and
hear him sworn. Said I, they cannot elect
without my consent, and I disclaim jt, I will
bare nothing to do tn the btisiness. With that
tl)e Inirgenea begmn to be lo extraordinary tn-
multumit and outrAgeons, and keep such a
noise and a stir, that we were airaid tbey would
have uliickeil us off the beocb i insomuch, as
one that wis by, my brother Parker, whis)tered
me in the ear, says he, will you stay here to
l>e knocked on the head ? I told bim, I hoped
there was no danger ot tt^t. We commanded
*tileijce a^n and aifaiu, fur the rcadmg of the
new charter ; and there was an honest gentle-
man in court, one Mr. Bawd, a barrister at
law, that took it and read it very distinctly to
the buixesseB and the Cf*m^>any, as far as they
would gi?e him leare. I made proclumatton
fbr sileDce, and keeping the [>eacL* divers times,
and for all, that had no business there, to de-
part ; but they were §0 outrageous, tliat alder-
man Parker went away ; he was afraid of his
life, as he told me. 1 staid 60rac little time
ailer alderctiaii Parkt-r went away *, but tin ding
tliare wis nothing to be done for the doik*, I
a^jottroed the court to my aim btmie, and did
4i*» mam i sre ibuA ktcp lo ^e bii^olness
iMiHiieHoc.
. ^Mtj^km, My brd, we ere in a place
vtov Wir h0ftt such lldtigs will not be,
9M:mA»emnf io lm%r right iwtled by taw.
Mmmdzr £i««rar Mr. Wild. [Which wa^
ian^j IVay giire my lord and lUe jury an
ivltfl bapfiMiid at Nottiiigbam upon
'my« imt. TcU the whole mat-
Tdd. My Ifwd, and \ ou gentfemen of the
I was then mayor whrn thi<i business
«li«ii tbc single new charter came
mti «4 It cdun^ to my liandg, [ went
tttCfaeie^i ' :1h kinif to be sworn
} might be capalile
Lueir ruoins that were
' nme tiiere, I desired al-
ftlBift l^rU.; .»^ lUppon 10 gn for alderman
Hit, mhm m^m st tlie elMircb, that we mi^ht
%ap«i« p^^nlaHs. he beinj town -clerk, who
eSttc^erd lb i ; but in
mm \a6m tiois ^... ..-;'.^ .-.,.ir, with a
fpm ^Mft' fisJHiua With bim, as Mr. Sache-
•>vi^ wk » f»««l many mkmm that had no
FtmyBuoeitiiiaDyef them as
_WM Mr. Haai«Ttren, Mr. Hutchinson,
Mr. G«D, GrMMfy^ Mr* Green,
db^ Tb»inas PMyiie.
Paliu/t. He m not oiStied here.
r4^. Urn QOt dittwft binv |iray Itt hjm
We ^nhr teke notice he
m ootibwii in the infor*
CiMMCyottke^Miteiiled, what if
M mm mm^ astiefii that •!« not there, what
^ TlM9t««tviieyenl oUierm, but these
flit Mooff la the town, nor had
e g a^meiif ibisin were no bur-
' llMt WW WiyjKJ had no
Wf mm sees ta these gentlemen
, I leas a little anjazed to set!
I took the kingV new
^tt« r«c df Ihe bMc, and alderman Rippon
«« a b;^ m^ aide and I by the other. Gen-
ial^ saM I^ bave ia the Icing's new charter,
i^db W kaa hmm plsaaeil to srant to the town
dlfllqgtem ; aod, said I, Mr. ^(erjea^t Big-
W. wiftywo Ik plcaaed to cast your eye upon
^ mimtimfy iImt raitlemeu whether it be a
~^ Avttr, mad wim. are t!»e cnoteuts of it ?
\ ngpi W, 49 warn ask my opinton &a recoi-der,
aaaair Says I, 1 »«k your opiuion as
'l^iea and h'- f ^-ll not ^ve you
Ttianaai ' llerman Edge,
; Q|«»ii U, '■>■ ^' ' ytjtn opinion,
imje m r^smtk It as town-derk, Btr,
I tamw what 1 was by the old
lag t da oat knamt irbat I am by the
l«il isynor datvaa to do. No,
( w41 not; an. myWtl, Httd geivtle-
I the jimrj. Ilia rwA 'of the jieonle that
lteiaa», oM o«l. No New Charia *
43] STATE TRIALS. 3ii Charles II, i684^7Hd/ qf JVnu 5tfc»fwre//,
\ the rest of the basinets iLere, electing' and
tweariiif^ the loajor and utber ttfBcers. My
lord, piicscntly after I wbm come lo my ovi'o
buusot ntmes Mr, Cbarles Hutciiiiifio», Mr.
Geori^c tjje^ory, Mr. Samuel Ricbai-dt^^ aud
Mr. VLiliur Hh cards j aud tlii^y catne vtry im-
udeoily add naucdy to deiuiiud tb» mace.
thvy sai i ih»*y were sent to demand ttie muce.
^ 8&id If 1 tliii^k you Lave nothing; to do mth it.
L.C J, Were they c<^Qcet'ited in the elec*
[jki>\k liy tlie o\A cbafterf
Wild* No, my lord, they were not by the
ifiild Qor new, Dur noDe ai all* Siiid they, wili
you (ilea^ie lo g-ive ub your answer, whether
jfou will j^ive us tiie vosx:^ or dm ? Said 1, 1 re-
crivad il from a very good authority i 1 re-
Beit i:d it bv the king V authority , t^ud to the
kuktr's vutKority 1 will g'lve u a^aia. Said
[tilht'y, ]s I bat ull the answer you will give u»?
ifej, said 1^ that xn my a««wer : so tl»ty went
away. Atker we bad sworn all the men thai
i{e in till;: new ebaiier, we went to the etec-
n' of a new mayor, and we cho^ Mr, Toj>*
int'r * w lien we bad chose bim^ we went
I I Mum, iih the usual manner was, and
|i,„,...i..,. d htm at the market-cro&s, the ^eck
ay -cross, as we cull it ; and aa we were [iro-
siaimi)!^ our new mayor, there cornea Bberwtn
rid (jteiu, with a g;reat many more, abont 40
beUevL% or thereabouts ; and a^ it gr«w to-
Hrardf mtfht, they nbonteil and threw up ilieu*
Ekat^, and we thouj^bt they would have run in
l|ion ms^ and they cried om. No New C' barter !
!la New Charter ! A Greavea mayor! A Greavea
Mr. }iortk. What became of the macef
Wild. 1 kept iU
X. C* J< ^V h»t t« this jLfentleman'ji name ?
Mr* Ni>rtk. Mr, \V ild , he was mayor then.
I'B&ve you no tQ« re to say, 8jr i*
JuE^t. Withkui. Fray^ who wna at \\\a head
fall this rabbled wtio v^as the chiei of them i*
Wild. 1 beliefe if Mr. 8.icbeverell hud not
\ ibei e, and those other gentlemen, we had
J no ifiMurUaace.
ill '-'i. Pmy, Sir, let me ask you,
'l^ad I '--men their sword!> on f
HW. \^^
Just. Wuhtns, Did ihey a.bet and couute-
j ti4acie t))c tumult ?
Wiidi, Y^es, they did abet it.
Mr. ^forih. I>id any b^j^Jy jstrike or threaten ?
Wild. There are iiome tn court can tell you
I fometbuiff ot that, I know nothing of it
L* C* X I would know of you bow many
Larsons were oresent at this lime when this
^tumult wa«. Pray name as many oftbem as
you can. Vou hare named Hacbevereil, Gre-
f^ory, and Hutehin«on for tlie tir^t part: you
1 DAve named aliuuL the bu^ine^ of the muce^
S4jtiucl Uicbanlif aiid Arthur IliccanU.
Wild, And Mr. Grtt-n and Mr. Sherwio
vere there at the market- crosa.
LCJ. Who else?
Mr. t'o«t)ii, Waa Ml. John Greavea there?
M'UJ Ye«.
Mr. PoiLU* Was WiUiom Greaves there ?
WiU, Ye«.
Mr Fowis. Wttii Ralph Eennet there f_^
Wt/d. He waft there.
Mr. Fotnii* Wa^ WilH.-im WiVfOol
Wild. 1 oan
Wild. Yet.
L, C X Wm Thomaa rrig Ui«t* ?
HUd. Yet.
i.. C. X Was Richard Smitli there ?
Wiid* Yes, he was* tliere tfjo.
L.C.J, UajiJohn Hoe there P—H-W. Y«.
I.. C. J, Was \\ lUiam l^nutii there t
Wild, Ye«.
L. C. J. Wa« Joseph Turpin itiete?
Wild, He was in the hall r ip |
hat, but I did not se^ him in th* <
L, C, J. Did he abet the tuiuitii f
Wiid, Ye&, be cried out. No New Ch
No New Charter I A Greavi» may or 1 A Ur
mayor !
X. C. J. Was Nathaniel Chmn»«U thcref' t
Wild. Yes.
L. C.X WasHii- ^ '- ' -therel
WUd, I can «av '
L. C. J. Was Jt>-
WUd. I can ia>
L C. J. Then tU
to; Wilham WiUon, Humphry Bark«r« tn
Joseph A8thn.
Mr. ]^ofth Pray, Sir, favour me tvith omft
word ; 1 would ask you ttus qoeatioo : Was
there any proclautation made by your order to
have iliiise depart that had no bu^ness?
Wild. My bra* I diil order il •«[ Ukd I
think the nerjeant is in eourt ; I f«tit him i
the other room, and did order him to i
proclamatioQ i he will give you an AC4»uq1 of
that.
lietordfr, H«»w came it about they were gal
to church before you cMine fioui v^ut ♦»;5ti
house? Pray tell us what you
fore they went to church. W* , i
thi'iu Utwre (hat at your house U>ai uio
auil what dtd you say to them !*
Wild. Ma) it ple&i»e your lordshit), my lo
and gynttenu'n of the jury, the nevr ch
was not come till s*i i
they hud been at my
0*crrH'k, io Un' ■
and ihey wev'
suailed them \"
a new* charter
my frit nds, ai. .
the rest to iitay. 1 did persuade iheui Ih niiiy j
great while, and went out fn»ii them, mff run
to them ai^'ain. At taf^ news wa» bv
that tlie new charter was within tlj<
the town (lor we had a (»))y at the tup of
bon&ea) and that hall a sc<»re were come \
it $ so I went to atdemiim \LtV^
DOW the new chftiter waji i
bounds of the town. Wheti tut ,
say so, they cried, Away * Awsy ! I
church ; aud thc-y *«id Mr. Sacheitj
the street, and so they tbliowecl bim to chu
Away they wtol frotn my boune . but a hH
tkmtt^ ot them i
to them to persu
STATE TRIALS, 36 Charles II. \6M.^and others, Jhr a Riot. [46
Juft. XVithens. Is it usual that the multitude
should make the mayor go to church betbre he
has a mind to it ?
Mr. Lovcli. Did you make any summons
at all for that inccMiug?
Wild, I sent no summons.
Mr. PvUexfen. It is all laid in your infor-
matkm, that the assembly was summoned bv
.vou.
Wild, All that I ever sent for, as I know,
was Mr. Scrj. Bij^rhmd. There were two or three
^entliMiicn at my li»usv thiit uskrd nie to send
for him, ho havinsjf b«'on Itix^Mirdcr bv the old
charter. Said 1, if Mr. Serjraiil Hi^Iand has a
mind to ctmie, he iiia\- come if he will ; so I
sciit tor him ; b«i ihrre were none of those
l^cntlemen that 1 named hcfurr, that I sent for.
Mr. Poilerfhi. I think you sav that you went
from tlie council- house, and allerwards went
into the haJ!, and there you were snom, and
then you did proceed to read the charter ; pray,
were any of the defendants, or which of them,
in the hall ?
IViiiL Sir, I told you that Mr. Gregory and
Mr. Hutchinson came into the hall, and Mr.
rharnell, and Mr. Tuqiin were there in par-
ticular.
i\ I r. Pi tffcrjrn . \^ h.at did Mr. G regory and
Mr. Ifutchinson do there?
Wiiii. They eauie, Sir, to desire me to go
into tile council- house, lor the o^entlemen hud
chosen Greaves ma^ ur, and desired me to hear
him sworn.
Mr. Polfrxjen. Was Mr. Sachcverell, or any
there, hut those that vou say came to tell you
what they had done In the council-house P
Mr. Hult. Who staid Ix^hind in the council-
house.'
II i/d. All In It those that came out w Iih me
Mr. Jonts. Prav, to satisfy them, tell them
how far the couiiril- house atid the hall stand at
a distance : how far asunder iirr they?
IVUd. But just over the diM>r threshold from
one atiuther.
Mr. Jrnrs. \re tlic\- contitruous to one ano-
ther i»— »'////, Yes, Sir.
■VIr. Jt'nis. Can they come into the conncil-
huHse, but liiey must ^u throu<^h the h:il1?
Wild. No, HO, the} n)ust come from the
hall first, unM so j^o into the e^imcil-hou^e.
Mr. I*ulit rf'nt. \n\i were siH^akiiipf of some
of the eompanv that had swonfs by lli( ir sides.
Wi/d. Yt*s, the irciitK'nieu had.
Mr. Sltinliopt:. Did you r»bsfT\r Mr. Saclie-
•T went, 1 said to them, Gentlemen,
11 give but a little time, the charter
ere in a quarter of an hour or less,
pray be pleaaetl to stay and see it be-
»»», for 1 tell you I must act by the
«T, and not by the (dd.
'iikenM. When you ordered them to
claBiation of silence, how did they
They were as tumultuous as ever
MoKay. If you have any thing" more,
rfull knowledjje of it.
My lord, I did jieri'eiie a s^reat deal
there wiis ; I knew not how it would
I Jay t ^''* w-rrc afraid ot'lifing knock-
bead, so I dispatched a messtMii^er on
to inv loni duke of Newcastle, that
ilease to eonic to us and assist us, for
we were in a preat deal of dausjer.
mme to us on Saturday uig^ht, and
( till we i»erc pretty quiet ai^ain.
T. W bat did they do on Saturday,
lt«as the tlay of proclaiming the
iWe other cross, the malt-ci-o.ss, it Le-
the uiarki'i-day, when the country
Be JO, that so they ma}' be satisfietl
l^ofthc t(»wn.
i». Did tliry proclaim their mayor
MR/rf. Y«'-s.
Ur* Ptay speak out, and tell how
Pray, 3Ir. Mayor, by the
r of your corpora'tum, is the
I any other day than when he
Tfl^ the no3it day at\er, tf) satisfy
fejrvbo are mayor and slicrifl's of tlie
L Were both the mayors proclaimed
• Yes, after we had |)roclaime<i our
pNMDtl} thci'<:r raine a <^n-at many
•,aiMi prorluiiued their msiyor.
/. Name theiM who they were ?
My lord, 1 VI as not so near tht-iu, as
Mieularly who they w«:-r«* ; hut thry
pibeir bats, and luiide a i^^reat noise :
» CBoni^b in court can tell i;t ho tla-^
nd7. Pray, Mr. Mayor, will you tell
baM authority and ilirection this a.s-
wMiiea:' '
litmfmm. Sir, he asked you a plain
i^pmy aiisivt-r it; by whose direction
&BnUvcallett?
FSr, I do not know ; they had no
|fa«Die.
Ml. la it nut usual to mei't of c(Mirse,
kMnaos, ou the day of election .'*
vcr tint I knew of without sum-
r new charter not ht-inj^ couu, I
iay summons.
Is it uot usual for the burf^csses
tapSB the mayor to chund) 1*
, wie that ftre summoned i hut
vi.Tt'i] ;ind Mr. Grejfory had their svwjnls by
their ."sides .^ "
Wild. Yes, to the best of my knn\vh?dp^i'
they had.
^it. Stanhope, To the JM.'St of you' know-
ledge ; do you swrar they had »u- iio !'
litcftrdti. "^Voi.Id you have him .<;Mcar be-
yond his knov.kd^e!'
Mr. Stnn/iupr. lliid Mr. Plumptre a sword
\^hr.u hi- cdiut' fn>in chiirrli to tht hall ?
Wild. I sec liiN tiuM* ninoii^- the rest, but
they \* err so many, I cannot sjieak particularly
who had their swonls on, and who not ; 1 b<;-
lievc they mit^ht have all their swords ou.
power to d«D«iid it. If hm bed ftoy ijy^hil
lfi«re WEM m ^roptr plaoe for htm to a|i|4^ t
it wert dcttinM 6«wi iiiai*
Mn StanJtopf. Mj lord, witli wb
uodeteUnd no such f^«ai saucmeiB 19 it, 1
make a demand of an entugn of olEce.
L* C J, But I say it was iiaucy, and I (
yoii you bad be^u saucy if you bad done i
far every man that meddles out of his |^
is saucy : you may carry that away wtUi 1
amonf^ y^iir other obeerratioDS, Bw
prickeared fellow, 1 \i ill warrant yottf ]
to dispose of the government. Let Mr, i
iuson and Mr. Greg^uy be as j
wiU, tbey had better have studied to bavi
quiet, and meddltd with their own
And I win tell Mr. Gregory ' ad co:?
^ accedos antoqutuu vocena^' is a rule»
ought to be observed : but we are wouderfuJ
ai'raid^ forsooth, to tell our minds : no« 1 1
you it waa saucy, and if you bad gooe
tliat errand, you had been vaiicy.
Mr. Siauhope^ It may be 1 abouM Ha
known better Uian to bate gone on such i
errand.
X, C. /. So you would have done well to i
and yuu should know better tbao to aak 1
insignilicaut impcilineut questions as you do.
It WHS rety saucy, I tell you ; and if the beat
man of your party bad gone, it had been aaucy.
You sliall l.Liow our minds, if you nut us upoct
it^ because )'0u arc so bl^ of it. W« i
473 STATB TRIALS, 36 CajitLKS IT* 1 6$4.'-'Tnol ^ ffm. SbtlmmrM,
L> C. J. Pray, Sir, what do yoa mcati by
ibat question ? Plainptre i^ nnt Here bsibre ua,
Mr. Stanhope. Ue is in the infonnation.
X.C.J. Youbadaagoodask ifMr. IVar-
trea was there.
Mr. Stunhope. My lord, he said be was
there, and bis name is in the inform atiao.
L. C. J. Yoo had best ask ns, whether every
mart in the town had bis sword mi. Let us
[ keep tn the thing befofi: u^ and not aik such
h impertinent idle qitemioosof people we bare
noihtn{2r to do with.
Mr, Stanhope, Is 3Ir. Sacbererell a bnrgeas
of ill e town?
Wild. Yes, he was a burffeas by the old
charter ; but though he was a ourgeas, be was
not one of the fle<Jtors. He had nothing to do
tbere» nor Mr. Gregory, nor Mr, Plumptre.
Mr, t'uticr. Who are the electors?
WtU. The electors are the mayor, alder-
tni'o, criioner«, and the rest of the '^uncil, by
' both charters, and so he had nothing to do
there*
JuKt. W'lfAtfna. He ^fas not concerned in the
corporation, but ouly a gentleman burgess.
X. C. J. How long Iiave you been of the
counett of that towni*
Wild. 1 httie been there o great wliifc, a
» dozen or 16 voare^'
X. C,J. f lave you bf*en prcaent at the elec-
tion ot mr e that tmiK ^
Wild, i r
X. C J \V ' '"^ persons that used to
conii^ 10 dect m re thut lime?
Uiid. The uim riK^vor, the alcUrmcn, the
council, the coronerv,' and (t^e aberifla, and
those thai liav^ been shcriflk
X. C. J. I>td the other bnrgessca nae to
CiimeT—Wiid, No.
X. C. J. D*d Mr, Sapbcverell and Mr. Gre-
gory iiie to ap[ieajr lor the election of mayors
Eefure that tiine?
Wildn Mo, my lord, they had no bu^eas '
there.
Rewrder. At this time they had, it seems.
Wild, They made il)em<;erfes bunne^
Mr. North. Pray swear John Malio. [Wh'ch
wusdone.]
JSU. i^tuHfiope. Mr. Wild, praybepleaaedto
tell the court how Mr. Htttchinson cxpresaed
^ Ills saucioe^s lor you are pleased to say, he
and Mr, Gregory ^amt' Kaucily to you f
Wild. So he did, fciir, he came saucily to
t demand the mace^ which he had notfiiog to do
[ wjibal.
L.CJ. IsMnHutcbinaonhere?
HIt, Stanhojte. Yes, be i<: did he demand
It hiniself, |n nyi or did he tell yon tlie other
, &];ryor demanded it.
Wild. He Lumc to demand it.
Mr. Sinnhvpc, Did be tell you from whom
he cam*' f
Wild. He said be came from Mr. Qreavea.
Mr. Stanhnpe: Then he did not demand it
for hunaeUi'
X C. J. And if Mr. GrcaTes had demanded
iti be bad talked naucily ; lor it waa not in bis
to 3 fine pass, that every little prickMiad&lloi^
must crtnie to demand maoes ihit are the
badi>^es of autborityp and they miiat net b« lutd,
forsooth, that they are saucy.
Mr. North. Fray, Mr. Malin, will TOU gir*
an account nhat ^ou know of this matter f
Xn C* X We are trying people^s rights by
club-ldw ; but by grace of God it abaJltiot be
ao, so long as I sit here.
Ma/in. I was tlieu KlveriflTat that tioie.
X. CX What time?
Matin. Tliti time of the riot, on Iktichsf?!
day, 1 then being aherlif went out to
the charter that was «»ming at that tin^,
I went a <$ far as Leicester, ami came back
it about elef en o*c)ock, on neju- as 1 can
I came with the charter on the one aide
that brought it» and another that is ,_. ,_^
with ua thatwc left tiebind, on the other sid(
1 met these gttfitlemen that stand in thiai
1 will name them if you please.
X. C.X Dow,
M utw Mr* Serb evetel I , Mr. Gregnnr<
Hutehinson, Mr. John Greaves, Mr, ^"^
Greater, Hamuel llichiinls, Robert
Fraacis baluion. Arthur liiccardfl» Rail
net, John Hhernin, Samuel Smithj
Trig, WiUiom 8mith, Joseph AsHln, and Ni
thaniel Charnell ; I met thefie men.
X. C. J Where did you meet these ti
Matin. At the ^te called Uye-8ni4th
They were a-eoming witli a great many m*
and'l suppose they went before; for I wi
forward to Mr. Mayor by the new cbivrter m
ly the old charter too, and I piet hiiu, and ~
TAIS 9ItMLS,'36€HARi/£8 II. 1664.— tfmf others J^r a Riei.. (50
larter to bun, and staid* there, and
e gentlemen that were concernetl
by the king's uew charter, and
m theooe to the Guildhall, and
fe ireDt into the council- bousp,
i were in the council- house, Mr.
r Mr. Bdse, as town-clerk. Tiiey
len to churdi ; I was one that
■8 eoncemed in the new charter,
nan mud town -clerk. 1 went for
o see the charter read, and that
e them sit in order, in that man-
BS thej had used to do before in
Ttmdy to go to the election in the
e wa V it used to be in, by the old
hmre been concerned in elections
y sijc or seven years ; but f never
neineik in all that time appear
* nsed to be noiu; but the uiayor,
nnd the clothing. Tliere were
gentleinen, as ever I saw, and I
rearm standing, six I am sure, I
, but only one gentleman once,
gentleman that alderman Edge
lee the formality, a gentleman
rks* Office, as 1 remember. This
■oquainted Mr. Alderman Edgt
d, but lie did not come to us';
after we had sat there in the
, ■««>« gentlemen came with a
t know not how numv hundred
pi when they saw the mayor
mA the new charter, these gcu-
!.|D Stir ; and when they came in,
Hiee such a bustle of those that
Ijio there: and the first thing
' was spoke by Mr. SacheTerell,
dMT, for 1 saw hitn there ; Wc
dect a mayor by the old charter.
^0r then to them, I know no biisi-
i here gcnth'uien, any at' 3'ou ;
i he made proclaniatioii, and told
id nothing to do there, au'l he
idung to ilo witii them. So then
t for a poll, and did proceed on
'party went, and one or two of
K concerned in the new cliartcr,
any of their party. There was
Mr. Hardy, that gave a vote for
d this was all. Hut they would
; all ; but Mr; Mayor told them
winess there, and ite had notliing
b: and with that he took up the
■t with some of the aldermen into
^nd when they kuw him goint^
1^ to cry out, and he had iiuioh-
itbey were so busy to kt-oji him
4 as they laid their liai.ils uiM>n
lap It, tlie serjt-aiit got uway w ith
M with tlie mayor. 7'luu s.-iys
■y. Stop the hooki'. ^tf'p i\w
Jj^M several tlme^. \Vith that
la^af the C'jroriiik. Mv. Wool-
||jiBaneoftht-b(>oks} and whethir
p:;Pnlliof or tugging, I cannot
of the books were
Mr. Powis. Then what was done as to the
mace that belonged to you as sheriff?
Malin. I was crouded out, and I could not
lay hands on m v mace ; but the mace lay upon
the board, and was left there among them't
and I was cronded out^ and followed Mr.
Mayor, for there was no quietness there, un-
less you would stay to be knocked on the head.
Mr. Poaris, What became of the mace ?
Malin. I sent the serjcant for it, and ha
told roe he demanded it, and they would not
let him have it.
L. C. J. But speak your own knowledge,
not what anotlicr told you.
Malin, I came in at^nvards there ; when
he told me he had licen there, and laid his hand
upon it, and they rescued it from him, and he
could not hare it, I went in myself, and de-
manded the mace of t!ie gentlemen, lliere
was 31r. Salmon, Mr. Ilichanis, Mr. Artliur
UiccaiHl:j ; there were four of them tliat told
me they had as much right to the mace as 1
had. Gentlemen, says I, that is stnuige, I am
by your charter shcnd* still, there is no body
elected in my room, and our usual way is to
deliver our maces, you know, in another plaoei
and not to rescue them away, and detam them
by violence. Likewise the mace was a thing
that I paid for ; I was so mmdi money out of
l>ocket upon it ; for that is our usual irny, it
being bought lately, every sheriff lays down
such a sum, and loses 10s. by it at the year's
end. I told tliem then, too, t was sheriff by
the king's new grant, and therefore tlie mace
belong^ to me.
]\Ir. Powis. 'SVhst is that Arthur Hiccarda ?
Malin, An attorney at law.
Mr. Powis^ He is none of the aldcnnen, is
he? — Malin. No, no.
IVIr. PoRis. W hat is Salmon ?
Malin. Uc is a feltmongcr, or a glover ;
he makes gloves.
31 r. Puuis: What had he to do there? was
he one of the aldermen P
Malin . Ue was one of the old council. And
there was one Bennet too.
3Ir. Pouts. What is Hiihards?
Maim. He is a boukbiiidir. He was on?
of the old Council. Ho ^us coroner.
]\Ir. PozL'is. What did you say of Bennet?
Malin. lialph Bennet was one that told mt
he had :is much right to the inaec as 1.
Recorder. ^Vcll, go on to what was done
the next day, the market-da} , H;iturd.iy.
Malin. I cannot say much to that ; for I
was with Mr. Mayor making proclaniatidn ut
tlioio thut ^vore by the new charier, bin 1 iliJ
not see thcin juoclaim any thing.
Htiurdi r. Was you by when pniclan^ation
wu.s made?
Malin. I Was by wIk'u wc were all pro-
t'laiuu'd, but not wlicn thry A\ero ; l>ut then
L. C. J. Hnither. let'bim go on U* tell us
what happeneil on the Friday.
Malin. Then Mr. Aldfrnian Wild, who was
the mayor, when lie came out themv. went
into the^Guildhull, wher« then were abund^M
SI] STATE TRIALS, 36 Charlks II. \6M.^Ttial of Wm. SacUterett,
of hurgettes j^atbered togvCher ; aild Beetngf
them 80 unauiet, he was tatmfyinff thMi at iar
"tt be coulii ; says he, if yon Will hear, you
sfiall have the charter reacf, either in- English,
erasitisinliitin, anif then you ^ilt see that
none of your privil^es are dimhiished from
you, but increasefl rather : and he was about
to read it, and shewed the broad seal to them ;
when in comes !flr. Hutchinson and Mr. Gre-
Ijtiry^ td desire, or request, or command, or
'^nmething-, Mr. Ma^'or to come into tlic coun-
cil-hnn^e ; I bey told him they had chosen
Greaves mayor, and he ^vns to come to hear
him sworn. With that the bnrg^esses that had
been quieted before, and was so civil as to
hearken, and were about to hear the new
question, I can tell yon the resolution and opi<
nion of all the judges about that case. Tbfrt
is Taw for recovering everv man's ri^ht, but
club-law is not the way to determine ni^it.
Recorder. Swear Mr. Rippon. [Which wa
done.]
L, C. J. You^lcnow what liccame of mnM
of those apprentices, Mr. Holt.
Mr. Jennings, Mr. Kippon, pray will yoi
tell the court whaf you know of tiiis riot M
Nottingham ? '
Rippon. Upon Michachnas-day, lG82,abod
eleven o*clock, the charter came to town; 1
was then with Mr. Mayor, Mr. Wild, M Wi
went straight axvay to the hall furtbwithi nli
desired that he would be sworn byMt
we
charter read, flung* up tlieir hats, and crie«l j Beverly that was steward. No, says M^-j
out. No new Charter ! A Greaves mayor! A have no mind to it, till Mr. £dge, that wi
(■reaves mayor ! Then alderman Parker durst
nut stay any Ioniser ; says he, f will not stay
to be Ibiocked oh the head. Then every one
\vzM fVighted, and tli« mayor took np the mace
and ran away.
Recorder. How many might there be In
the hall?
Malin. I believe three or foor hundred.
■R^torder. Did they restore the mace to
you?
- MMln* Tliey came tbe next day, and would
have tendered' me money for the mace.
Recorder. What did you say to them T
" Maiin, t tokf them, i knew no right they
hatF to tbe mace, and I would take no money
for it. It was one Ray ncr that came and ten-
dcn'<l mc money tor it.
Just. Holluuay. Pray, 8ir, let mc ask yon,
in-the electing Ot ^our sheriffs, do the lihcrifls
return the mace ; or can any body require the
mace betbre the gaol is turned over ?
Mafin, Yes, my lord, the gaol may not be
turned mer in a month ; but the ensigns of au-
thority are dcltvere<l to tlusm presently after
thov are swofh.
Mr. Jluif-. Pray, Mr. Malin, do you kn«)w
which of these defendants were there at that
"thne when' there was tossing and throwing up
of their caps, as you say ?
Mat in. A gr<«at many of them w<»rp in the
cciuncil house; they had taken that room to
themselves, -and thrust us out, and
town*clerk, came to do it according %kt li
office ; so' he desired mc and alderman PlnM
to go to the church to desire him to conne i
do his office. We did so, and spake to I
Edge : ^»avs he, if they will please to Cf
hither, well and gi^ucl, T shall nut concern m^
self any furtlicr. Then , said we, will y mi gm
usthe books that concern us; they arelMi
8ai«l he, what would you have more? Nif
said I, I am satisfied ; si> we came away, m
soon as we came back to the hall, we told hkl
the message that Mr. Eilge had sent ; M Ift
Wymondsell tilat was deputy recorder, ^IM
rcailing the charter. SSays Mr. Mayor, if y/m
please, i will be sworn, and proceed ttieleetMHi
Presently comes a great compsiiy, Mr. *"
vercll, Mr. Hutchinson, and a great i
you please to give me leave to lo<ik apdn ■;
|Niper I can tcU you ; there was Wm. SMli
verell, esq. George Gregory, esq. CkflA
Hutchinson, esq. John Greaves, gent. Wfliiti
Greaves, gent. Samuel Richards, gent. RoM
Green, gent. Fraticis Salmon, gent. Ai^
Uiccard*), gent. Ralph Rennet, gent. Jah
Shervin, gent. Wm. Wilson ; I do not kiMJ
I must beg your ]mrdou, I cannot speak pn
(icniarly to him ; Samuel SSmitli, Thus. Tn|M
Richard' 8mhh, John Hoe, William 9am
Joseph Turpin, gent. Nath. Chaniell : I cill
not say anything of JIuinphry Barker, bl
. there was Joseph Astlin, tayUir. lliese ^
demon cnme ni with swords by their wdtk
raidfltfv
Ir.RM
"sia^
\ saiflOTl
fn? 8MI
nbv«i
non« of j
thrni ranie into the hall hiU Mr. Hiitchinsnn i Kcvcral cf them really to the terriiyin^ of tlM|
and 5Tr. Gregory ; and the burgesses wen* i that w«»rr ihrrr ; I was very much alraid "^
very quiet till'thoy came and domaiulcil .^Ir. srlf. So .Mr. Mayor looked npon Mr. T
Wild to cnme and hear their ma3-or sworn. ' ' .- *.. . *? •__ —mi
Mr. //cl/^ How long did Mr. Gregory and
Mr. Hutchinson stay in the hall .^
?%To.Hn'. I do notlcnow ; they staid so lon.-
as to demand the mayor to come.
Mr. lloH» Did they carry thcuisrlves pmri»-
^l»l V and civilly wliile they were there ? j
i.. C. J. W hat had they to do there ? I ask j
jfitr-tSnt, Mr. Holt; and ii» case you have a
\uvu\ iv) have some qtirstior.s asked and an-
swiTCil, I will |Hit you in mind of a case of a
part'f'l of a|ipreiitices in l^cmdon, that were rod
toiji'ther about nulling down some houses in I
"M^JHields r cinvin case you n<!:k mc another
and, says he, Mr. Alderman K<lge, will
tnki tin* cliartor, and n»ad it, for the sati
fi'»n i>f yourself and thefse gentlemen? I
Xr. Kiige, I do not know what 1 am by
rlmrtrr, wheihcr I am any thing or Ml;
know what I am by the old charter. Sll^
>Ir. Sachever«=n, that is not our hnsinem^
1 prr*i nr, wo ronio to tKnrt a mayor by the
ch;.r:rr; and verj* hot they were, and Cta
om Toelection, To eU»ctio!i, Sahnon audit*
frli<n\3 ; so tliat Mr. Mayor could not be hr
[ and to election they went; and I asked
Wild, who was then mayor, who he was
S ly ; he, I do not uu'lcrstand by what mi
STATE TRIALS, 36 CHAftLBS II. xS^.-^and oihenjcr a Riot.
[S4
■wttftbeic gentlemen come here: tbejr
[dudeil by die old charter, and J think it
hMter Hmr you to be elsewhere : tlicy then
who be was for ? Says he, 1 ani for none :
bcT asked aldemuoi Parker, and he said
■e ; and when we tee they would have do-
tee but that, we witlidrew into tho hall,
dl upon swearins tbe.dfiiyor. >Ve swore
■d just fiottbed Uie oath, and the people
rcry silent, aod be drew out the cliarter,
Mwed the broad-seal, and sold, Here is
7f 's new charter, 1 aia very confident
jour immunities and your |irivUcges
i« AetirivcMl of: and there bein^ some
Mir, said I, pray be quiet and silent,
jan bcaar it read ; at last they were very
sad qnieC, and we thought it would have
» very lair business ; when in comes Mr.
I and Mr. Gregory, to tell Air.
I tliey desired Ids company, as the
IS, to be at the swearinp^ o1^ Mr.
Mg nay ur, for so the old mayor oiij^lit to
dse be is no mayor, unless ho be sworn
ipneedio^ mayor. Says he, I have no-
li say to iiim, 1 know no mayor tiiat he
Kara about our own business, obeviiij|>f
m^% authority and his charter, 'fhis
•jnoner said, but they had animated the
Mieaf people that were there, that they
|l|lbeir hats in a very irreverent uusturc,
\.^mm saw tbe like, shouting^ and cryiaj;^
Jb MS Charter! A Greaves mayor! I
in Is secure the charter ; and a larreu-
Mtfent that I had on, was all rubbeil to
Kma the charter, and I had muoh*ailo
L Mv brother Parker he was so afraid,
(Mr liie bench ; Prithee, said I, stay;
PfeUf tliey dare not do these thinirs;
ti^ I am afraid of my life, and fare you
» Mr. Mayor biid I'sat a- while, tor we
ristwbicU' way to take, but at ia«a we got
ribvBs^ tlictu : but if i touched ground,
41 Bu^ht ii«:%-er seezny wile again.
CL y. Now n licther that be a curse that
byert upon thyself or no, I cannot tell.
ff9m. Had you been tliere, Sir, } ou would
btca afraid "too.
Mivdtr. Pray speak that ugai'i.
fipsa. I say again, when 1 went away
I with 31 r. Mayor, I did not touch tlie
li fcr c-ijifht or*nine yards togethtT *, fur
vaa'd not make way, and tliey pulleil
f te ipown, several of tlM-m ; and if any
sAs bad been there, he would have been
bfiavii. How long ilid they continue the
biM. So, Sir, we got straight away to
HiiSt bouse, thai was then mayor, and
HlRmr him accordiogly as ilie usual way
t^ the charter iui|iowGred us, as 31 r.
isstt tokl ua, that we niiglit tlect any
4i we fell to tlie businei^ of the duy,
■lline we had three partfei <loue, tlicy
% aad prodainied their mii^or: but
i^espt and send Mr. Hutchinson, nnd
|Hjrv MtfiMici lUcbwds, and .Vtthur
Riccards, to demand the great mace for Mr.
Greaves, as be was mayor : Said Mr. ^Vikl,
whatHhalll do? Wliy,j«ud I, go douuaitf^
give th^m their auawer ; tell them they are
saucy fellows to do any such thing : Says bo,
they are gentlemen ; why then, said 1. tcJi
thcin they might know lietter tlian to uo so.
So he went down and told them ; said he, I
received it by good authority, and will never
part with it, but to as good an authority as. I
received it. 8o we staid, and went on and did tlie
business of the day ; and afterwards, between
Hve and six o'clock, we went to tbe cross,
anil ihere proclaimeil the mayor by the nen^
charter, according to the custpin^ 9iul xetuiiied
e\ery one to our own houses. The uejLt day
we were atraid of making a disturbance ; hut
about nine o'clock we went and proclaipied the
mayor, and about eleven there cfiine all th'eso
gentlemen, and there they proclaiiiicd'.SIr.
Greaves mayor, which was upon the Ha^unfay ,
accompanied by uU these persons, as bear as I
can say.
Mr.'Porif. Was Mr. Sacheverell there then ?
lUppon, Yes-
Mr. PtfWM. Were all the rest there ?
liifipou. To tlie bestof my knowledge they
were.
3rr. UolL Can von say Mr. SadieveMO was
ihcreY^^.liippnn. Vea,l[ewa^.
Mr.lIoU, Who was there?
liippon. Tliere wa» tlw two Greaves^ and
Green, and Uichard;:, ami Bennet..
31 r. Uoli, l>id yoM see tbeui there ?
Rippou. Yes, fdid,
Recorder. HioiMHi, pray will you recollect
yourself, and ten the court who was there on
the Saturday i*
Ripfou, Mr. Sacheverell, Wm. Greaves,
John Greavesyi^mui*] Hichards, Salmon, Ar*
I thur Uiccards, Halph Bcnnet, John Shu vvia^
. W iliiam Wilson.
Rtcordtr. Was Wilson there?
Rippoiu Yes, 1 bue hint myself.
Recorder, W hut, it juicing J
RJppon. Yes, he u;ib rejoicing as the rest
did, to the terrifying of us ull.
Recorder, \V as he in the croud ?
Rippon, Yes.
Mr. A^orth. Will you ask bim any thing,
gentlemen ?
Riupou. 1 know nothing, if it please your
lonlsnip.
Mr. Uoli. Pray, Sir, this ^ can \ou klv that
Mr. Sacheverell liad his sword on, on Michael-
nras-day ?
Rippun. Yes, certainly he had one on.
."^Ir. HoU. Can you take it upon your oath
he .had Y
RipjMn. Nay, there w ill he several th;it w ili
sweai' it, I will warrant you ; and 1 am sure
you would have been airaid if you had been
there.
L. C. J, Were Mr. HuU-.hinson, or Mr. Gi-e^
gory, burgesses, eitht-r by the new or old
cliartcr ? — Rippon. No, they were not.
L. C. J. nere Mr. Sacheverell, Oiid any of
55 j STATE TRIALS, 36 Charles II. l6U.~Trwl if Wm. SadUverell. [5ft
these gentlemen ever present at any other dec- j
tion? •
Rippon, It is pOHuble, after tlio election is
over, they might invite ^rentlemen to feast at
their houses, but never to' have any concern in
the electi<in in the least.
L. C. J, How many elections have you bqen
present at ?
Rippon. I came into the council at the
kins;f*s coming-in, and I have been alderman
live or si.x years.
Mr. rowis. He came in by the rcgnlation.
Mr. FolUjcJen, Pray, whereabouts wai it
the mayor ivas sworn ?
Rippon, At his own house.
Mr. PolUxfeiu Whereabouts were the she-
rifls sworn ? — Rippon. What theriflfs ?
Mr. Pollexfcn, Malin, the witness tliat was
before.
L.C.J. He was the old sheriff.
Mr. Holi. And where were the new sheriffs
sworn ? — Rippon, At the mayor's house.
Air. VoUexfen, Was Mr, Malin sheriff by
the new charter?
Mr. lioU, Was it before tlie election of Mr.
Greaves mayor, or after ? — Rippon. Afler.
Mr. Pollexfcn, Was Mr. Malin by the old
charter, or by the new, sheriff?
Rippon. BytheoM.
Mr. PolUitfen. And not by the new ?
Rippon. No.
Mr. Pollex/en, He says he was, and you
aay he was not.
Rippon, Vfir that day he was so, but then
he went out.
Mr. Polliwfcn. Did the mayor return to tiie
hall afler he was sworn, or after you left the
hall in the fri^^ht ?
Rippon. We went straight to Air. Wild*s
before h^ was sworn, and then wo sworu him
there.
Air. Pollexthi. But the oucstion asked you
is, Did Mr. Wild return bac-K to tlie hall aVter
he had taken his oath, and was sworn in his
house?
Ripwn, No,- he staid in his house ; it is not
usual for the mayor to fo buck to the hall.
Mr. Pol lex fen. Did he go to the cross after-
wards?— Rippon. Yes.
X. C. J. It was on Alichael mas-day that he
was swon) ; and ft was by their proelaination
made at tlie cross, tliat he was sworn mayor
that day ?^Rippon. Yes, my lord.
L. C. J. And was it the day atler that they
proclaimed (i reaves to be mayor ?
Rippon. Yi>s, my lord ; it is true, to the
terror of us all : I will assure yuu it i^as a
wonder there was no more misrhrof done.
Mr. Pollexfcn. These g[enticmcn wei-e i:otin
town that day*
L. C. J. Take you your liberty to make
your defence jit\erwiards ; but you must distin-
(fuisb, there are two days, and some jMiople
were one day, and some the other } some peo-
ple were at the- time of the election, that were
not at the market-plaoe ; and sonic were at the
auurket-filaoe, that wore not at the Section.
3u9t. Hollnwvy. That day Greaves was thai
chosen mayor in that tumultoous manner, dU
any of these persons take npon them to sweir
Greaves, when they bad tbus chosen hira ?
Rippon. We went out into the hall, and i^
that time ihey did swear him.
Recorder, Was Mr. Greaves sworn thai day
by the pretended election, Alaliii ?
Malin. Yes, by the coroner.
L. C. J. But 1 perceive by their old chartei',
there was no mayor to he sworn, but byte
old mayor that went out.
Mr. Stanhope. Did not the coroner use l|
swear the mayor by the old charter f
Rippon. Yes, but in the presence of the
new mayor ; he was by always.
L. C. J. What do you mean by sweariM
of him by the coroner r Hsrk you, u|M>n yoil
oath, was there ei er any mayor of Nottingmu^
in your time, sworn but in the presence of the
old mayor?— R{;);)on. No, never, roy lord.
L. C.'J. Do you call that swearing, becatse
he reads the oath to him ?
Air. Holt. The coroner has authority « te
do, as we shall shew you hy-and-liy.
Mr. Poaris. Then swear Ileynolds. [Whidi
was done.]
Reynom, I brought down the charter, my
lord.
Recorder. 1 would ask Rippon a qucstXHi
before he goes ont : Let us know of you when
the old mayor was sworn by virtue ot' the new
charier?
Rippon. I cannot tell that ; the mfw mayor
was sworn by the new charter, at the old
mayor's house.
Recjrder. The other two witnesses did
swear, that the olil mayor was sworn in the
hail ; bnt he says he was by, when the new
mayor was sworn in the old mayor's house.
L. C. J. it is understood upon the receipt
of the charter, Wild, \tlio was the present
mayor, was sworn in the hall ; hut aflerwards»
by reason of the hurly •'burly, and noise, they
went away, and chose the new mayor at Wild*
house ; tnat is tlie fact that is sworn.
Recorder. It is right, my lord.
Pmiit. I'ray, lleynolds,' will you tell my
lonl the whole story *, for you it seems brougrfai
the charter down.
Remolds. Aly lord, I brought the cbazler
fnmi London ; and when \ brought the charter,
I was sent by Air. Alayor, to acquaint Mr.
Edge, that the chart er*^ was come, and this
mayor desired him to come and hear it rnd ;
Air. Kdj.'-e asked if the mayor would not come
to cluireh ; 1 told him he was at the tow»-
hall. When wo came to the council-house,
proceeding to have the charter read, and all
those things, Air. Sacheverell, and a gresl
many others, came to the cmmcil-house ; and
there the mayor offered to Air. Bigland the
new rhaiier, that if he would, he mi jht read
it. Air. Suchevercll, af>er sonic little discourse,
told liiui that was not their business, they were
cpme to elei:t a mayor by tbc old cliarter:
8ays Air, Mayor, 1 do M know any authority
STATE TRIALS^ SS CH4tLE$ TL l6%JL^snd othert.f^r a Rwt [^8
of 4 pafi>ol«inatioi
nirvor * 8iV9 lie to me.
OKxi aM Mr. ^iid 3ir.
BAaitjr. came bit* md there
iMlhvlkarifcflBes that were mct^ ibat tUe king
hbA gntnlrd th^^m :i niTW rliartev, atiri there
vaio«ne of 'unbheJ; and
If Ib^v «ri>ui«. ireadiaEng*
M or iQ L^Uii. I'h^n tl^cv went to nwear
Mr, Aldennan Wild, acwinling to the new
MHO. Presgpftly Mr, Htitchinton and Bilr,
Wgiry c^i>e itt, qh4 t<v|d bim lUey bad eled^
Ml Wr. CifOBfes mavnr, and if he would, he
M»e &n4 hear him swurn : be said, he
I aulhtint^' they hnd tor it, and denied
mnt •OcH etriMiun. Thoti there wei^ siioh
Ini 1L new
iaft Iti MC« vTan jiroclumied divers
VPDK no bearing him speak :
U<^ mmirued tbu eotuu ^^^ ^e
: to ihe nrai'tr'-i !K»ti»e. and theie they
•P tbe tJ' I'lady^ «inri tie
ni tea oji ' eiif
Charier! ?l«*n'^'v^ or!
A6raiiP€*ai*yi>i tm: .,. *. .>ii,»...u» . .^.^n-,
ia^f ♦ a C*^6<^ many of tliL'm wenv ii» firt^^rkiim
bim «t tb« cniss agiiiu, atnong the i< -^t Mr
Was < irej^ory there toa ?
Yf*, I think* so.
Did voo make (jroelamation at
plmU, ior uJl to doport that had no
Ste^mmtik. At the council- house I did, be*
^m^emmti m the common- hall.
00 yon remember »» ho wa» there?
Blr. Saclieverell and Girjfory^
fc; J(M«i. Did thi-y continue there ?
H' Ihd Mr. Sache^ereli make
1 I . I re was a g^wat tioU« in the hall,
llnl vfMi Uk'ikt .wy things oun-
K.'
ereU ary out,
^blMoks! Ntay the hook«
!
mt^Ur. IV bat booka did he nkean f
l^nofd^. Tlivy Mtre «ome
of the books
" ', " .; ^
^Nr^'
1 U( ar id'.
l^liu i^. \^
Hit ibeir
^vio iltnnari
^k/(/r. Vrv
ni-^ory^aml
^KvtchH'^-"'
^ -"•'*! to df-
i tkir tu
\ ho sent
as ilw)
cmoif liad ftcui ih
yor that
Mr. Uoti, Yott apadt
where wua it ?
Rtynofdf. Ye«« I did make pfoctamal ion i
ttie eotlneU-hutise, iw bid all depart that liod i
business.
Ju&t. IfltMfiu, How fsatne yon 10 make till
(Kroclatnetion ? '
Ihynotds. The msy^r brrf me, aa^ I did i
M^,Holi* Wast swMntbeit?
HciftwltU* It was i , thing wtm^
Mr. Holt. Was it beture iic was sworn up
tlie new obarter, upon your oath ?
Reyrifdda, it waa in the council- ha use.
Hccot'ticr, It was when yon wert* t'ryin^ tig
your f' ' mayor.
ft I \ ftenirarda, did y oti obaerre i
beuiiiii. .l.v lu.n^le at afny titue af^warthP
Htconter* Swt^r alderman Parker. [Wbidil
was done.]
Mr. Jones. Are yOii sirorU| Sir f
Parker. Yes, '
Mr. Jonet, Wbyr, liioti, will you please i
five niy lord and jur}' an accoucit of nhat joq
now of this matter f
Parker. At Michaettnas-day waa twtire
month » I t4ime to Mr. Gorras Wild's bona
who Was then mayor. It waa about 1 1 o'<
that 1 was there'. There were a great i
met that used to meet that day, in otdar t» t
choosing oi^ a i (>r« lyid there were i
i^rcM many oti r mayor did not kn
of their roiDini^ ...m , J»>v he gave no i '
he saiit, for tKivf^rdl ot* them that uame, to i
pcBT there, They did iniporttinc bim
much to he gone, In order to the electioo of 1
mayor, ^aid I tn the mayor, w© do expert m^
charter, and if wc should g^ on to tbe choaaioff
or a mayor, we hhouM he all m confufMon. So
after a white, ihe diiwlif |>arty witbdMir
ont of tbe bouse. Some gnrtlemcn, ttijvtttit,
met with them^ and went forward towards I
' Mary 'a chiiroh. Immediately alter cainet
charter down by bim that was last «woni. We '
were sent up In the churvh to dmire aldomttci
Filife, that was the town- clerk, to como nud
riad the rharler, and to let o» know bow wq
were to procwd in relation to the work of Ibe
day. He i^uid \w woiiid not come. Altorwarda
we went to the to\^"-^5»iT into tbe <
chamber; and alW time> siiyalfffij
Mayor to nie» broths , I would dea"
you and Mi% BipfKm, and Mr. Siherilf MatiO^
to go up to tlie cburrb, and desitr and cont-'
nuind my brother Edge to etmt ib«ni« and
assiat tia in tbia buainais ; ao w^tbdvo «ip aod
apake to my brother Kdg^; said I, Mr. Mayor
desires you to come down^ the ebarti-r i« ©onto,
and be would l i oaie and n ^rl .
said It if Mr. ^ ;ljmd, and
mnii fir*<»ves v^in <io w tknvn, tliry umy ue '
jwiljstVd ihfvf ih a ehnri> r, atid wc cannot act
r'' ■ T than hy '' * ' Mtlrrman
I , He kiu' ?rt1er,
I ,1.. ; he was by ,, ■ , i-- ^ml mt
know of auy new one. niul would act by tlia
old charter, and not b}* the new cme. Vl*lfaa
we (yanie down to 9/fit^ A^fayar,«ai4 1^^ y»T
59] STATli TRIALS, ;)o ChaAles II* i6U.~Tnttl of IVm. SgehtvcrtU, [|
th«r£«l(:re nil) not come dawn among you ;
ticr« V9 tfc f»pecittl commijtsitfn In Uie cfaorter di<
r^i^tctt lo tWr at* us, or /luy two of them ^ to
«wair you iiiay«»r ; wc must do that the fiii»t
th^og w€ iJo, ind go forward in tliat^ for wc
rah t*'» nfvthing till you arc sworn mnyor. By
ti les down a ^ eat man < Mr.
\ 1 : eat es, my hi oi bcr E < I l_ x che •
Tertii: it you please, I \%\l\ to<ik iii my paper,
and read tlicir uamcsi that 1 nioy be mor^
I, C J* Ay, look upon yourfiapcr, to tc-
frc^i your memory.
Fc/rAfr. There" waa SjichcTeHl, Or^ory%
lIulchiQsoit, the two GreaT&i*H, HainuH Ricfi-
afds, Hobert Ct reen, Salmon^ Arthtu^ Uiccard«,
John Shcrwin^ Ralph Bennet, aud Wilson, the
rector of fck- Petal's ■
Recorder. Mas iic there?
Parker. Yes; Sajnupl Hmith, Rd. Smith*
fng^. Hoc, Uarkcr, Charuell.
£, C* X M as Barker there '
Parktr. Ycs^ 1 bairt bis luiuie dowo io this
10* C.J. WeJI,ffoon.
Pmrker. First they forced iuto the coundl-
ouae, and forced us out : so I loki Mr. Sache-
fill, said I, vnu hare nothin;;^ to do here.
lUeofder, What said he ?
Parktr. Said he, I bare lo do licre^ 1 am
aeerned if I am a burc^ess. Said 1, no hur-
I acts here but a gowa-nuin ; for it is only
mayor, alderuien, and duthirig' that ane
cotiC€rmHi in the election, and %vts nei-er have
aov gentlemen among oa.
Mr. Poai*. Did they behave themseWe^so,
\ that you were afraid of tiiiik:bief ?
Parker. 8aid I tof>omeof our fiiendtif g^n-
' tlemen, take the mayor*a mace into your hands,
for they were tor M^izing- the great mace that
bdongito the mayor. Anr ' ' fake care
of the books. 8aid lVlr.8. Stop the
books. There was coroner /t vjnu'U^i* taking
them in hts bands. 8»id I, take noiic^e who
dares lake the books ; and said i to Mr. Sache-
verellf you have notliiug to do with the books,
the boots belotig to ut. isays he, take notice,
I will-^in a menacing way, and then heUl bis
tongue. Said I, I am sorry to see things here
this day : 1 have been a member of the corpo-
ration, and been present at these elections for
18 years, and J uaver see such a thing as this;
and* said I, I profess I couLd abnost cry lo see
these diiisenti on s made iimoti^ ua. Said I, I
must go, being one of those Uiat was in coxn-
nusaion to swear the mayor* my brotljei HaJl
is not here, and my brother Edge is ^vith theni ;
*'" tbcy keep me here, tlie mayor cannot he
lorn ; so I puhcd off my gown, and at lant
i^^v bue I waa resolved to go, with
h' A Clouding I got through. But
M ! nor way swuru, said f, you muKt
now :i r, and give ontiT tor tlie peo-
ple to < <^ tie dicb Sayii he, will you
itayi No, Hiikfl 1, 1 dare sluy no k»ngc;r; the
rmle ttrt» bnoyea up to liiat Iteiglil, tbut I
am afnud we abaH bid knockod ua the be;id.
Sol went to my bioltier Hairs, and I aaid j
his wife, stster, citJicr give mc a gbts$ of
or sack, Ibr 1 aiu even s|}ent.
X., C* J, Tliat was to recover hb heart i ^
thill ^\as sinking; for an aldentiatrs heart']
neralJy sinks in sudi a irigbL
Parker, We did proceed on then,
went Itack again ; Said I, if they niuist
knock e<l on the head, I will go and be J
on the head >vith thciiu
L* C. J. A\\ ' igccame tohb
when be liad ,i noe,
Fa$'k€r. 1 iiM I u.r.ii Uiiif '•'-'■ *-'
the mayor, let us go to your i
lef u§ proceed on to rhooj^ a i
him, ami all other fiihcers.
have nobcMly to a*si*l as, we m
we can. And we went thither, and pr
to choose a new mayor, and then newf
and coroner, and chamberlaiji, and we |
tlient their oaibs» And after aU tlii», we wa
4 to the ancient custom, to the w^
% anil there we gave order. ^ lor
iinmauon to be made, to give notice to
ctn-jtoration who was then mayor, whoi
then aldermen, m ho were then she
were then coroners, and who was lliett i
her lain for the year ensuipg. \\ b list 1
doing, Mr. Sherv^in, Mr. Green » and j
many of them came down hoUowing and i
ing, No new Charter! No new Charier I
they cared not for the new charter, it
worth a groat.
X,C./. Who said that?
Porker. Sherwin, a man of a good i
They were going fast away : No, aiid f
go on the old rate, we are m a good cause, j
we do not fear them a |kin ; if tln-y do lay
it w ill be to their cost.
L. C, J. Well said, thou hadst dnmk a i
glass of sack, I perceive, for thou wer^l i
horrid friglit before.
Parker* The next day they could commn
all the counsel iti the town to attend tbcm wj
their new mayor. Greaves. There was J
Edge, John Hherwio, and a grc:it ma
tlemen, with swords by tbcii side-s, \vaiJ
the market cross, and made pi
And after that was done, tlicy c<»ii
on Suudav ; for on Sunday Mr, Gittet^-^
may or, came with abundance of people at
heels, not gentlemen, but gown- men,
thiU were ot" that parly, and offer«nl to
into the seat were the mayor was ; und we v
so fearful of disturbance, that we were
to have a guard to preserve the mace, i
secure it from being taken tiw ay by viole
nnd we writ a letter to Loudon to 'mj br^
liull to acfjoamt hitu with it, and $;cnt poiit |
my lin'd tkike of Newcastle, to let hi m J
how it was, that we were afraid ol' being |
eil OH the head : and his gi ace waj^ sal
that he imme*! < lu us, and wastlid
alxiul four or In < ^, imd then we I
to be a little in hope.
L, C\ /, Tbca you b^an Ki be iQ
agaluf
Chancrl
iTvM
tuae, aim
STATE TRIALS, 36 ChaMBS II. 1584.— mi? oiher9,far a Riot [6S
trkr. How hare tfaey faehaTed tbem-
■MB? '
•far. They baTe had sncb cabals, and
«, and rlubs, that we have oilen been
tftkn.
,Ealt. I luppose they can drink sack as
■jia.
LAnnn. Pray, Sir, had the burgesses
■■T&inffto*do with the election by
iiiBUtw?-PcirAer-. No.
biWu. Mr. Alderman, yon have been
itiwia that town.
lAv. My grandfather was an alderman
L Fmu. Dill you ever know in your life,
tee gentlemen ever used to interpose
■in^ srconecm themselves in the elcc-
iltr. Na; we always went into the coun-
MB^aad were called one by one, and the
mm Wft-T came in amon'sf us, but only
ptenn that my brotlier Edge brou^^ht
l^ematy, to shew him the formality;
Itp »y llursess came, but those that
ilkt coonciT, or clothings, as we call
-*! Mveraaw it otherwise, and I have
mpoimany.
HMMf f. Did not Mr. Sachevercll, nor
Mkeaat-lmrgesses, use to come in ?
m No, Itoidthem, says I, this charter
ii^yon have notliing to do.
Iki^p. Did Mr. Hutchinson and Mr.
RfMetDcorae?
Idt. Ka, tlicy were no bnrgfcsses. But
"kif that if vou please, I would
rMr. Hutchinson, Mr. Gregory,
is and Samuel Richanis, came
a bather Wild's, the uld mayor, and
ear mace. SSaid 1, what nave yon
Utile mace? Tbey said, Mr. Greaves
f» hath sent for* it. Said 1, if the
nira little spirit upon him, be would
laneare you, to ask such a thioi^, for
teatheerood behaviour; said I, and
■lyor, I would secure them, and let
m their advantage against me ; I would
fjk these (gentlemen.
'anii. You speak of somcthinsr that
m at the cross the next day alter tlie
I was Mr. Saclievercll there?
BT. I believe he was.
mH. Did you see him ?
Rf. 1 was in mv chamber, but I cannot
Mr be was tfiere.
haelf. What, at the cross ?
IK' There were all those that 1 named
MI tell you. Sir, the riot continued
i 9mmhj ; for all that bore office on
iRCHHeaod attended Mr. Greaves to
RMr. Greaves c1api>cd his hand on
■eat: Haid I, Mr. Mayor, keep
■d do not stir out ; and he did not.
torn* Pny, tell which of the de-
lft at the cross on Saturday, or at
I was Mr. Gregoir and esquire
r, and William Greaves, and
John Greaves, and Samuel Richards, and Ar^
thur Riccards, and the Smiths and Sherwm. .
Ltroell, Were all these at church ?
Parker, Yes.
Recorder. Did they use to come to church
before ?
Parker. Sir, it is a custom to wait upon the
mayor the next Sunday, and they waited upon
him in their formality.
Mr. HoU. Did not you give your vote for
electing a mayor according to the old charter,
upon your oath ?
Parker. 1 will tell you what I did ; when
they called to the election, and to the poll, and
asked who 1 was for, I told them that there
was no man capable of being voted for, unless
it were Ralph Edge.
]^Ir. Hoit. But did you give a vote for such
an election, or no?
Parker. I tell vou, I said there was no man
capable of a vote but him, and I could give my
vote for none but Ralph Edge: and said I, lif
you will have it, I will give my vote for Ralph
Mr. LovclL Was there an election for Mr.
Greaves, and poll taken, pray ?
Parker. I cannot tell that, but I was by al-
most to the latter end ; for I could not get ont.
the croud u-as too great, till I had pulled off
my gown and crouded out.
Mr.LmeiL Whotook the poll?
Parker. Mr. Alderman Ii)d^c.
Mr. Lovell. ^Vas Mr. Turpm in the aounciU
chambcr at that time, or not ?
Parker. Yes, he was.
LovelL Are you sure of that ?
Parker. Yes, indeed am I.
Loveli. Was Barker there?
Parker. Yes, he was in the hall ; it is all
under one roof.
Recorder. The books that you speak of,
that 3Ir. Sachcvcrell would have secured, what
books were they ?
Parker. My brother Edge can give a better
account of that than I ; for he kept thorn.
Recorder. You can tell what thev were?
Parker. They were books that oelonged Ikt
the mayor.
Mr. 'Stanhope. Mr. Parker, you s:iy Mr
Wilson was there?
. Parker. He was in the hall.
Mt. Stanhope, You know it? — Parker, Yes
Mr. Stanhope, Are you sure of it ?
Parker. Yes, you know it, Mr. Staidiope.
Mr. Stanhope. 1 was not there, sir, how
should 1 know it ? Pray, how did Mr. Wilson
behave liitnself.
Parker. He was among all the'rabble when
they were shoutinuf, and crying out, No new
Charter, No new Charter ; he was an ab6ttor
among them, so 1 give it you sworn.
Recorder. He exurted them to it, I will war
rant you.
Parker. Yes, and has enct nraged it in his
pulpit sincre.
Mr. S. Wartf. Did you hear anything of a
standing- club to carry on this opposition '*
STATE TRIAI^, 56 CHknLiA 11. \6%A^7^al of Wm. Ssc
^
¥
$
fiy uf thr fkieiidoknU
ef
W3
I hear Xhttti is tt ,
%\u I, aitd tliv^ hate gitU
ium«i ot iuou<:'Y tor ttu9 busiu£4t.
Mr 5. Ward. U"^ " ** "
keep up tliesmnt
Farkcr. I have LrLmt s^
Z. C\ J. Tiiat is iioiliiii^ to the bdsbe^ ;
wV " • - 3 laikio us oluny such thing ?
S^vvcar Soinuer. [WhicK was
duM^ J ^ V 1 1 1: yau sent by the sheriff to dc-
duintl the mace ? and pniy what hap[»cncd ?
$umncr* Sm :\j ili:ir iihk 1 uas tlie sherifrs
«crjeaut, aQl and so
thereumflu^ ic ijoloij
out* and the uther caiiuig Tu tlvctioii, »ntf Stop
the books •, and my master the liheriff coiiiing
out, I got in .i» fM2Jt as I could) and gift hubl uf
the mace tlmt wn<* upon the cgunciUtable. ^Ir*
Kdph r Jr. Saloiott^ and Mr. ArtJmr
Jlia-an nil oie again « andtold rae I
111 ' 'i it So I went and lold
II I J iti went and dttnanded it ;
bui tuvy urn lurii l; 1 1 iiitu gooe al»out his biisii'
ness. "Hut bclore I went tirom the Uiiyor's
house, l)ie may or called roe in, and iiaidi liubio»
do not give any occasion ef oflence lo luiuj,
i^oinanor child, to-day,
Mu order. Tliejitry desire to know who it
was took the mace from you ?
Somner. Thev did take it firotn tne.
IUccr(kr, \V"ho did ?
Samner* Mr, Rak»h Bennet, Mr. Sahoon,and
Mr. Arthur Kiccards , them three laid hold on
me, and told me 1 hadnoihing^todo with it.
rMr. Jennings. Bid they I'orctrit fipotii you ?
SomtiCr* Y*£i,
Mr> JcHfiitt^f, And thev did refuse the xnaco
te Mr. MttUnVJWwards >
WSomntr. Yes, thev did.
I ]ii .- \/ , n ^f^tpc, vVherc was the mace ?
I k by upon the table,
f : ......rupc. I thought yott said they took
»■■
tal
H,
^ from you?
Stwiner. Ye
ea> af\er I bad Uid hold of it^ aod
taken it ojT the table.
Hi, FiUDU. Wereyousentforit byibetbe-
riff?
Somncr. 1 was flerjeant to the aberiff, aud it
Wlonged to me to oury the iDa<;e.
L. C. J. Well, go on,
Spmner. When ihc mayor came into the hall)
nnd desired to hare the new charter read, and
hi»4rd in peace, earner in Mr. George Gregory
and Mr. Hutchlnsonf and at\er they came in,
they fell a shouting.
keci/rdcr. What did they say ?
Somnvr, They tidd the mayor tji^y had cliosen
Mr, Greaves uiayor, and if he vvuuid comc' and
bear him sworu^ he mifj^bt. He made ihem
^ome answer, but I did not heiv vvhat he t^d.
the nijise was «o ^rcat There was one that
■tOod by mc, one Martin Chambers, whom I
spakt) to, and said^ Prillice be quiet, or hold ihv
tongue, do not make %\xc\\ a uoisc ; and witU
that he up with his haad| and hit tpe a full
twop QTer th« faco*
X. C. X Who waa that ?
Summr, One Martin Chamhen ; aod
man they hxif e brought up to be a wllnefi
tbcut.
Mr, PciaiV. Sivcor WorUcy, ^ Which
done]
Rrc(>rdrr, Pray will you give an aocomil
wlielher vou saw' WilsinI llierc, and id wbal
place, ana what he did ?
Wort ft!/, Ytrsj, I aaw him in the coiinci
house, my lord,
Hccvrder, In the council-hoti»e ? or in I
hall do you mean ? — WorlUy, In the hall*
Htcardcr, What did you see him do T
Wifrllc^, NoUiing.
RtatrdfTn Was he in the croud T
Wortltif. Yes.
3tr. Feu is. Did you sec the mace
awav?— UWi/r«« No.
Mr. Po.w«. What did you s«<
do? Or what did you bear any
Wort ley. Mr, aachcvercll bid tiirm »u
hook»*,
Mr. AV/A. My lord, I hopr we liavc i
ciently pro^eiJ our tj$&ue.
L.C.J. Did they make any !'"''^" '*" '■
bub» or outerieij iu the hall ? — !
L. C.J- Did tliey make au_. , -,^ .-
council- house ?
Worthy. I heard him bid thciu stay
hooks, thai is all.
X. C. J. Uow many might there he oft
gocMi Sir ?
WortUy. There might be a hui>drcd.
L. C. X Were there two hundred?
Worthy, I cannot tell how many thee
mi^ht be.
Sir. Holt. Pray, Sir* ^Vortley, befure yo^
g0| did you give no vote for tlie election of \
mavor upon I he old charter ?
Wortky, No» 8ir.
Mr. FvUejfrn. Did not you gii e a tote
that time ia the council -chimb^^ ?
Wordey, Yes, thbre was a vote, but 1 j
it for Mr.' Toplady*
Mr, JrnntfigB. I'ray swear Mr, Rd, Wijg
(Wiich was done.]
Recorder. Pray will you give ati
what you know of this bwsinesf ?
Wright. As far .is 1 can give an aceount»
was thus : I saw when the new chiivier ca
and was carried to Mr, Mayor's hoiuse» and
was given to the uifiyor^and it was met
that by the company that was going to i
and they were aiujuainted there \»aj» a ||t
f^h^ri-,.- MTul desired to return buck ajjain ;
'I not, hut went to churcli.
1 — rr.t hi K L f imKiiiphtT lUyntddij, s
one Mr. - i ed to come and J
it read, hui uu \ it.
Recorder, U hat did you do in tlie
oit-chamber ?
Wright. 1 was not there, but in tlie hall ?
Recorder* What did tliey do in the
Wright. I will tell you what they dii
They hail itie charter )>eibrc tliem, and it
goui^ to be rend) and the buigt^soi wtim
I
STATE TRIALS, 36 CUARLI^ II. l£84t.--«|i4 others Jqt a Riot. [6$
Mjeli till fiacb time as Mr. Hntphiiisoo
Ir. Gregory came to acquaint the mayor
Imj kad clio«en a mayor, ami desired bim
Bc nnd hear him sworn. To wbich Mr.
w aaawered, be could not, neither did he
If wliat authurity they did it. AUer this
i^ta a great tumult there, aud some cried
A Gieu» es, A Greaves ; and others, No
Charter, No ncwr Charter, ^veral times
veiie W^tiretl auil persuaded to he silent
l^tt, but tliey would not, hut continued
i^Mikuoiia manner for a ions' time After
1 was at >lr. Mayor's when Mr. liutchiu-
wiHr. Gregory, Mr. Art^.urlliccardsand
Bkkurdii came to demand the mace,
»ipQB Mr. Mayor t<^d them he would not
V itbot to the saa^e authority by whicb
id it, otherwise he would not deliver it.
ims in ttiis company Mr. Ralph lUrnnet,
Mn 81ien»in, Mr. Samuel Smith, Mr.
mm Trigi^, and John Hoe ; tliesc 1 took
iite notice of. AAerwards, wlitn they
Btopradaim the mayor at the cross, there
■dm this Hoc, andShcrwin, aud several
■I^B a great body, tliat the}- could not pro-
■ Ae mayor thorough! v as tbey sliould.
bCwi- Pray what number were they wbcu
^«■eiMo tlie council-chamber?
r^b. There might he fitly of them I he-
. Who was the chief man among
mf-'Wfifkt. j^lr. Saulievcrcll.
IkC J. Hhen they were in the hull, how
Wngb. VWa they were in the hall, J be-
iHiW| wcffcwo hundretl.
Mtihrti, My lord, we rest it hfro ; ^\'c
ftarA^rc^ven a snti'»factory pn)uf as to
^ddcadants namcnl in thr infonuation.
tb* haUciftn* ^Iu.y it pIvUAU v(»ur lordshio,
li KB |S%ailcm<?n ot* tliejiirVf 1 am *■'{ coun-
lilAft case fur the defi*u(!uut> ; nii(!, iiiv
ri^Mtaithstandin^any thii;<^ thutlms bec-n
l|niachc;ie we shait ninkc it piuiiilv to
p», that we have done notliinij: iuit {>hat
ilBihyal good subfccts and honest ii i u'li /iiiui
Sae were tiu- from stirring or incitin^r any
ilaikd disurdir in this tuwn, ui* an\ thiny;
^W^ be csJIitl a riot. And, my* lord, 1
^^' ^le^^e a little to 0|)en thur infuruia-
\%v uiav come to the utKution upon
uf matiL-r dues stand. My lonK Uicy
\ m (heir nifui iiiatiuu chargr:d a turaul-
nbl V upon tlie defendauls ti> disturb
mi ihfr Hiayor upon the new char-
kt this did continue l)y the space uf
k npon thai same duy, a:>d tlicre is
respokcnof any otlicr day; aud so
■Ihfy talk of \% \i\cn hnppcm^d tlie next
r wholly uut of the information.
is anotlurr matter, aiK»tber pas-
km infomiation, about the taking away
^■■MflJin, who was then sheriif.
M| oar case as to that will stand
Jaaaa ifaenif by the ohl charter,
•Jhianr-; and tnei if Mahn were
r, ijknhy the aurren*
(lerhe was out of oflice, aitd was not sherifC
andso the inibnn^Uon fails: For 1 supjiose
they theniselves would not have both charters
to lie in ibroe at one tinpe ; and if they would
have this to bearer the ncvr charter was grant-
(hI, then was nutMaliu sherifl'by tbe new char-
ter. ^ tbat then all the fact that is laid t on-
«-i:rniiig the taking away tbt: mace irom Maliu
that was then sheriff, i» quite mistaken, ibr
Malin was not sheriif then, if so be tl»e old
cliarter was not theh in force, for lie was not in
the new charter, or any way elected or sworn
sheriff: So that therem also, my lord, we think
it impossible for them to maintain that |iart of
ilieirinibrmation. My lord, the next matter
stands upon the assembling and acting of those
(tersons that did assemble and act uuiler the
old cliarter; aud therem, my lonl, it will fall
out thus : By the old charter the mayor is to
bo elected, and take his place on Michaelmas^
day, upon which this fact is allcdged to he;
Greaves was elected beibre this time, upon
the 14ih of August according to tbe usage ol the
old charter. Then, my lord, according to the
coubtilutionof that old charter, a copy whereof
w e have here to produce, if the last inn'yor be not
present, the coroner has power to swear the
new one ; and that will shew that this is tlie
rigrht day, and all things were done by the old
corporation, as is usual and accustomed in
all respects. There is one tiling they say
some ol' these |Htrsons are not of the corpora-
tion by the old charter, and others had uo voice
iu tlic election ; my lord, for that, supposing
they had not a voice In the election, yet to m
there was no crime ; Ibr if a man be a burgess
ui* a town, and be present at the election of
otiicers ibr the town, and d<x*s either ad\ ise or
assist in the election (and he is not altogether
unconcerned iu it neitlicr), this of itself will
make, no crime. Why then the day that was Ali-
chaelmas-day, that was according to the usage;
and the place and pnKincdin^s were all accord-
Jh!!^ to the custom that they always used u]»nn the
oUl charier. For ttrst, they go to the ol<i mayor,
ft'um thence to chui-ch, from thcnt-e to the
council chamber, where thoy used to e^stablish
the mayor that v. as lM*iore chosen ; tliitlier
ilK*y V. eiit, there lliey did elect thi:; Cii-eaves
to be mayor, and v«'hen they had eli.-eled liini to
be uiaycr, he did t;end, aceordinp^ as is proved
by their wiUicsscs, to 'the old mayor, wlio was
then in the hall, to come and be present at the
swearin;jf of tlie niw mayor; uo that still all was
done us is usual accordmL^ to the old charter ;
and if that charter be in ibrce, aU is le<r«d, and
the answer that the obi mayor does y'ive, is
also prov(Kl, my lord, fur the ilcreiulaiifs, all,
besides four, were not iu die hall, but only in
the council -chamiH-r, for any thinj,^ that ap-
pears by the evidence ; hut if the evidenee
be etherw is;p, we ha\e witnesses to prme iL
When we were int!ier<jinui! ebaniber, and the
may or come and bn;u«r! It the charter, we were far
irom opposin;*, but did desiro the new -charter
mij^'-ht he rend, the mayor refused tlic readiug
of it, but took it away with luai| and went
caerciBiQ^ of hts oflice ;
tion is oaite Tarying from the fact* Then I
b this nirtber be«ides, my lortl, ibe i
and mectiii|f, and gpoitig' oo according^ toi
old charter, wa» on the f9lb oC Strptttnoer* I
new charter bears date the 38th ot S^atfmbErJ
and conies down av you see the next .
^a3 !VlichaeIm&s day* at eleven o'ci*
ire have it in proot\ that the surrender 0C
old cl>arter, which they pretend, w«» oof
rolled till the 7th of October after; andi
favour^ my lord, tlie old charter could I
delemiioed, till the surrender «-««
which was not till the 7th day of i
and till that time the old charter conti
in force, it was tit for them to act ondrr it, 1
it did so continue ; and if they bn
their election on that day, they fiad I
in not proccedintf according to the ij
rviy loni, wc will call our exklencc, and 1
out our fact.
L,C.J, Bnt, Mr. Polleifcn^ as to that 1
talk of about Malin ^ Was he sheriff or 1
not sheriff ?
Mr. PoHcjfen. He wasuoiaheriflTi
to this information.
L. C. J. But wai* he shcriffor t)Gt sberilf t
Mr. Thompson, Nut sherifi^ h^ ikm
charter, say we.
L.C^J. But 1 pray answer roe, Was
sheriif, or not shetiff ?
Mr. Polkjfen, 1 Uelieve he wts sheriff I
the old charter.
X. C. X What hod you then to do irith tb
maoef
Mr. Follexfen, Yet say we, you are ma
taken in your inforn^utjon ; forit so be yo
lay it bo an offence, the tjikingf away thef
from Mahn that was sheriff by siK'h a «~
and he l4 not so, then the laturruatiofi
taken.
L, C. X There is no such thing* \
sheriff by such a isharter*
Mr. tovdl. My lord, we do i
justify-
wlock they proceeded
Mj Isf^, tBeoiotrO'
whM m the rifht and
ile^iidmp^ ;
icfife in tills
then in force,
ike old cbaiter to
their mayor, to
lll« oM mmfot to swear him,
the rc»cr must be reg^ular, if so
' ler was still in
rirtss the other
iwful, if that be
pT but what is
H re, and according
tjffe^ce, no violence
■' ' ' ' "*^y ot* these
,ik of the
., ......,c3 mayor^
' which in ekciioLs
it there are but or-
^HeooiidiBgn rnrh ha are usual In thingps
pi ttlHirv^ 1 KtifH.- it will not be construed
i i%oi (♦r breach of the peace, or of-
^i» \\\ lortl, the tjUestions that will
~ mmtion, are those that 1
if so be this mace was
^^ tricnihev huf iner laid it in
i%li;it we did take away froiii
a mace that bel ousted to
lit' his office J if he were not
arc quite out in their infor-
(nmld not be shei-iff by the
w ill be prt tty plain ; fur the
*a\ vva« Kurrendcred. That
*fntrbv the new, is as plain,
.lued nhcnff in it. But if he
th** n*'w charter, yet at this
nly of sheriff, for he
tit.^ ojfioe by the new
'». And there is an
tther the sheriff, nor
'" '' h»m their titCcc,
Now all that
:»ber, of \^|jicii
•^ Ik* fore these
id tlir oath was
*yor, ami where the
' * Hut tlu'v wi:re
r ne^^
'vhort
tHiunciUchara-
Ti thf old char*
■ «tion,
I by
U J or the
L. C. J. Ay, but let bim come here first,
answer the ohjectjon.
Mr. PoZ/rx/^n. My lord, it is expressly
in the begfinuing of the Lnloimationt that ^
was mayor, and that be liad summoned ai)
scmbly to choose a mayor, according^ t*i
charter granted by this kintf ; that tlie
ants did disturb tbat meeting*, and thai,
lion ; and that they did take away
beinR; the en&ign of office, to the said ^^^
of the county aforesaid bflonq'ing, froiia~4
.lohn Malin, "being then one of the sheriflii
the county of the lown of Noiiing^hatn
L. C, i. All thnt is true
Mr, PaUfxfcn. Then they must make it
be ly one or the other charter. We say
vr^9 not by the new ^ they dcoy the old Id.
in beinr;^, anrl ispcdk only of t)ic new,
X, C X Ay, but 1 would fam know of
whether he was sheriff or not shenff.
Mr, Poller, I think they Uiat will chargti
mUi an otitncc, ought to tnak& out thai
Vj STATE TRIALS. S6 Charles II. l684.-HniiI others, fcr a Riai.
L C J. Tb«-y say he u sheriff, and you say
lliiikmff ^-ourselves.
Ir. PoiUif'en. That cannot consist with this
|0Uir quesdon, as I conceive.
LCi. Why now then let us come yet a
Mi farther ; it is said, that such a one bcinjur
WfLnA to he w-as, take it which way you
I «; far if the new charter have no effect till
faiHraiderot'the old be enrolled, then Wild
itijur by the old charter ; and if he was
Wmtf It wu eDough : and then he uvus met
MNBS new mayor by virtue tif the second
Aliv; it is tme it is so said, though perhaps
Wribf to strictness, it could not take effect
\ Jfefaicirolliiient uft* the surrender ; vet what
faiillB lliis ofTeace ? I would fain Iknow of
Ji^ ii it oot true in fact, that he was then
W^,9bA met in an assembly for tlie election
lilinr mayor?
Jk. PoiUifcn. It is tme ; but that we con-
MwiB ootiiuppOrt this information.
LC. J. Then 1 desire to know, how comes
& 8Mbe«'erdI, and these sort of people co
■rile in i:?
lk.folleifcn. I fit be insisted upon that he
iBHVwl^- the old charter, then we hope we
Ik fane aotbiDg but what by the old charter
mwnjatafy.
Lis. frhat had Mr. SacbeTercll, Mr.
UyMi,and 01 V parson Wilson to do there .^
VLhUyffii. By the old charter Mr. ISa-
AnaD n 1 bui^css.
^C. /. if he were, was he capable of
Jh. Mufcii. IIo miifht be present at an
■^^■4 was concerned as a buri^css.
'^LClBat could he meddle vi ith the elec-
^/
Jk.Pdk2f(n. Then, good my lord, what
LC]. Wonderfully done! those thin g^s
-^Oi never answer : in London, for the pur-
Ul^ it VIS not an offence fur any freeman
■pant at the election of the mayor ; but
'i^iMneluffrLcmcn comethut arc not livery-
ttd ran themselves into the business to
raioei, anil «rivc direction about that they
Mkio? to do with, and cry out, pray
pttebools, and pray, good Sir, deliver tiie
t; then tJiev hail concerned themselves
witli an authority to which they
IM pretence, which is an offence ; and if
IVftU busy themselves in that which does
I tliem, they must suffer for it. Mr.
ill, and the rest, were as capable of
advice about an election, seven
! as now ; what reason had they
^li oome and make this hubbub.^ But
I will shew themselves such wonder*
before then: advice is asked or
Xok//. Will your lordaUip please to
li Me word —
iBmefaii. Prithee give me leave : my
• jMi see how the fact does appear
•ridmee, I aupposii we shall uot be
d^«f mny 4imder.
[70
X. C. J. It doth appear very plain; man, it
has been very fully sworn ; it has indeed.
Mr. Pol lex/en. "We hope to satisfy you
otherwise by our evidence, as to the fact.
Mr. Lovell. Your lordship is pleased to ob-
ject that upon us, which doth lie upon us, and
requires an answer
L. C. J. It does indeed.
Mr. LufvelL As to Maliu*s being sheriff. But
my lord, I conceive he was not slieriff; for
if the old charter was in force, tlien he was not
sheriff: for there was a new sheriff chosen
and sworn, before the mace was required of
him : if the new charter were in force then he
was not sheriff; for he was uot named sheriff
in it.
L, C. J. Who chose the new sheriff?
Mr. LoTcU. He was not chosen by any
body, he was named in the charter.
L, C. J. Malin was sheriff before that time,
and was indeed sheriff till a new one was chosen
in his place ; and therefore the detaining the
Mace was unlawful, that is our opinion ; and if
your opinion be otherwise, it is as idle as the
opinion of the new charter.
Mr. Holt. Will your lordship please to spare
me a word for the defendants ? My lord, the
information doth consist of two matters ; the
first is,- the disturbing the election that was
appointed by the mayor, by virtue of the new
charter ; the next is, the taking away the
mace, b<nng the ensign ot ollice of Malin the
sheriff. Now, with submission, my lord, I
think they have failed in the first part of the
information ; for thev have laid it special, that
Wild beinsT mayor, lie had at that time, when
these defendants did thus assemble themselves^
appointed an election by virtue of tho letters pa-
tents of this king ; and after he had so appointed
it, these defendants did assemble themselves
in disturbance of that election, and after pro-
clamation made, continued their disturbance*
Now if this Genas Wild had no authority to
make or appoint this clecrtion by virtue of any
charter, then had he no anihority to make thts
proclamation ; and these defcnJants are not
guilty of this int4)nnation, supposing* what they
did was not ju&tiliuble in the main, yet as here
laid, tbey are not guilty ; for it is not, nor can
be to the disturbance of the election, or con-
tempt of his authority.
L. C. J. Come, tliat has been snid, and an
swcredover and over again. Call your wit-
nesses.
Mr. Holt. As to this business of Malin, and
tlie mace, we did say it did not biflonjLfto him ;
and it is an usurpation upon tlie king, Avithout
authority by any charter or grant, and a no-
velty. No man can have any i-'l-Iiju of au-
thority, but by tyrant from the king.
L.'C. J. * What is thatto ymi* Why did
you take it away ? What authority had you
ibrthat?
Mr. Holt. This is laid to be an affront to the
king's authority, and it was uot, for the very
mace was an usurpation.
L. C- J* Ue was in possession of it, and that
L, C. J. Pray ffo on to your witnesses, and
do not spend our time in vuch trivial stuff ; tor
this is ail stuH', mere stuff.
Mr. Holt, My lord, we \rould make out our
deicucc
L. C J. Do so if you can, call your wit-
nesses ; ue must noi give liberty to e^cry one
of the counsel to ni.'ike speeches of the same
thin^f, over and over ng^oin, and all to no
puKiiosc.
Mr. Holt, This mace did not belong to
Malin.
L. C. J* Yiovf do you know that ? Can you
tell wliithcr the king* had not gi^cu them ouch
power ?
Mr. Uott, It was never given by tlieking.
X. C. /. Docs the king qut-stiuii* them for ii ?
Mr. Holt. We will prove it uii usurpation,
«nd can sliew the time when it was first
usurped.
L, C. J, This way of lu'huviour by riots,
looks more like the times of usur[mlion, when
nbliles meet to meddle with t;'overnment.
Mr. . My lord, I desire to offer only
one word that has not been yet said.
L. C. /. No, I will hear no more speeches ;
call your witnesses, if you have any : sure you
take yourselves to be m your eommou-halls,
and council-houses, making sjKkiclies.
Mr. Hoit. Call Edwara Higley and sir
Thomas Parkyns.
Mr. Polkxjcn, May we read the old charter,
my lord ?
X. C. J. Av, read what vou will, and offer
what you wilf in evidonce lor yourselves ; but
let us not ha^ c 9iich docirincs preached omong
us, as settling govunimeuLs, Liid trying rights,
by club-law.
Mr. PMxfcn. God f^^.rbid, my lord, 1 am
sure noliodv here drsiivs nn^' >'ucii thing.
Mr. i/o/?. S'.vcarLd^*ai(ini-;;ry. [Which
Was done J
L. C. J. WoV, \vhat dv you ask iMs man ?
Mr. Hi)U. [Showl'i'x I''"-" »'» pap'^r-book.]
Is that a tmr copy of t^c oM rl-.artcr ?
Highy, Yes, it* is.
Mr. Follcifcn. Wc desire it mn.y be re.id.
J-r. C. J. What would yon read' it for?
Mr. Folic r/en. By that it will ajpear the
election was* regular, acc<»rrrmg to the olri
cltarter, whicti we say is sllll in force, and so
we in no fault.
X. C. J Shan we enfa* iiito a <]ueBtion of
that nature here, which 13 in force ? No, wc
will not. Why did yon commit this riot?
Answer that.
Mr. PoUofcn. Uy the old charter, my lord,
the mayor and burgesses are to elect.
L.V, J. Ay, Mr. lH>ll^efi, and you know
the old charter of London, was to tne mayor,
comiiK>Aalty, and citizens of Londota, to cbooie
sMyor; tnA We kiio# Ihtt the imyor, cotn-
71] STATE TRIALS, 96 CHARLfei II. l684.— TWrf cfl^'m. Euclieverttt,. f
18 the same thing as to you, whether it be of monalty, ind citizens of I^idon, haVe 1
right or not? Vou never pretended to keep it chosen a mayor this many hundred of yen
for tlic king. We know very well, that that election is tm
Mr. Holt. If so be they omong them- by livery-men : now yon come and say, pr
let us see how it is by the charter ; why
well may nul all the citizens of liondon cm
I lo be at the election of the lord mayor ?_ If y
I can shew me that heretofore, before this tin
j that there were other persons th&t used to
prese:it at elections, you say somewhat : boi
you have only an ancient right to be prcse
and they have ravished this right fVtmi yc
you hnd\l')iic exccoling well to have ftsserl
your right In a lrp;al com-<;e. But do yon IM
you arc to regain your rij^ht by club-law, 1
throwing up your hats, and noLve and rio
^aiid opposing the king's authority ?
Mr. Pollfjfen, My lord, we were never i
opposiu^ the king's authority ; we never wi
against til eking?
Jubt. Wit hint. Who was that against, I pit
when, you said, No new charter, No new chi
icr ? VVas not that against the king ?
Mr. LtnclL That was none of us whocri
out so.
X. C. J. Who knows in a croud what pen
in particular makes a noise, or docs not ? Y
w« ni where you should not have been.
Mr. Pollexfen, My lord, we pray the ofaaul
made to tliistown, in the reign of Henry
which provides, that the mayor shall be chpi
by the onrgesscs, and sworn by the prerodii
mayor ; hut if he was not pre^nt, ke shoe
b<» sworn \rj the c<>runer. Your lordship 0
jects the <*asc of the livery-men by the dty
London ; tiiat is by virtue of a narticnhir h
law : but in our ca*^, the old cliartcr haW
prescribed this nietiiod, you will not take it<
of tliat method, without their producing 801
by-law for iu
X. C J. Yes, yes, we shall go according
the constant usage within memory, because 1
will not, u)Mm this inf urination, *try the rig
one way or other, f^hew us I)y the u.«a
that therc was a prctenrc f'rr suel! (versons
Mr. Sa»'he>'crelU ftnd the oilicn; here, to
present at the elections.
Just. WiC.ins. In this ca?:^ it shall be p
Rn::.:*d t':.r«» wp.-; a by-law.
I**;*. J'-.iiUrfcn. I hope you will presm
nT,;lii;ifjlo iral:;^ us frtiiliy'of a crime ; th
ought*'* A^tyw lh»' by-law if l!jcy have any.
X. C. J. "1 think we neeil not trouble ot
stives nlK)ui that, what by-laws have be
ma'fr' ; but we find these ;7?rsons in possesd
of this u«Kige, and so they havtibeen for tin
IR years past.
Mr. Pollexfen, My lord, that will not tal
them a title.
X. C. X We will not allow the right to
tiied upon this information.
Just. Vilthins. Mr. PoUexlen, wbat do y
speak of stvtraring by the coroner ? That cot
not be in this case, for the old mayor n
there.
Mr. Mhrfin. Not it <he
Grearei.
STATE TRIALS, S6 CharL«S IT. 168^4.— wrf tihcrsjor a KM. [74
fkracelL MV lord, I wmiW only ol»-
le iliing ; tb« ciime ch&rgf(*^ i)p»n iiR,
B«t departing after the prodiinrn'tfoii
■ow I do not observe that ffaoy |ivove
Sbcbeverell was ever there a/ter the
7. I thought indeed you wore very
I were so ea«j;er to spt^k ; but your
lOD is very much in the wroricf, lor tlie
NHtire that Mr. Hacheverf iT and the
le ooin|mny staid after ; hut because
U observe' it better, call Reynolds
ftu were so i\ill, you could not let it
yea fvere tapt. Reynolds, upon your
fyou make proclamation tliat ull iier-
Ivfere not snniinoned, or were uncon-
ilhe ri«!ction, should depail?
ddb Yef?, my lord, I did.
/. Did 31 r. iSacheverell, and the rest,
pe aftemr&rds ? — Reynolds. Yes.
hnAirpf . My lord, the mayor I' think
heM not summons any one : tlie in-
■ is laid, that there was an assembly
^wmed and called before him.
1/ He told you he sent to Alderman
,nl Edire, and two or three mure, to
Rj and bear the charter read ; and he
toflBjemt Bii^land, and he was huffish,
llrtrffckim uiraselt' concerned in the
hMK: lor it seems hu was notcontinuH
Mhi rf Teoorder by it. lie tells you
miMvwas read to them, and with
Mh liAit read it, did go throtigh with
i^lrvto mistily interrupted by the
[taviimade by the defendants and
SPHgtti proved tirat there was an
■MiiBoned before hi;n, sure.
ilkttiaf. Mr. Stanhope, do not ^'on
Mm^ that he sent to church to summon
toons to him, and the v would not come
b«MfiN'them?
^Utrftn. 31 y lord, they should pro-
Ikvew ehartor, 1 humbly conceive.'
t/. I ten you lief ore hand, we are n«t
#1 validity of the new charter, or
L hi whether you are j:uUty of u riot.
BpU. Ny loril, if they were in po.^srssion
linenil>y their new churtrr. tiMy should
hnoew eliarter : we ^!l?».!I i.l-fW you
to the uiavor (::i(l biu'^fCHKCS
fCm
Cn you shew a rhartt-r that the c!e-
ivor, ahlcrnien, aud hur-
mk. Kwcar l.i'ke Oldham [W^^c^li
Hl^ Look over that hook, Mr. Oldli;mi,
Tliii B a In 10 copy of the charter
led at the Tower.
When did you examine it ?
*tnftot tell yon the particular day,
Itov iMig ago is it that you eta-
(=a twelve- month ago.
[liiy iwH liith, b it m true copy?
Oldham. Y^ I read it over three days a^.
Clerk reads. This is dated of 'H. etii.
Ju;^. U'iUiins. Where would ycu have i|
read ?
Mr. PoUexfen, We desire he may read that
part of the incorporating the town, and the power
ofx-hoosing the mayor.
Ckrk. Whereabouts is it, Sir ?
Mr. PoUexfen, Folio 81. [Which trai
read.]
Mr. Holt, Call sir Thomas Parkyns. [Who
appeared, and vi as sworn.]
L. C, J. What do you ask this gentleman ?
Mr. Holt. Pray, Sir, were you by in the
Coundl-Chamf»er at Nottingham on Slichael-
mas-Day was twelve-month ?
Recorder, Pray, Sir Thomas Parkyns, let
me ask you one question ; have not you laid
out any money in this cause i*
Sir T, Parkyns, No, 8ir, not that I know of.
Mr. Stanhope. Pr?iy, Sir, were vou present in
the council-chamber, when Bft. Wild, the
mayor, was there; and did you sec Mr. Sache-
verell, and Mr. Hutchinson come in ?
Sir T, Parkyns, Yes, 1 was there.
Mr, S/ an hope, l*ray, how did they demean
themselves there ?
Sir T. Parkyns. Vvry civilly, for any thing
I flid perceive, without any dLsturbance to the
court, or any body else.
Viv. Staiihopf. 'Did thcy u»e any gestures^
or behaviours, to occasion the nuyor to go
away ?
Sir T. Parkyns, Not as 1 know of at all.
Sir.
Mr. Stan hnpe. Pray, Sir, will yon tell all
your knowledge how the thing passed ?
Sir T. Parkyns. I understanding there was
to be an election of a mayor for the town of
Nottingham, upon l^Iichacl mas-Day, us has
been accustomed time out of mind, a Tcrv long
while, as I have been informed, at the cliurch,
1 was there, and went to the usual place in the
chancel, and there we staid iome tin:.-* till at'ttv
prayer ; and alW praver there was notice of a
new charter coming, hut then ! believe it was
not come ; but, as they were called, the old
charter-men, alderman Greaves, and the re-
corder, Kerj(»ant Bigland, and alderman Edgi»,
and sev.'Tal others, forty, I beiicvi; 1 could name^
did s< nd to I\Ir. Wild, the mayor that then was,
and Mr. Rippon, and rtthers, who were then at
the town -hull, and desired them to come up
to the chuncel, a.s I am informed, in ordiT to an
election of a new mayor : but thoy did not come,
but, as I heard, they Kent word back again, to
desini aldernmn Greaves, and the rest, to come
down to the Town-hall, which acwnlingly
was done.
Mr. Pollcrfen, An<l wlnt happened then!'
Sir T. Purkynf. I wasthtrr.ilong with them,
and went into the Town -hall and so intu a room
which 1 conceive tluy call th»: council-chann-
licr : and there upon Sfneml di><conr8es, there
w< re some were for goin;^ to voting for a new
mayor, and there wi«rc some that did say, they
had a new charter, and thev must have a to»ji:
g
75:
STAR TRIALS, S6 Caaslbs IL l6S4^TrM^ Wm. Saektwerd!,
aciwrdn^ to tint nev dttrto-; wibereoi^a
Bf9 «fisv<r. 1 U^ik^ nni^ io tint : I ^ fsetbe
ttiit*;^ ivry UkJfi wM ti»^ i>ear cbwr is a b«z :
I Uti'jk it WM to, Urt 1 4ij4 not M^sit cptt.
M/. Ccnif , IVs it wu AM read while too
wtr* tJ»*;re ?
K> y. Parkynt. 1 did not heir a word of it
md ; hot i thuik there was aldcrnian Edzedi'i .
•av, I 'i'i DM kaow bow I a^n to act bv tue oew
ciutfter, but 1 ondcntaud what I h-ave to dv by
the old ch^rtw fen well, therflcrrc: wc w illfwo-
OKd to the eiectioD of a &evi mayor ; mod then
upon that aocouot they did go to rodog, and
wv^raJ totes there were for aeveral persons, as
SrticuUriv for Mr. £d|^ bimseif, and some '
r Mr. TiifJady, but the most for akferman .
Greaves ; abd,' ^bco they did nDderstaod,
as I c^ttc^ve, th«t aldermaa Greaves had the \
majority of votes, then they did rise np, and i
weat away.
yiT.Pohifen. Who did? i
Hir T. Parkynt, The mayor, Mr. Wild, and I
alderman liippon.
Mr. Stanhope. Pray, Sir, did the mayor stay
all the while the Poll was ?
Sir T. Parkynt. He was there, I am sure
while thf7 voted ; that Lam certain he was ; I
oaonot say he was there all the time.
Mr. PolUrfen, Did he oppose tlie election ?
Hir T. Parkvm. No.
Mr, Pollej/en, Was there any prodamation
made fur any-U>dy to depart?
Sir T. Parkynt. None .that I heard of.
Mr. Jlutt. VVheii the nrw charter was pro-
durrd, wftH itdesireilby any -body there, that
it nii{;ht bi* read ?
Hir T, Parkynt. Yes, Sir, there was some
thatdiMinxl it mi (^ht be read.
Mr. Jajv^U. Why wa^ it not read?
Hir T. Parkynt. I cannot tell that ? but I did
heortliey should shew Mr. Kdi^c his name in
the new charter ; and they did believe he was
ontjnucd in hiit place, and I think Mr. Edg^re-
plied he hail bis niareby the old charter during
Lie ; and by that charter he knew how to
act ; he could notti'U what he was in the new
charter ?
Mr. FarcrtclL Pray, Sir, did any of the old
chartiT-men oppose the reading of the new-
chartfrr P
Sir 7*. Parkynt. No, iudeod, Sir, not that I
know of
A. C. J. Pray, Sir, let rac ask vou a ques-
tion or two, you arc a burgtss of this town,
are you not 1*
Sir T. Parkynt. Yes, my lord.
L. ('../. How many years have you been a
buiifChH ?
Sir 7'. Parkynt. Several years.
L. ( '. J. WfM'c you ever ut an election before ?
Sir 7'. Patkyns. No, but I hare been at se-
veral of their mWtinf^s.
L ( '. J. How came you to be there at this
timn?
Sir 7'. Parkynt. Upon no invitation hy uiy
body, but upon my ownacoord.
LCJ. Hov<
tiMemofelfai
t»r r. Pmrkym, Truly, bt lord, I
OBSv er von to ihaL
L. r.: J. No, I Wfiere noc ; bet 1
ask^oaaiMhcrciKStioc: wijoearethcu
thai? *
Sir T. Purkyni, Serenl gave their m
L. C. J. Did yov give any voce ?
^ssT T. Parkwmt. No, my' iord, I gi
Tote.
L.C.J. What did yondothere?
Sir r. Pwkyrj. There were several
^eatlemeo of the couptf^ there besides i
JL C. J. A J, there vrere several tbcf
hadnothinetodothere^aod which shoi
have been uere : did not yoa hear any |
m'ation m^^de at all ?
Sir r. Parkyiu. No, my lord, 1 did n
L. C. J. Did yon hear no crying out
conacil-chasikber, A Greaves Biayor, A G
31avor; No New Charter; Ko New
ter!
Sir T. Parkyns. I dki not hear any i
at all.
JL C, J. Did yo«ihear nothing sakl, Pn
the books, pray stav the books ?
Sir r. Parkyns. Ko, my lord, I did no
L. C. J. Pray, did you observe any tl
the workl aboat 'the maoc there ?
Sir r. Parkynt. Yes, I di<l.
L.C,J. Pray )etushearthal»lbrl>i
did not hear a great deal, nor any thing i
that other peopte heard ; now let oi 1
you did sec ?
Sir T. Parkynt. The old mayor i
with two of the maces, I think, and
lell behind; and presently after comei
Mr. Malin, and demanded the other mac
L.C.J. Of whom?
Sir T. Parkyns. Indeed, I cannot id
lord.
Justice Wit kins. What answer was gi
Sir T. Parkynt. There were several
not tell the particular names, that sak
hud as much interest in it, as MaUn :
luace ; and the reason was this, it was I
by several contributors.
L. C. J. Who was that said so ?
Sir I*. Parkynt. Indeed, my lord, I <
tellparticularly.
L. C.J. Alack -a- day ! now we have
all again ; pray did not you see the
called The New Charter as you ezpresi
Sir r. Parkynt. No, I did not see it
the box.
L. C. /. Did you observe when Mr.
called to read the charter ?
Sir T. Parkynt. No, my lord, I did i
L. C. J. I mean when he spoke to m
ther Bttfland to read it.
Sir r. Parkynt. My lord, I was tM
the beginning to the end. If yon please \
me, my lord, I will answer you to wfai
ask me : I think the mayor, Mr. Wil
spetk to-seneant BigiHMly ead aske
•omethiag or adrioi^ MH wliel it wm>
Tl} STATE TRIALS, S6Cmarlei II. l684.— awf others /^ a RioL [78
B*l tHI ; it WIS wimeihtns' cobc^nin{it Uie new
»dlKB»1ilclianc( " bud ail-
fv«reii Jhiio. Do \ < , or us
^i^umti^ * ' ' itii^- 91 VM. I ^I'tv MLisniinle.
Mr. This geDtkmao, my lonf,
Rt€9f4er. Ditl you nee any stniggling about
Sir r Na, T did ool. Sir.
iZff9 * anie Soiimer tu leave the
I dn not know, I cannot
Dkf yuu liotr any ttiing said by
NO| I do not.
j^A.rtj. Dill not he say. Hold tUe
" books?
N<n I do nQt remi'mbfT it.
Mr- iiiiU, Km^did you tftoy us long as 3lr.
thc^ci-dl staid f
1\ Parkym^ 1 staid as toug^ a9 they all
iiaUamay* Didyoa obscnre no noise
ic. No* by my soiil» not L
^ Thai IS 81 range.
Mr. Hafr. He vims not iu the hall where the
he be in the next room,
■Ah't
f'L / ', '0. My lord, I taid 1 waa in
e|iice called the council housa, and I did
iPtm tan ilieir alt went uut tofi^ier.
lUtm4tr, <Va» not you ail the prociamaiion
<^tb«iBftofIacei' ttud wasthifreno ibrow-
iiyiyiar hau?
ivTpPnri "^ V*><, they did, vthen Ihey
nd God s- ^^» ihe poople sakl Amen
tiildww ii|
iff, Sivmhpf^. Fmy did jou h^ar 31 r. Sache-
ftrvQdMtre ihein to be qiuH and iMjuceable?
r. T. Pitrktmt^ Ytfs, I did so.
[JUCX Diii ynu hear Mr. Sachefrerell
I k«» apokr to th« mayor in the hall P
f T* J^arkyn^* Nu» 1 w^s not iu the baii
L J. Did you hear him U'licn hettpokc to
^ '^ council chatnlser ?
Not ihflt 1 do recnemlior.
^^. You say you liciard Mr.
k to thtni ID be quiet and
frkynt, N(\ not there, but it was
l"% own house,
HoUituay. Waa there any ii[>roar
Purkifux S*u my lord, but I will tell
yniha^ was K mulntude of peo))!*^ thcr^', and
i pv9^ deal t»r ndild<- Uke to be, and Mr.
^iicWfefatid<^r«Hl the j«*opk' to ^f:^ their bu-
aaoK mth all mod^'sty ; and 1 think tbi«re
ivnir.waaafi gremi a numbvr of iieojdw that
4ft!r earned tlirmvelves more civ illy than they
M, I iUd not hear, by the oath 1 ha\ c taken,
«%aastgry pammate word or any thijig ot that
kiad.
Hecorder* They wet^ all of a sidetbeiL
]\lr. Stanhope, Were you by when Wf*
Hiitcbioson waa sent^vith fir, Gri^ry ? What
was hcseoi fur?
^ir 1\ Parkynt. I can't tcU that, hilt f did
lieur they did go.
Mr.Shmfwpt. Was he sent to demand, or
desire tl»e mace ?
8ir T, Farkym. Indeed Ican^t tdl how i
waa.
L. C* X He can tell nothing ?
RcconUr. I believe ho was worse frtght*
ed than alderman Parker, he lia^t forgot all.
Mr. Pollejfm, Swear Mr, John Thinn; •
[Which was done.] Pray, Sir, were you (ire*
Kcnt on MicbafhnaH-duy, at the election of th#t|
mayor of Notiino'baml*
Tkimt, My Ion I, I hear there are seireral
gentlemen indicted for a riot at that time, I hope
i &liall receive no prejudice for giving my m^
formation here.
L.C.J, What do you mean, Mr. Thinn?
Thinn* BIy lord, I uuder^tanil by some per*
sons, that there is tike to be im in formation i^
brought against me, if I give my evidence a
here.
L. C. J. Prithee, man, we know nothing at
all of the evidence or informatioQ ; if you will
evidence, you may.
3Ir. PoiUjftn* Pray, ^r, were you present
when thi» matter was trao^ctin;; Jn Mivhael-
maa-dny?
Thinn* I happened to be in tbe country all
that time, about a bustneas bt'tween Mr. Edge
and myself; we me oopanncr« in an estate,
and we were then upon a partition; and oq\
Micliaelnms-day 1 went to church, and beiiig^\
at church, and sc^^jog a great deal of company
in the chancel, 1 went to sec tljc usual cere-*|
mony of chootiing the mayor, and so ibrth. I
was there tlien, and while 1 was there in the <
church, I itaid tb<!rti near an hoar, t believe
after prayer was done, and there was an ex* -
peciation of the old mayor, and others, toi
meet together upon the ekction, but nobody
came : but al last there was some message
came dotro, I know not by whom, nor from ^
whom, but the general vog'uewas, that it came-'
from I^lr. Wild the old mayor, and tliai ho had
sent down to desire the company to come doua
to the hull, but I cannot say who bmoghl the-4
message ; and upon this, all the com pan v went (
from the church, up to the hall, and 1 went
with alderman Edge, who was the person I
had business with ; we went through a great ''•
room, the town-hall, and then there is a little |
room within, I think they call the couneiU
cliamber, and a great table within a rail, asf
this may be ; and I remenibcr I sat down be*
hind the alderman : I could olifterve nothing (
heat among them at aJI, iior tlie least wt>rd
that 1 observed, of jangling. There was a bo«H
upon the table, which thiiv said was the new^
charier, but it w^ not read ; but Mr. £dge wAa 1
olfered to read hi<d own name, to shew that he |
had power to act in it ; but he did not know
how far he might act by that^ aad therefore he
79] STATB TRIALS* 36 Chablbs II. l68i.— TVto/ oj Wm. S$ckev^U,
was proeeediDgto twetr the officer aooordiog
to the old one.
Mr. Polltxftm. Was ibore any cry, or any
noise there ?
Tkinn. I do not know that I beard any one
say any harsh or ill word ; tbera was not so
much as a shout.
L. C, J. Did you hear any hubbub, or tu-
Tkinu, No, my lord, not in the room where
we were.
X. C J. Did you in any other room P
2%imu I cannot tell that, there was a gveat
many people about the window.
Mr. Holi, Did the old mayor, Wild, sUy
there white they elected Mr. Greaves?
Thinn. lie staid there some of the time.
Mr. Siamhepe. Was he thei-e all the while ?
Thinn. 1 camiot say but that some of the al-
dermea staid all the time, and some of them
iTiFe their TOtes for Mr. Greav es. '
Mr. Lovell. What did EAge do ?
JTunn. He took the. poll, and to the best of
my romembranoe, alderman Parker, that is
«Be of the aldbrmen that has been here, gaFe
his vote for Mr. Edge.
Mr. Loveii. Did the mayor, Wild, stay till
the poll was cast up ?
X. C. J. Poll, we hear nothing of a poll ;
Who gave you authority to poll ?
Mr. Lovell. He that was in the new charter
appointed mayor, yet sui<^to see the election,
and then went awa^r.
Mr. Foliexftn. 8ir, did you hear any pro-
clamation made in the council-chamber ?
Thinn. No, Sir ; I came from church with
Mr. Edge, and the rest of the gentlemen.
X. C. J. Were you there when Greaves was
sworn P
Thinn. Truly, my lord, I don't remember
ihat I was.
X. C. J, I desire to know by what authority
Mr. Edge swore him : let him k>ok upon tlie
statute of Praemunire, and consider wiih him-
self about it a htUe.
Just. IViihins. As far as 1 find, this gentle-
man was not much concerned, and did not mind
what was done.
ThinJi. No truly, Sir, not I, much.
Mr. Ilolt. Did Mr. Sacheverell go with you
or stay behind.
Thmn, We went all together.
Mr. Blencow, Pray su ear Mr. Pole. [Which
Fas done.]
Mr. Stanhope. Pray, 8ir, were you in the
eoupt^l-dbamber at Nottingham on Michael-
roas-day was twelve-month P Pray tell us what
happened there.
roU. I have lived in Nottingham about IS
years. I used to go and see tJie uiiiyor and
other ofiicirs swufo : upon this day 1 n as at
church, and they went to prayers, and after
prayers were coded, 1 think there was Mr.
Gregory and Mr. Hutohinaon, as I toke it, sent
by soittB to dcsicc.the mayor, that was Wikl, to
) W ichMwh, that they micht pitNMBd to «a
tMSQsriiiMr ^ ^ aU dhiKtoi:; bul wbai
answer was returned I cannot say :
that, as I take it, there was ddermi
aind alderman Rippon dU come and
the company, and said the mayor dcs
to come down, lor they had the nevi
and he was to have their advice how t
upon it. While they sat there, I wa]
the church to the town -hall; and ;
while the company from church car
town-hall : when they were there, tl
desired serjcaut Bigland's advice hov
ceed upon the new charter ; says he
desire my advice as recorder or as
and I tlkink as to that he gave no anst
like question he put to Mr. Edge;
Edge referred it to seijcaut Bii|;land'
and I think it was a very good one.
while, some of the company that u
the electors of mayors and sheritFs,
the clothing, cried, let us go to the |
I think Air. Edge began to take the
there was several that did vote, but
the general cry of those that were ii
the new and to the old charters. 1^
were in the new charter gave their v
not for Greaves ; 1 do not remember
did when the poll was taking.
X. C. J. Who directed the poll, prs
Pole. I tliink it was some that wer
old charter; but I think it was the gc
sire to go to the poll.
L,C.J. Who took the poU?
Pole, Mr. Edge took if.
Mr. HoU, Did the old mayor pro
electiou, or the new mayor, or uo P
Pole, No, 1 do not *know he pro
but it was put to him.
Mr. Stanhope. A\ as he present at :
tion f^-Pole. Vos, he was.
Mr, Stanhope. Was he|iresent \iltc
was taken P
Pole. Yes, he was.
Mr. Stanhope. Did he contradict it
Pole. I cannot say he did contradi<
X. C. J. How many of these elect
}-ou been at betbre.^
Pole. I was not by at the nominati
I could not be, Ilot they excluded all
that had votes.
X- C /. How came you to be so I
be there at this tiuie ?
Pule, I went of my own accord ;
desired by auy lx)dy, any more now tl
years, but used as much as 1 could to e
to be at the swearing of them ; lor
eluded all people usually out of the
where the election used to be, if they
of the clothing.
Mr. Stanhope. Who gave the oat
person elected usually P
Pole. The coroner used to give tL
his oath.
Mr. J^avell, Who used to take tb
other electipus?
Pole, I canout say who took it, iis
were exdudod the obanodi ; but it
reputed that Mr. Edge used to take it
STATE TRIALS^ 3G Charles IL 1684.— tfwef qthenjor a Jlkt. [82
^Vlkocame to fclcb \ott from
Blemtom.
f
Bok* f lliiflk ildertnan Ripjmu and aUter-
wam Pirier dtd desire ihem to come to the
\gmm4aa\h ^m\ I think Malio was tSwrc^ bat i
^ CMmot tell ^\\%l he said.
^H Mr B/rftCi>9L\ Wbo was at church then ?
^H L. C J, Prmy, were you dm red to come ?
^KP«^. No, 1 wa» not.
^B JL C /. Wat Mr, 8adieverell ?
^r I^( N*>, ! do noi know that he was ?
Mf . Stutihajfc, When the^e g-entlcmcn came,
did they beh:ive themst^lres civilly f
/>ofc. V'e»; I «*w nothing hui civil hcha-
Htm : there wis a great concourse f>f people^
IbdifT^ most of the well-wishera to tlie otd
•ftl sew diarter were there tliat day.
L. C. J. Can you say you did not hear a
|Rit iltal of ooiiie and hubhuh ?
JMi. I eaODot say so. tior truly can I say
L C. /. Do you heliere you did or noi ?
B^ But I believe I mit^ht hear aotne
mm\ but 1 was in the council -chamber , not
ial^bilL
JiflL HUtam&f^ Was sir Tli omits Parky n&
♦•wf— i*o/c. Vea, he was.
i.C /. Wis Mr. Thiuu thet^ ?
1^ Vc«« 1 think 1 sat next lum i^heii
fSuftamef^m church: 1 did desire to §ee
fhe fr^iOBcdiii^ of ibeday, and 1 tlitnk f dined
wHk iha camjiaoy, and went in with the first.
LCJ* Did you see any thing ubont a
BqU. Vfs, I think 1 did nfeaomething about
It.C. J* Wby then prithee tell lue, as near
at tto caa fiie«, what thee didst see about
Afe. Whea ibey went out. Wild and his
y, themijm was full of company ; and,
t, or wbtiever it was that
t the mace behind him ;
fur the mace, 1 think
^ntlemen of the council
Mid would not let him
, who was that one gen-
"%tiif e, 1 believe it tnigbt
ultatprit.
tMlatakc I
iflt aasoi
^ QUI ii iixmi
LC.J, A-
J>^ 1.
kit rfHrJ
t ( jiriihec, wilt thou tell me that
ti, no «hutitm^, nor nnist^, nor hubbub ?
ihU* Id the C'jiuitil chamlicr, i am satiiii-
i Mb ta myself, I heard none and believe
kj none; I will not say there was not
Itks ha1i» for I was not there,
Joti. Hollmray. Did ytju hear any one cry,
P«^ ibeve was at tliat time a dts*
.^ ,.-.ijk8.
lJL C. J* Ay, tell mc now who tliai dispute
amoQf the gownmen
,fak, I 1 is
|L C. J. \4iu aay well, name ma some of
p0k. V cannot, iiidee>d, ray lord, name any
particula]- person.
Just UoUowuy, Did yon liear Mt, 8ache-
Tcrell speak any thing about ihe books?
Pole, I think I did, I believe it was one uf
the ctothiog.
L. C. J, Prithee, canst thee not gue» who
that man of the clothing waa?
Pofr. ff 1 do guess, my lord, I cannot speak
positively.
X, C'/. Prithee, do not sav so, 1 know ihce
canst if thou wilt, come, recollect thy meraorj'.
Pole^ My lord, I would remember it, and
^X the person^ if I could, but i canuoL
I. C, J. Hut tts near as thee canst guess, I
know thee hast a goo<l gnef» with thee.
Pole. Indeed, my lord, I cannot.
Mr. Powit, Did you observe that he did any
ways concern himself about the election, 3Ir*
Hacheveivll I mean 7
L. C. J. What did he do there, Mr* I*owi« ?
he WBS present there.
Rti£ord£r, Was not he the head of the oW'
charter parly ?
Pole, The oh! charter people t(wk it that the
surrender had t>een 6urre[Kitiously obtained, and
1 think he might say they had a good right to
insist upon the old charter.
L, C. X Who said so ? Mr. SacheTCrell ?
Pole, i believe J did hear hiua say soraeihing
to that purposf, b(Tt I cannot positively say
what ; 1 dare not undertake to say what par*
ticular persons f^pokc that day.
RecortUr, Was not hrfor reading of the new
charter, upon your oath ?
Pole, I cannot tell whether he was or no.
Recorder. Did he not bid the people be
quiet?
Pole. I cannot say I heard any such thing.
Mr. Ward, Did not you hear him say any
thing to the mayor when he came into the
council -house?
Pole. No, I did not.
5Ir. Ward. Did not you hear the Serjeant
make proclamation for all people to depart that -
had no business there ? — Pole. 1 did not.
L. C, X What say vou, Reynohls, did you
make proclamation in the council house by the
mayor's direction?
Rei/noids. Yes, I did.
L. C. J. And yet you said you staid there all
the liiue.
Mr. Blencow. WhcD the shout was in the
hall, pray, where was Mr. Sacheverell ?
Pote. He was in the council-chamber : tha
occasion of ihe shout to be in the hall was this»
when the poll was taken, and the majurity ap*
peared to be for Greaves, Mr, Kutchinsoa wa«
seut to acr|uaint tha mayor with It, and to de<
him to come, and be prefeot at the swearing of
him,
X. C. J. Who sent him ?
Pole. Mr. Uutchittson and they can till
themselves.
X, C. X But who do you say sent him ?
PoU* 1 ctii*t tell particulany, they caa beel
tdl.
G
83] STA'IS TIUALS, 36 Cuablss H. iSSi^TUU of Wm, tMunrM,
L, C. /. But who told yoa so ? or did way
body tell Tou so?
. Poie, I was told so by sereral persons that
fi'(ere sent
I. C. J. Prithee, who told thee ?
Pole, I believe I may have heard it from
hiimelf, that he was sent.
X. C. J. Who did he tdl you sent him ?
Fote. He did not tell me who particiilarly.
Mr. Fareu'cU, My lord, I desire to ask Eepr-
nolds this question ; Who was there besides
that heard you nmke the prodamatiou ?
tUynoldt. The mayor was there.
Just. Hollanay. They made such a noise,
that perhaps e?ery body could not hear it.
Mr. Pollexfen, Pray swear Mr. Slater.
[Which was done.]
Mr. Holt, Were you in the council-cham-
ber on Bf ichaelmas-day was twelTemonth in
Nottingham P
Slater. Yes, 1 was.
Mr. Holt, Pray, give me an account of
. \f bat, passed there, and what you observed.
Slater, I was at St. Mary's Church with them,
and came down from the cb urch with them to the
council- house ; and when they came, they went
in(o the council-house to the mayor that was
then, alderman Wild, and there they went and
staid some small time : and then the mayor and
aldermen came out, and came to the common-
ly and staid a pretty considerable time ; and
wsa came Mr. Hutchinson and Mr. Gregory
to his worship, aqd told him, and it please your
f^orahip, the council desires yon to come and
hear Mr. Greaves sworn mayor; and at that
word, the mayor replied to them, that he would
oome to them presently, if they should have
done there : so presently after some cried out
A Greaves mayor, a Greaves mayor ; and al-
derman Rippon and others bid them hold their
tongues, or it should be worse for them ; but still
they cried, A Greaves, a Groaves.
i. C. J. Where was that?
SliUer, In th^ common-hall.
Mr. Pollexfen, What the bnrgesscs cryed
out so, did they ?
^ater. The people in the hall.
. Recorder, Was not you one of the shoutcrs?
Slater. No, I did not shout.
L. C. J. Were you one of the clothinsr, une
of the council of the town ?
Slater, No, my lord, I was not.
. £. C. J. What business had you there ?
Slater. I went to see, as others did.
Just. WUkint. What trade are you?
Stater. 1 am a taylor.
Just Wit hint. Do you use to go to church ?
Slater, Yes, Sir.
L, C, J, You say the people did shout, A
Greaves mayor; did vou hear them among
that shout, cry. No New Charter, No New
Charter?
Slater, I cannot say any thing of that.
L. C. J. Canst thee say thou didst not hear
any such shout ?
Slater. For my part, I can safelv say I
heard nothing of it. Then I see aldemuui
Wild take a book in his hand, as to tak
oath, and then there was a shout, A Gra
mayor ; and alderman Paiker went oflTi
the bench, and saidi A Riot, a Riot.
' Mr, PoUejtfen. Swetr Ro^rRyley. [W
was done.]
Mr. Holt. Pray, were vou at the electii
a new qiayor at Mich|UMmas-day was tv
month ?
<Ry'^« I was at the first nomination, in
was the 14th of August
Mr. Holt. Who was named then ?
Hi/ley. Mr. Greaves.
Mr. Holt, Is thet the custom of the tm
nominate him before ?
R^Im, Yes, it is.
Mr. HolL Were yon there on Michael
dey?
Hyley, Upon Michaelmas-day I wasi
nioued in upoa the clothing, and then
new mayor went to the old mayor,* and «i
there a long time to go with him to |
church; at last theoU mayor would n
but staid waiting for « new charter ; a
went to church and heard the prayen
^m the church we went to the ball aoooi
to custom; and there was the new n
there, Mr. Greaves, and he was sworn n
there.
L, C.J. Who swore him?
Rylof, Alderman Edge.
L. C. J, Did you ever know him sir
mi^or before P
Just. Hollomay, Did you ever knc
inayor sworn betorein the absence of tb
mayor?
hyley, 1 have known many, I have hei
the council these c^liteen years.
L, C. J, You say you he^e been o
council these eighteen years ?
^y^fy- Yes, I have so. Sir-
L, C, J, And have you been present
tlic new mayor has been sworn ?
Ryley, Yes,! have.
L, C. J. And do you. know that the
mayor was. sworn when, the old mayoi
i not there?
Kyley. I have known many sworn, I
but I caun(»t tell whether .1 ever knew bu
the neiv niavor was sworn before the old no
L.V. J. I'hcn when Edge gave Greav^
oath, %«-as tht: old mayor there '^
Ryley, He was iu tlie room when h<
chosen.
L. C. J, Was he there when he was s
or when he was going to be sBom ?
Rylcy, They would not abide tlie plao
went awav.
L. C, J. But, prithee friend, don't
thou art upou thy oath ; was Wild, th
inayor there, when they gave Greave
oath?
Ryley. I douH know exactly the nai
when he went away, but he was there,
thev voted him.
L C. J. Thou art a prevancsting shi
fellow.
m
STATE THfAIA 36CiiAliLBS IK iSs^.^and others, far a liiof, [88
■M^ fli^seiribr til fU«» tii^ci tnil couatry.
li. C /. *8|Mftk l)i0 nutlii ntaiit Aot^ nrn^f er
i^» vvtiB^i *l>*t ^^ tit tri^tit 11 wa^^ I donH
L C i H'li lie IhCTT fHicn Greav« was
%%. I cma^t Ids tiiAl, if it fXea&e y6%k\' bo-
Vr FkiwmeU^ My Um)^ I deiti^to aslc tiirn
Bat Hm SHdi wmiH Answer ft (lues-
«!. jfaUtewy. t Mb stiks
ymy e»fM'i€%n^ lis.
* Ftrrr^ft. BIj Jui^j, 1 tlt^iic to ask bbu
p« the lM*ttavt«tir of the cotupany atl the
inj iv«rc there in thi^ cQuncU- house ; wis
ay tomrtisDce Uirre f
LCJ I Bile jfnu ngoi
I nmir? — R^/rv. I he«4n1 i>oci«.
ic y^no ngain. was thcn^ no pro*
b. FarvMr/i. Dtd~yo*ii tJike notice of Hey-
ild^. If# iAii^ltt le Uiere, for oufbt I
ttr. Tmrmtiln Do y«ti ItcKeve he could
■lift t ^nidHMisoiLf ft0<J you not hear it i*
%l|. 9i» I item*! IffKtw hr»w he shouM,
■E iWUiw. Call ThoiTiHii .^luxio^v mt\
^m^W^m. l|Areyotiiiiiyniot« witnesses,
Vf . fi4i^ai U> l^iftVc iiiniis tny 1oni| if
IJML W«r« ym of a
' V^tf A» inwn fC Nottttighaiiii MidiHf Itnfts-
" ri»i U<lvi«- mr»Trth ?
Iliiin. 1 1^ chureh« a<» the cus-
^Wl lAfcf , I' cx;>€)cl«tl to go to
iC J. Ay, |irith4*e ftpi^al: otit «s if thou wast
I ; ycrti woahj Utii'e shouted thcn^ f
WImo ^e wrr* al O'^ -'Unt* h, vre
s^ <»yectiiig to have and
if llic ootiUMnV. f> the
; lA t 1 cu!5toni.
; &lr. Y«U1la^ >4 the 4^leetion
-diay VjUb t tih j pray
I hav tSKRir* wr*" »••' f
kdUr 1 T ad It came to
;rd the Section P
Tna«'tK|i»estJoii^
.Jii^ It .
»et
J iPi^ - ! . 1 ii »ot« there,
„ I; Dt you kooir auy thing of this
I Inmw liirfv WM ft (air election
JKmiAm. Wa« fct ixicfiMe and qma?
ifA». YW,llKf»inilidtliilfitittnt'«; at aii
1^1 r. St an hope. Was there no »houtinj; ?
Mntkm. N<> shootluj^ that 1 hcnnl
Mr. Halt. You were in the vmcv room,
wepetiot jon?
Musloti , I was in the coiincH-houiie,
Mr. lloU. Were yoti k^ot in the hall?
Miixl*mf, I wuB in the IiaH, ak ive MtiitouL
X. C. J. Dill you hear nothing^ ofiTjing out,
A Greaves, a Greavci? *
AfuTiow. N*v I can't remember that,
L. C. J. Wtre you iheni? wben Great cs wa»l
sworn ? J
Muxtow, Yes, f was, wlien AWertnaOj
Greares was sworn.
£- C J. Was you there when the maee wai ^
taken away ?
Muxlow. ^fo, my lord, 1 wtts not.
1" C, J. Who swore the mayor ?
Jlfwjr/wr, One ofthecoroiic 1*13,
X. C, X Was the oUI mayor there when ih* \
new mayor was sworn T
Mnxlom. I can't tell dint.
JoBt. Withtm, None of them can tellthaCiJ
or will tetl it.
3Ir. PoUexftn. Swear Burroughs and Par-
ker. ' [Which was done.J^
Mr. Lovtil. What is your uame ?
IiHrroiu^K$, Mv name is Burroug-hs.
Mr. Lcvell. Were you present on Michael*]
mas'day at the electiou of a mayor of Not-
tin«fham ? .
Bnrtvughi, I wau one of them that were ftil
thii hu!l ; when I was in iho hall^ there camii T
a gpeiitlenmn, one of the eotinc:)l -house, and ac-
quainted Mr. Wild, the present mayor, thalj
the biir^esaes had elected Mr. Greaves mayor, .
and tfie coroners were proceeding to swear 1
him, and asked him to come ana hii'nr hitii [
sworn ; nnd he said he could not come pre-
sentlVt they must wail a-while: he was a«ke(l j
liow lone, he lold tliem by and Uy ; w ilh that, i
»omeb*iffy cried out, A Ureftves, A GrcavcS|j
and there W}\s a great shout.
L. C. J. Where was that shout ?
BuTTuughs. lu the hall ; but then the gfeti-
tlemen were tn the council-houEc.
-Mr. hlrncoK!. Where was Mr. SachevereUj
then ?
MurroMghi. He was in the council- house.
L,C,J, Well said: now yoa have made]
this ltd low trwear through a wall, that your *
other witnesses could not hear tbrouf^h.
Prithee, friend, were not tbou one of thai
clotliin^ ?
Burfovgh*, No, my lord, but I was a bur- J
gpeia.
X. C. J, What did you do there ?
Burroughs. There were other burgesses ttOt j
of the dothiug betsides nie. ^ J
Mr, Holt. Come then, our next witoefts it]
John Parker,
£. C, J. Reynolds, did you see this felltyw]
there, was he one of tlje shouters ? I
JUynoldi, Yes, and he dmi^ up hi« hat ibuftt 1
L.Cr J. Were you one of the shouteis ?
BurrmteJu. I cannot my I did not shout.
X. C. X Old you fiing^ up your bat ?
87} STATE TRIALS, S6 Chabibs II. 1684.— Tria/ &f Wm. SadmertU,
Burrougha. No, I did not.
L. C.J. Did you do it over vonr bead ?
Burroughs. It may be I niigBt.
Just. HoUoway. Tf ere you by , when Greaves
was sH'orn mayor P
Burroughs. No, I was not,
BIr. Holf. Well, what say you to this matter,
Parker?
Parker. Gcmg by the street, I met ibe new
charter coming down, Reynolds brought it ;
so I turned bade SLgsim to the mayor, and after
he had received it, pray, says he, go up and
tell Mr. Sacheverell, and some of them, that
thev win come np to the church, and if they
will but stav there a- while, we will come to
them : so I, and another, and two or three
more, went up to the church, and told them
the mayor would come and wait upon them,
and bniig the new charter ; upon that Mr.
Sacheverell looked upon his watcb, and staid a
considerable while, and lookcxl again upon
his watcb, and I heard him say he had staid
above an liour, and presentlv a message came
from the mayor, desiriug them to come down
to the Towu-hallto wait upon the mayor.
Mr. Stanhope. Who did the messenger direct
his 8j»ceeli to ?
Parktr. I suppose it might be to alderman
Kdge and scgcaut Bigland. Says Mr. Sache-
verell, we will ffo down, and see what they
;uiy to us : so tfiey went down, and we went
with them ; they got many of them into the
council-house, but [ could not ; so I stood in
the hail, and waited all the while the gentle-
men were in the council- house ; then there
came out alderman Hijppon,the mayor, and Bflr.
Mulin, and by and by ailer them, alderman
Parker, out of the council- bouse, and sat down
upon the bench ; Mr. Malin had not his mace,
and he was ankcd where it was, and they said
they had it in the council- house: so, said they,
you had best have u care of your sUilf ; no,
said he, before they take my staff, I will
break it over tlieir pales ; and by and by they
proceeded to swear Wild mayor, aud they uerc
about to give him some of the oaths, I suppose
of allegiance and supreinacy j but before he
said any thing, tliciv came two of the council-
house, and iold him, they had elected JTr.
Greaves mayor, :md desired the mayor, and
the rest, that they would please to coino and
hear thim swear the mayor ; he said, he could
not come ; but come, coinc, says he, we will
go o;j, jin-1 upon this they proceeded to give
Mr. A. Merman Wild the oath, and when they
had gone half way in tlic- onlli, somebcMly
came and iTic<l out, they woi*e sweating Mr.
Givaves mayor, and upon that both parties
gave a shout, and one cried, A Greaves ! A
Greaves ! and anotlicr nicd, A Wi'ul ! A Wild !
And upon this, alderma:i Nippon had the new
charter hy him, ami he took it out ; look you,
said he, we do nothing hut by authority, we
have his ma jrsi.y''i order, and the broad- seal,
and Uicreupon sat ilown again ; but somebody
told him it was commonly reported they were
deprivetl of their privileges ; he said, it was
not so, if it was, he would forfeit his hi
his estate : upon that, they proceeded 1
Mr. Wild ; the burgesses gave aoothei
but not so big as the other ; with that a)
Parker went out, audi think, cried,
a not. They sat a little longer, and
desired to send tor alderman Parker a*
said they, he won't come, and so the
Sered a little upou the bench, and ^
own the street, and I went down the I
them, and in Street- Gate, they i
alderman Parker ; and he was cominf
hall again, and he turned back to the i
and 1 went to the council -hottse ; but
hear nothing, only that afVerwards
mayor's tht y called the gentlemen, an
them according to the new charter.
I.. C. J. Were you one of the electc
Parker. No, not I ; I was not cono
anv side.
Mr. Pollexfen. Were any of the dei
Mr. Sacheverell or Mr. Gregory at th
inginthe hall?
Parker. Not that I know of.
Mr. Farewell. He says, my lord,
mayor sent to Mr. Sacheverell and
come from church.
L. C. J. How do you know the ma
to Mr. Sacheverell?
Parker. My loi*d, they directed thei
to the persons that were there, 1 cann
say to whom in particular.
L. C. J. It has been sworn they
their speeclito alderman Edge and
Bigland.
Parker. They told it when Mr. Sai
was present, and so he went down wit!
31r. Pollexfen. But this appears by
dcnce, that the Old Corporation is by tm
mayor and burgesses, but we know 4h
aldermen since, and so it is according
as it is laid in the information ; but
put in their new charter. [Which v
and read.]
Mr. Pollexfen. Is there not a prov
that the mayor should not act till he hi
L. C. J. Admit it be so, what then
Mr. Pollexfen. Then it follows that
be not guilty.
L.C.J. How so?
Mr. Pollexfen. It is plain, my lord,
man should not take upon him the
mayor till he has taken the oaths ; tl
pose they take it tluit the old charter
by this there is no new mayor till !
tually sworn ; then all these things b<
before lie was sworn, it cannot be that
such an assembly as was laid in I
maiion.
L. C. J. You mistake yourselves s
proclamation was afler the swc^ariog.
Mr. rollesfvn. No, no, my lord, ]
mistaken in that.
L. C. J. Reynolds, Was not the p
tion madeaf^er he was sworn ?
Retinoids. 1 cannot tell, my lord.
L. C. J. M'here b the mayor, Wil
STATE TRIALS, 36 Charles U. l6Si.—aHd otker$./of a Riot,
[90
jtm 9i«orn befoire you gave
prtK-lftmntion to depart or no F
certainly tell, but I lliiok the
^as made in the council-
iMwasbt^yrel wa« sworn ; the prO'
■ mAcntmfds was allfer 1 was swum,
ln^. Where WHS the proclamation
as r«rorti f-> Wild. In the halL
Dill Mr. SachcTcrt'U continoe there
!, wiy loni, this I think
Icnce : in the countiU
' the greater jiart
i\ then ihcy uent
^ ; und they setit
mayor, when h*
-i was electcsil, and |
111 to swear him, but he
iras dune, lie wns not
ipon thiDi, there wss the siiout of
Greavi^ ! A Greaves I All this
k, U tore he was sworn*
The major htiuself says he was
I was just come into the
; iues9en|ter came in ; hut I told
Bid Diake no ucw election without
K^/M«iicn of the new charter.
i as to the htjsine&s of
, itarinBtion will not hohl
, because then he wns not mayor.
" (Iocs not allect the mayor but
'"csnot.
; . mv 1^1^, »« this infor-
kid^ be :>uys ne was mayor, nod
wmtbly, ami it wa^t hi- Id before
liopT* ^ere done j but this
by this vcfy new ehatier
!lure he can act, and this
In^^ OS tliey call it, anil
mace was before he was
[brmaiion supposes all llie
he was nmyor.
I think it does upprar by Wild's
bt be was not sw oi n when procla-
~ io the I'oiincil chamber; nm!
but one prorhunation made
ule Jilicr, and ibat \mi%
siihniission, that doc^
m wnc in thecouiicil-cham-
id not hear the proclamn-
ifbrmaxion is laid, that they
the proclamation ; tht^rcfoic
it to \f»ur liuikliip and ti.e j(iry.
ell then, g<>ntlrnirii of ihcjiirVi
»eld |nntr» b"t i^'f •[ r^ti.in is very
tsan ! by >lr.
Cicncnil , which
ilar ntuue^ uvts iiy same ui' the wit-
'orn to be present when the occasion
ariaep
. Pray, Jtiy lord, giirc m^ jour
is ooc of the defeudanlK cayy, he
t** prove be was not Uier« ; it is
Is, upon your oatii, ifwi you
Mr
R'j/noids. Yes. I did.
Just. Withem* Mr. Mayor, did you see him
there ?
Wi/d. Yes, I saw him in the hall.
Just^ WtthtTU, Was he busy in the ball ?
Reynoidt. Yes, he was shaking his bat, and
sboutmg.
L. C. J. Well, now where is your witness ?
Mr. PoUesfen. Swear Mr. plaits. [Which
^vasdonc] *W hat say you, was 3Ir, Turpin
there f
F{mtt, He was iu the hall that day, but not
above a quarter of an hour,
L. i\ J. You were thtre, it seemv, pray had
you a vole there ?
FiuU%. I went to speak with ^tr. lurpin
3lr. Polk jj en, >Vus lie in the halt when the
mayor came into the hall I*
i'lniti. I never saw him there while the
mayor was there.
Sir, Poltexfen, I pray swear Mr* Holt.
[Which was done] Prav was Mr, Barker
either in the hall, or in tbe council-chamber
that day.
Holt. No, I was at work with him that day
from six of the clock in the morn* oji;^ till eight ct
night.
L.C. J. And he was not out all the time ?
Uok, No, be was not.
h. C J. Well, have you done, (gentlemen ?
Sue ft ever eli. My lord, here is Mr. Serjeant
Bi^land, 1 deMrtiheioay he examined.
L. CJ, Ay, with alfmy heart, Hwearhim.
[Which wijs done J
Mr. PaUfrjhi. Mr, Serj. Big^hmd, I think
you were down ut the elect iun of this mayor
upon Michaelmas was twelve- month ; will you
be plcu >chI to tell the court and the jury wliat
vias do lit* ihun :'
8erj. Btfiltittii. I will ijive you as short an
account as I can. I was in my house when the
ma) or and aldermen, sent to me to desire me
to Jive my attentlance : they sent the two she-
rills to me, and I did attend, and staid an hour
ortwo, and w**nt to church, according to the
iisiin!roMrse ; and wbcji we had been there &
while, alderman Itippon camt* to uie, and dc*
Kired me that 1 wmihl tz^t t^nvn with them to
the hail ; accordingly I did |^o down, and there
was Mr. Wild and several aldermen sat there; \
so then they prorcjcdcd to that that was done
towards an election,
Mr. htvttf, Piay, Sir, how was their car-
riagfe during the linic you was there ?
Serj. Bi^iaud, I sat then iu the council-
chamber, 1 think I sat neict the mayor, jinfl
Mr. Edj;e, I think, wa^ next to nne, and I saw
nothing of disorder ai that time, that I took
notice of
Mr. Loveil. Was there any proclamation
made for people to depart f
Nerj, Higinnd. Upon the oath that I have
taken, t do not remember it.
L. C. J. Pray did the mayor ask youi* advice
about any thiujSf ?
Serj. Higinnd. Yes, ray lonl, be did ; and I
fiaidto hint, in what ca(»acttyf i^ir, do you denre
SI] STATE THULS, 36 Cuablbs II. \6^4.^W0i of IVm
my counsel^ as recorder, or how F and m be
«ud no more to that : hut he s*«d lh«re whs u
new chiuter, but whether he desired mc to read
It or no, 1 cantiot telL
In. C. X Was it opened ?
8erj. Bigland, Some pnuiof it was opened.
L, C, J. Upon your oath, did yoii hear Mr.
Sacheveretl apeak* to the mayor r
$eij. Bigiand. No, my iofd, I do not re-
memher any such thin^.
L, C* X Pray let me otk you, you hafe
beeni before tliis, at etcdiaiia i»f mayors of this
towo?
8er). Bigtand. I wok deputy- recorder in my
lord marquiii ol* Dorchester^s time ; as soon as
be was deadf 1 was chosen recorder^ and then 1
wasat one election at another day, when they
do Qominatef which is before Michaelmas.
Mi\ Holt^ Pray Sir, was there any distur-
bance f — Serj. Bighnd. None that i saw.
I^C.J. Waa ihefie any shouting that you
li«ard?
Setj. Bigiand. I was not in the hall, my
lard ; In the council *ch amber there was none,
J oat. Holhm€y. Did you hear any body cry
A Groav^es* A Greavea ?
Sen. Btgiand, 1 heanl a noise in the bail,
but wtiat it was particularly, I cannot lay.
Mr. HqU. How long did you stay in the
eouncil-ehamber ?
Set}. Bigiand, I believe 1 ^id as long as
moti m the company was there.
L. C. X Did you stay while Greai^es was
aworn P
Serj. higland* My lord, 1 believe I was
there Ihenr
L. C. X Pray what authority had yon to
iwear Greaves f
8er). Bigiand, All that I know of it waa, he
was iiominated at August accortlingf to f!u<»lom.
L. C. X But whul occiiJ»ion bad you tw be
present tbtn, and what authority bad you to
awear him ? You are a gentleman of the long
robe, and t.bould have known bett^-r.
Serj. Btgiiind. Truly% niy lonl, he was cho-
aen by those that had a right to choujw in Au-
gust before.
L. C J. But what authority had you to
awear him ? Why did aot y^H send for 'some -
i body out of the streel to awear him ? I reckon
it to be worse in tbose people that understand
tbe law, than in others, that they should be pre-
saot at aurh things, and not advise people bet-
ler ; here is aerfeaut Bigiand and Mr. £dge
have mighty squeamish stomachs as to the read
' intf'of the charter, and nice questions i Do vou
aik me as liecorder,or aa counsel f B«t tHey
would have done welt to adviae peapla to maJ-
die with thdr own bumoess; let my brother
take that along with him.
Mr. Polkxftn. Pray awear Mr. Edge,
[Which was done,]
I^dge. My lord, I did not swear him.
Just. Hollawa^. Prav who took the poll t
Edgf. 1 took the poll.
JuM. Witkim* Pray did you ever know a
jikiyorswora when the old laayor was not by f
Edgt. IdtdnHtbem so. Mr.
and the «th«r gentlemen would have gotten i
to poll In tbe v«3rtrv in Ibe ah*teT)^t' Af
may Off but I told item I woi^d not hare i
such thing done ; atid whmi the old may
went out of the council- chambei% they wo
have had me read the oath. Hatrl I ^ gentlef
1 will not swear him but in the nmyor^s
sencc.
Mr. Ward. Did not Mr BaehevereH
tbeni all the day ?
Edge, He was among ns all the day.
Mr. Ward, Did he ]>ernse the charter f
Zdgr, I can't tell that
X. C. X They that once heofin first to I
the water, seldom catch the fisli.
Mr. Huickinmn, My lord* I desire t
ask Mr. Edge one question, whether I wai
sent to the mayor, and did not go myself?
Edge. Upon the best of my knowledge I <
not send you to the mayor.
L. C- X I thought, IMr. Hutchinwjn, ^
had been a man of greater quality than to
of his errands. Have you douti, geiilleaieni
Mr, H<iit. Yes, my lord.
L. C. X Then, gentlemen, as I said^
an information against several jteri
shall have the nameK of them deliierr^d I
and it is for a hot, an unlawful
Nottingham ; and though there are (
that have been «[ioken of, and two piteeais j
evidence, yet 1 must tell you, fUtitlbll
that does afTect these persons b onlylbllfiH
does^ relate to Midiae Unas- day, aoi i^
other part, about the cross, is not tufEij^iMd
this information ; and persons that wt»n ftnt ftt
tbe cross, but that were not put at tlie ball^ ar*
notooncemed in this information : Uiit alK il
appears, were concerned, except one, whieb i^
Humphry Barker ; now tlioiigh lie waa f ~
piof .lud jumping upon the croaa, jet not h
preseut upon Michael mas< day, be is not t
this information.
And now, gentlemen, hecaiiae tbe ettu
hekl something long, I shall be tbe
Only, for example fiake, there ane some
that oughf to be taken notice of. The right
the charters, whether it be the new, or the
charter tliat is to prevail in {wmi of law, is i
a question : that is not to be deienntnoil in f
cau«e one way or another, for th«y baw • ]
thodical way to have that point de
and should not have proceeded in the %vay tb
went ; and it is pretty well known they
proceeded in that way too, for we knon" '
are 8dre Facias^s and Quo IVarrani(>*a^
ing between them. They would bave^
well to have pursued the"^ legal course
for I hope, we shall never live to tsee thai
prevail in England which is callcfl club-la^
Let the right be ne^'t;r so mocb on their
they ought to take a rightful way to ob
and not by any unlawful means.
Another thing, gentlemen, is this ; tbey i
sist u]>on tt, that tney could not he guilty \
this information, because the mayor waa
sworn. It is plain they axe guilty of »
STATE TRIALS* 36Chaelks U
mamt till lyuythor wii« cKosen. i
jbrty %< liie olfiohan«r;
L iicil ttire»r bitu bv any f>r«((^n€4'
1^ w of a %ery grtAt fiiull,
lie i'.- ■ . "^
tlit*^ iie^deil not to li&%e ^nthen^
itito an aiMriiibly about i\m tuatU^- ;
thev preteod to be a niaj or had
cbosen niayor^ they htid j» n*-
have brought bim iuU> thts
migUl have come, anti of i ight
A Mandanms in admit mid
the office, atid fio lie nm^t liave
jor^ unless they had shewed
the coQtrary.
^ Uicrp b no richt but has a law-
tbercfufv it had been much better
'gentiemeti, if they liave a ri^bt, to
» m a rigbtful way to obtain that
!• beisig premised, 1 must tell ^'ou, it
I BltHtunale, concern it whom tt will,
Iraoge to me, that men in matters of
wlMfe they have notliing to do,
mCry gentlemen, that never came
mm an? election before, that they
■M to busy themselves, and' head
they huve nothing to do ; nay,
ol'precmnt, for it wiu
M it Wis only to satisfy their ciirio*
tteoMiiner of the election, the^ hod
f llio«i and patient and quiet, it bad
' \^i but to be there, and to de-
pl» to be sworn, and calling^ people to
9 and h^ini^ the mobile* tlial
any roan, let him be as great
Wt^i tlMi|pioater the itiaa«tlie greater
tad the gretter bin Muence, the
and the grester onght to
^Mtl6in«n» to have those other fier-
there, Mr. HntcihinBon iind Mr.
ley must be dnnandinir of the
and swear ; pray what have
tiiere?
> you see the consequences
to that heig-bt in the midst
;€Dd|iapulmia town of NottinirliaiTi,
^boAMging up hats, and liollow-
d mftkinyf ail the distur-
m in tlie woHd ; n«y, in*
lay observe by one of tlie
igi tb« very senl wn?: hrnk«n
ehart^. Wiy, l< nt
that whereas i'.. a
. that d<»th ImIiii-; lo the
: ravislied it iiuuVi and
Ln«i take it ;; " iher he
inigo;ii isine«8,
tbr^f-
ami
1684.— 4mi otheri^for a RioL [ftt
ifioeiing of all sorts of people^ and all sorts of
disorders mu«t be committed ui»der pretaoce oIt
this autliDnty ; which is setting up a kind of
coitimonweailh, 1 can call it no better ; and
\im\ it been such a general assembly, not with
an ml«nt for doing such one parijcitlar pur-
pose* it bad been high-treason. For if people
once think to obtain tUa rights they pretend to
in a mutinous manner, thai in the general ia
high-tnfttson, or at least so near, I witl bssuto
you it is pretty hard to distinguish betweea
them.
Now. gentlemen, as lo the evidetioe, I must
tcU you tbe witnesses do swear» that all these
pereous wen; present^ abettors, and assistants
in this matter ; the man that beaded tbe party
hail no manner of concern aoiotig them t and
surely^ at^er you have heard all tliis matter, if
ever there was a riot proved in this world, tbti
riot is plainly proved upon every one of tbes»
met! excc(»t Barker,
But whtreas they pretend on the other side,
and they would have you to beUeve that tbe
sheriff was not sherifrtill he was swom^ torelj
he was sheriff till another wai twom: And if
you allow bim to be sberilf, then they ought
not to take his mace from him^ if he was the
sheriff tie /flc^o, in possession of the ensign of
this olfice, that is enough ; lor the ri^ht t9 not
to be determined in sudi a way as this.
The next thing they pretend to is this, a-lack-
a-day, there was no proclamation made till after
he was sworn mayor by the new charter, when
before he came first into the ooaiaKVD-oouDcil»
the hubbub was there begun, and tbe mayor
told them, gentlemen, you have notliing here
lo do, pray go a!»out your business ; and when
Mr. Saclievcrell pr^^ssed him, he ordered pro-
clamation for all persons that had nothing to
do, to be ifooe. Then afterwards he comes
into the hall, there is sworn in the hall, and
take9 his oath according to tbe new charter,
and stdl after proelamatioti made; then the
sain«f persons oonttoue still in the same plaoe^
so that there is no obedience frivcn either to the
old nuthorit^' or the new ; and instead of going
away upon the proclamation, thfit made thetn
tbe more riolenl ; for you find by Mr. Edge^
the l»*t wit»ie?is, that oVen to the time of the
swearing, Mr,Sacheverell eontinuedvery earn-
est lo have himsworn^ though Mr. Sacheverelt
was shewti the new charter, and tbey^eould
not even by the old one proceed to swear hi A
in the absence of tbe old mayor; and tbe old
mayor wns alisent.
There are indeed several genlleBien that are
witnesses for the defsndants, that Itappened to
be there at that time ; there is sir Tlx*mas Par-
ky ns^ and be being aaked whether he beard
any noise at all, why tndy he forgot that there
was ever a word spokt^n ; and urmigh other
persons, even «,i»mft of their own witnesses, did
hear a i lie heard Done, bat all was a
wonde- r thing ; so that the witBesses
♦^"* lilt y liir iiif^«tlve>< cJiiled, interfere atnoug
Ives, some of tlipm say tliey did hear a
,.^.^. and shouting, yet $ach is the unhappioesc
95] STATE TRIALS, 36 Charles il. l684.— TWo/ of Wm. SgekevereU,
of floroe people, that they caaoot bear if they
ba?e no mind to it. Then here is Mr. Thinn,
a gentleman that came by accident, and be
can give no good account of the matter : some
noise be did hear, but be came but as a stranger,
and was not concerned one way or other, as
be says.
You have beard several other witnesses, that
give an account there was a noise, but they
cannot tell whether the charter was produced,
or not produced ; and they cannot tell one word
that was said of A Greaves, or No New Charter :
And.one particular man, I have forgot bis name,
be could not by any means remember any
thing of the matter; though be was there
all the while, he could not tell what A|r. 8ache*
verell said, he did hear him, but not what he
said.
This, gentlemen, is the substance of the evi-
dence: 1 can only say this to you, yon most
believe all the witnesses for the king actuaUy
pei^iired, unless you believe their evidence;
and for what others say, that they did not hear
such and such things, yet all these other peo-
ple did hear ; and thoogh the witnesses for tlie
defendants did not nee, the others did see ; and
you must find these men without any evidence
that does appear, to be guilty of wilful perjury,
or else eveiy person that you have had m
cbaige, except Humphrey Barker, is guilty
of the not wnereof they have been informed
against.
Then the jury withdrew, and the court broke
up, and a private verdict being delivered in the
night, tlie next morning it was given in
court, where thev found twenty of the tw
one defendants that were in the issue, ^
of the offence and misdemeanour in the i
raat\on ; an<] the other defendant, Hum|
Barker, Not Guilty.
In Trinity-Term following, the Defenc
who bad been found Guilty, were sente
as follows :
William Sacheverell, fined - ' 500 M
George Gregory 300
Charles Hutchinson - - . . soo
John Greaves 20 N<
William Gi-eaves 20 Mi
Samuel Richards 20
Robert Green 20
Francis Salmon 5 Nc
Arthur Riccards ----- 20 Mi
Ralph Bennct - 20 N<
JobnSberwm lOO Mi
William Wilson lOO
Samuel Smith ^0 Nc
Thomas Trigg - - - - * SO Mi
Richard Smith
John Hoe 20 N<
'William Smith ----- 20
Joseph Turpiu ..... 100 Mi
Nathaniel C;hamel .... 100
Joseph Astlin 5
And that the several defendanU do givi
curity for their good behaviour for a twi
month.
The Case of the Corporation of Nottingham, as it was sta
by the late William Sacheverell, of Barton, esq.
THE town of Nottingham hath always
dauned to have been a bm-ough by prescri|>-
tion. And it cannot well be doubted that it
ba^ been so ; for that it appears by Dooms-
day-book, in the time of King William Ist,
that the burgesfics of Nottingham then had
divers houses and parcels of land in Nottingham ;
and the burgesses of tliat town were 173 in
number in the time of Edward the Confessor.
That town batli also always claimed to have
been a corporation by prescnption. And it is
hard to believe it otherwise ; because no char-
ter of its first incorporating could yet be found ;
Kod the charters granted to the burgesses of
that town by kmg Henry 2nd, and king John,
do imply them as a body corporate before
Yet it appears by the charter of king Edward
the Ist, that there was no mayor of that town
before his reign ; for that he iben was pleased
to grant the burgesses of that town a privilege,
that they then after should choose a mayor
out of themselves annually ; and some of their
former charters, as well as that, shew that for
I time before they had only bailifb of that
From Edward the Ist's time,
4
mayor and bailifik tlie town continoed tifl H
6ih*B time, who was pleased to make
county, and grant them slieriffs insteM
bailiff)!, and the privilege of choosing ou
themselves seven aldermen, and one of t!
annually to be mayor ; and that the alder
(as long as they so continued) shoiUd be ,
tioes of the peace within that town ;
nioreover, that the burgesses of the to«n
Nottingham should for ever be a body
porate i»v the name of mayor and burgei
Nor hatfi anv charter since, nor any bye-
that can be beard of, given the aldermen
more power than tliey had by that cbai
which was then nothing more tnan every I
gess of that town had except being justice
the peace, and wearing gowns andlioods.
that the aldermen, though of late they 1
taken upon them to sit as members of the os
cilofthat town, can neither prescribe to!
|>ower, because there were no aldermen in '
town before king Henry 6th's days ; nor
they claim to be of the council of that t
by force of any charter, for no charter «(
in Henry 6th^s tinae, or since, hath girtt
them any soch authority, nor did iktej ^
STATE TRIALS, 36 Ch ARtBS II, iSMj^md others Jot m RwL [98
hy wirUut of wiy byf -hvr of
rtbevrvdmT • "^ ''* -.^ UfF,
lUrf^bl ofaiUitig ai (liefe
iMfe MB ikokxl in tb^oHinii nben
Hiv alilffTHicfli icid«««d in kinir Jam^'t* time
Ina, l^oti^ they liad 50 rif^t so to do^ to
tobfftB cli«tKt to bm put of (ke councit, untt
i» flBvaiMlB in Ibit loivii** concertifl, ami to
mmtk to &r a|MJci ilie burgrsaes, without
^■r««i<oln, •* • 'i<1 to Have a n|4:lit in
of the cori>o«iition-
'■■r.(U^ and «-ti<xi!-
Mil B«iiW
) f so Im' 111! hi
iBI^Birlo til'
(li^- ^it*'l» ti. ,i( fr
• •clflnij, tt
^MMlilMlo r
nFTiofti.
theaiiler-
«% «iy |ir»> .
,vhich lh€
Ml if tbe \
1 lite eJ^amitia-
flmtifi^mm%%*
\ to the jtuiges
yimmiky
e end they
MM Wo
d bv Uie
m^iMBi'^] mi* 1'
*.Ud-
fawlMili^rmlior
iherr
fesr"
... ^ --,1-
^l^Mluit
■ -i- - ■ ■
■Uduw, .
I L^t ot liie
gjm iMcbiui
d to that
HhPNr, lai-i
Mieetto he
I^^Bil vC t
•s m con-
^K^ nd r*-ii
^ ihcir
[j^ i^«o«l* *»i^^
ihcv
■■MifllMd COCivr ttk
i and
f the
^^Hf BH imI c^vcmrDr
lU "1' ......
^^^Mvlbe iiia_\ «ir tinil
Ihv
PHfavl Of f»» «•"'" ■» ♦
••'■*■■
idMrlff
Ivrllii* tfff>^
, vutU tlitt
I beiui^ ut
.! 1 i»i thf iiftid
' lie ttuvn luTidMf
, itiJ
■ iiirr*
^triiiJ*)t)-ijn
» sMl «mfviiii|pt^ was vrhoU)' \tu\i aaiiie,
t mni hmfgrmt 1 oi
' IM<ilPFI «C ik^
r, »l^
majntaiii, sustain iw itb tlietr bodies, tbcir i
aod their chattels u» their powt " "^"* *'^»'tu t^^
let neither for love nor di'«>jid, xrd vC
mny toan, but maiutain the la^vi^, ^ i-tunts,
and franchises of that town : and divert bnr-
g«ifies of that towTi being informetl^ about lb©
be^DiUDg of Easter-terin la^t, that the Enavov
ana sume of the aldermen of that town had a
dedgn to surrender the charters of that ciir|K]i*
ration, it was acaroe credited by any of the
bui^iessei, thai the mayor or almost any of tho
aldenuea would consent to do a things so di-
rectly ijotitrary to their hurgess-oatb. Yet
dirers bureeises of the said touu considering^
they had t&en the 8aid oath for |ireservin^ the
npiU of the town, thouifht it hut convenient,
tor the ]>reveDiion of the ill consequences wbick
they well knew must befall that town if their
charters should he dehvered up, and a new
charter taken without the privity^ consent^ or
bearing of the bui^esses of that town, to order
four caveats to be entered ; and accord iii|fly ia
Kaster-term ordered two to be entered at the
lord eh an cell or 's, uod two at the attomey-j^-
neral's. One uf which caveats in each place
was ng-nii * '1^ any new charter to the
town of «i without the privity, con*
sent, or L;, „ -. ihe burgesses oFthat ti>wu j
the other ugaiiist the acceptinjsr of any aur-
render of any charier of that town, without the
hke privity, consent, and hearing. Which said
caveatii were entered accord in gly*
yind so the matter rested till the !23th of
July last I hut upon that day the mayor called
a council without giviDg notice what the bu-
siness would l>e^ unless it wa^ tu those of bis
own party and confederacy. But that he had
thnu^'hts* of surrendering when he came to thd
liall, will be pretty manifest from what be did
after the question was put to the vote, and the
poll taken: there appeared at the ball Ibo
mayor and tive aldermen, and two and twenty
of tne couneilf and Mr. VVilliam Topfady (who
the laat yc^r^ by order of 3Ir. Ger^as Kippon, the
then mayor, i^as sworn m as an aldermaiiftboueh
Mr, Hherwin, who stood in com|)etition with Mr.
Toidady, had near twice as many roles; upon
which Mr. Sherwin brought bis Mandamus,
and the cause h yet undecided iu the court of
King*s- bench). After some busiuesff iu the
hall was di^jputcbed the mayor caused a question
to be put for surrendering of ihe ciiarters of
that t«»wn ; anil thonsfh it was declared by some
of the councd, That the aldermen bad uo n|fht
V} votrf therein, vet the mayor caused a poll to
be trtkeii, ahd afimiited them and Mr. Tonlady
^ nave only that Mr Alderman Edge
d his vote, and g^are it neither way.
1 He rvA vote<l as followetii, viz.
For surrendering the Charter.
Gcr^'an Wild, mayor, Christopher IJall, a!*-
derman, John Furkor, ubb^nuan, Gervas Riji*
pon, ftldennan, V^ illiam Toplady, ttlilermaWfl
(ir f'licto. Wdliam I^Iabbot, Edward M abbot,
Wilhiuu Petty, Rolwri Wortlcy, Hu^rh V^aU
ker, Wiliiitn/ Wool house, J otm Whitby ^Tht^
mas Lee. Jobu fowio.
H
99} STATE TRIALS, 36 CuARLSd II. l6Si^Triai of Wm. Sachmrett, [100
AsraiuBt surreDderin&r the Charter.
William (irenves, al(li:Tmaii, John Greaves,
Sajiiud Uichanfs, corrnuTs, Robert Green,
sheriir, Huntiutrdon Eyre, Roger Ryley, Tho-
mas Walkfr, liichanf Smith, Francis Sahnon,
Ralph B«*Qnet, John Sherwin, Samuel Smith,
Thomas Trig, William Smith.
So that if the aldermen should be admitted
to havu a right to vote in the council, yet here
uras no majority for the surrender. But on the
contrary, the aldermen having no colour of
right, either by pi-eHcription, or charter, or
othcruise, for the nmsons aforesaid, to be of the
council ; it is plain, there was only the mayor
and uihc of the council for the surrender, and
thirteen of the council against it ; and conse-
quently that the greiiter part of -the council
Toted against the surrender. Nor can it be
imagined that the council of that corporation
(being neither settle<l by prescription, nor vest-
ed in by charter, but only brought in by con-
sent and choice of all the burgesses, only for
the better managery of the revenui^ of the cor-
poration, and dispatch of some otlivr ordinary
alfairs, and nut intrusted with many rights of
thot town,) can pretend to any power of sur-
rendering the charters and liberties of that
town, more than any small numlier of bur-
gasses. So that how this surrender of fourteen
men against the vote of the greater number of
the council, ajid will of almost all the buigesses,
should be good in law, is not yet well underbtood.
And if the putting of the town-seal to an instru-
ment without the consent of the body corpo-
rate, should be said to be sufficient in law to
give away the lands and rights of any l)ody
corpoiate,* then any thief that can but steal the
cM>r{)onit ion -seal, will have it in his power,
though he be no member of the cor|Mjrution, tu
ffive up the lands nnil liberties thereof ; w hioh
mdeetl would be a ^trange piece of law and jus-
tice to be owned in any nation that pi-etends
to sense and honesty. \et Mr. Mayor, all this
notwithstanding, did, as soon as the said vote
was over, pull out of his pnrktd an instinmcnt
in writing, purporting a surrender of their
charters, and caused the town-seal to l)o affixed
thereto without any further vote. The draught
of the instrument, as it is commonly said, was
first made at London, and t hence *tr.msmitted
to an honourable person in >iottin:;-h;m)shire,
and by his order conveyed to Mr. Mayor. Jiut
this report, if it were not for one thing, which
it is l»elieved will be uroved if there be occasion,
might seem not well groun<lcd, becaiist;, as it
Afterwards will appear, tliis surrvuder was not
tliougbt sufficient, and ko another ^^as sealed;
which yet one of the aldermen would havo to
h* the very same, word for word, with lliat
which wastirst sent up %<.*aletl to i^ontlou ; as if
twice sealing would make that ciil-ctual \ihieh
was not so by l)cing once s(t:ded. Hut it is
likely he had not heard what is n)nniuinly re-
porte<l, and {lerhaps will be |»ni\«.'d v«hen*^tii»e
serves, that the fir«t iuslrnment for suiTeuder-
ing that it as sc»ltd> was drawn so as to make
a surrender, by the right honourable the eari of
Uallifax and sir Iieoline Jenkins.
After the saiil vole touching the intended
suiTender was over, many of the burgesses of
Nottingham, considering their oath, and that
there were many customs and privileges in re-
ference to trade, which the burgesses of tb*
corporation held only by custom and urescrip-
tion ; and that as some of the lands wbich that
corporatbn held was by grant from some of
his majesty ^s royal pix'tlet^essors, so most of
their town-lands, (which ai-e of great annual
value) were given by pri\ate persons ; thought
tit to ask advice of counsel in several |>oint8.
The first question pro|>osed to counsel was.
Whether if the charters were surrendered, and
a new one taken, tliiil new grant wouhl not pre-
serve the lands to the corporation. To whidi
counsel replied, That if the charters of any
bcKly corporate were lawfully suri-eudered, thea
the cor|K)ration that held by such charters wm
dissolved; and that if they bad auv lands which
had been given to that corporation, the lieicft
of those that <rave thohC lands would, as soonu
such surrender was irompleted, be entitled tA
the lands, »nd rfc<»\er the same. And ther
said. Those laiuls which had been given to sum
corporation by any of his majesty's predeces-
sors, his majesty uiight, if he so pleased, grant
thtjn again urthc corporation; but no'n
charter of his could, as they conceived, eiv«
tlie corporation any title to those lands which
had been given by private persons, or enable
the cor{)oi-atiun to keep them from the heiim
of those that gave them, in case such surren*
der should be. And so, they say, it was re-
solved by thejndt^'i's when the'monastcrieswen
surreudtrL-d, or dissolietl; and that tlierefon
a special act of parliament was advised to b^
iitaih*, and accordint^ly was made, to vest thoM
lands ill the king, there being no otlier way t»
liindLTtliem IVoni goiii'; to tlic heirs oftliose
that gave thein, \« hen By surrender they had
dissolved those corp<.' rations.
The second <{iH>st ion pniposed was. Whether^
if the mayor uud luirgi'sses.of a corporaiioi^
claim any right of common by custom or pre* ,
scription upon other men's fands, as is in ths>
ca.se of Sialfoid, Derh}', Coventry, and maiiy- :
other cor|M)rationb, they can surremler tbcir .,
charters, und \et, by any new charter to be e^
taiued from his majesty, or by any mesm^ ,.'
preserve their ns^ht of common. To which i ■
was an&wei-ed. That if the mayors and bui^geiHft J
of any corporation chiim nucIi common, udA' ,
afterwanU make such surremler, and so da*
solve the boily corporate, their prescriptitm ftt ,''
common is destroyed ; and though his majes^ '^
should please to incorporate tlieiu anew, yal ^
I their title to couimon will, as they conceive, be .^
I totally lost.
The third queslion was, Whetlier the t
of Nottingbum, being one of the ancientest c
IKirations of England, and free of tolls in nu^ -^
places, shouhl have the samejprivilegeif tfaq^*j*
surrendered their charters. To which it WM'l
answered, Tliat ii ihe town of KotiiughaiK'.i^
STATE TRIALS, Sfi Chabiks Ih l6U.^md ciheri.Jor a Riot. f 102
fh^ff i*li4t|i*i ^^
^ hhuW ^
i..> i,. vv charter.
uM ■
iSr;:
fifa cor-
ilie inajor
the sur-
itim>, tlie
n luch it
I Init that
■y tiir
^f^l
und rxnniinrU w itU
n'1 the (jurfjt'ssts
' wan by srverul
>cf of ft^'verat
t y ot'
' 11 ted was
WiiJi, yHyctx of Natttngham.
^ f»r rNotttiii:rhmii,
mr til - that you antj
0 httve, vvjthout
: (Kim iit^^l^^ am)
'« to
rinrl
till* •■: lU CilUSC
i<» au m-
ier ! and
1 ring'
■ Ik' to
cuii lu u^ ami
:i of ihe iH>rjH»<
»ur-
' !^ii.ii an
rtf wbat
nntl fhnt
> Mi thaft rnrpaimtinii ;
* lt*r» witJ r-etiuinly be l/»5t, if yon make such
•ftiiiTeiictrr fts ymi Imic ii^Ti-*tl to. W^
*^ lio llHTeHiPe lieneljy tferlure onr dliii^en^]
* from those your pn^ ' and tbaf 1
* wti ortf|i»r im iim* sli , or h:irf
i Q n.-,..x*..-i *L .* ....^_. - ;. ,,, ^j ,y chiutcr, j
* lilt. t»f till* mrjMira-
' tiiiu Ei»a«lc tritlii^r Kyi
* y**o, or iiny cfir|)oratinn, or [
* other jieisou r - eviT ; andifiat ^
I * ivt' vrill by u\\ bwiul wa^-sund menns o|H)os^
* and hiuder the suiTondcrins" or vaciiling: of
* any oftbo dmrters, riirhts, Ubcriie?;, or pri- 1
* vihj^ps oftliis corporation ; and that in ci^s^J
* you occa>.ion Iht- sinTcnd(*r of any of ibechor-
* lers, rights, ril>ertit'!«T or ])nvileges of this cor- ,
1 ,.,,^,i;.,„ we almll expect from you such :
1 all the law will nWnvr ns.'
. ... turfire^ses were also advised to ordcVj
sind accordingly d'nl order cavciUs in the nauiL'S^ !
of some psj*ticolarburi'e«ses, on l>cli&lfofthi?nj7
nvhcs and most of the hurgesst'S of dip town^ j
to he entered at the lord chancellor's, the lor J
privy -sears and in the signet'Offiee, a^ins^l
sinrrendering of any ot' the charters of thai [
town without the privity t consent, and hearing'
of the fiaid burgesses, and aipinst passini^ of j
any new charter to that town \% itliout hke privity^ J
con-wnt, and heario"^. And the burgesses havf j{
had an aKConnt from their a^ent at London,
that he had entered such caveats at the lord
chaneellfM''s and in the oiBi-es of the lord Con- !
way and sir Leoline Jenk) n**, it being com-
monly reported that ihe bud privy -seal ha^J
deUvered up the privy -seal to the said air Lew^
line.
The burgesses were further adviacil to peti-
tion the lord chaacellor to l>e heard before unV •
Burrender of their chartr rs shoiitd be accepreJ, I
or any new charter to that town shoidd past
the brcjad «^eal ; and accordinji^ly a Petition waa ,
draw n, iuu\ M^^iied by alxtve three hundred sind
sixty biir^csst s, and a copy thereof fairly en*
i^t»8$e4l, uiiti the names of the burgesses that 1
had subscribed, was sent and prestented to tb^ ]
lord chanwUor at Bath on Thursday the icnih
of this inMant August. Which Petition wa» |
in thene words toHowing", viz.
To the ri'4ht hoiiourable the Lor^l Hijirh Chan*
ceUorof Kti^hnd : Th«' hundde Pli iTtoH ]
of tin? limsfes^es of the Town of Noihnij*
ham, whop^e name^ are hereunto subscrib-
ed, on behalf of thetrisetve^ and uaost
the Bnrtjtsses of thai Town,
* Most humbly sheweib :
'That the town of NortinjL,^ham l»emfi[^a bo- '
' riJUtifh by pres*crintion, and an ancieni eor|io-
* ration ; and the hur^jesses of that t<»wn (who
* are a body corporate bv the nanieot inriyorand
* burrjrNses) hir i ^ liberties^ ;
* ni^liis^ 11 ml 1 «bich th<
* pmit and cfM iiom hii* ju 1
* i>iR royaJ pre* I id uniuy ck
* litk^riii'^ iftj ^, .. uhich \\n\ ...'.
jvtion; and divers j»ci
^^1 1- to that corporation of *d
103] STATE TRIALS. S6 Chaeles II. l68i.— Tm/ offVm. SachetertU. [IM
c ▼ery fjeki auiiual value : The present mayor,
< with three or four of the aldermen, awl nine
« other burgesses of that coqMiration, haveUe-
« dared theydesij^ to take a nc-w charter, and
c have taken upon them, without the consent of
< your petitioners, and most of the burgesses of
* that town, to agrree to the surrender of the
< charters of that corporation ; and have taken
* the town- seal, and afiixed it to an instrument,
< designing thereby to mekc an actual and ab-
< solute surrender of all the said charters ;
« which if they have power to eflfect, it will (as
« your petitioners are advised) not only dissolve
< the corporation, deprive your petitioners and
< other burgesses of that town of many rights,
« liberties, and prinle;^ which they held by
< custom and prescription, cause all the landv
< given to that corporation to revert to the heirs
« of the donors, and disinherit your petitioners
< and other burgesses of that town of all the
« said lands, liberties, and privileges, which
< both they and their predecessors, as burgesses
< of that town, have inherited, and ought to
« enjoy, but also subject your petitioner and
« their freeholds against their will to sucli ser-
* vices, damages, and great inconveniences, as
< may be brought upon them by the contri-
< Tances of the nid mayor and aldermen, in case
* they can obtain a new charter to pass the
« broad-teal without tlie priiity, consent, or
< bearing of jrour petitioners.
* Your petitioners therefore humUy pray
< your lonbhip to take into consideration the
* aforesaid mtschieft, damages, and inconveni-
< ences that are like to behill your petitionexs
< and other burgesses of that town, in case
* such surrender should be made and accepted,
* and a new charter taken by the said mayor
* and aldermen : And that your lordship would
< please before such surrender be accepted, or
' any new charter for that town be |iassed the
* broad-seal, to grant yotir petitioners a day of
■ hearing, and to order thereupon as shall be
' agreeable to equity and justice
* And your petitioners shall ever pray, &c.*
The Petition being delivered as aforesaid, and
Mr.Blayor having Men acquainted in manner
aforesaid, by the generality of the burgesses,
that they neither had consented, nor should
consent to a surrender of any of the charters,
rights, or liberties of the town, and the bur-
gessev having been advised by council that no
iBStniment tor makinga surrender of the char-
ters to the earl of Hallifax and air Leoline
Jenkyns couldheefTectual in law : it wasliODcd
tliat there would not have liecn any fVirtner
Progress in the business, at least before the
ur^^eases were heard u|M>n their caveats or pc*
titibns. And it was taken for granted, that no
new instrument in onler to any siirreiidcr
could he made and sealed without calling toge-
ther the council of that town ; because, by cae«
torn of that town, the town-seal hath always
used to be kept under the custody of thrae
locks and keys, and not taken out but in
cil ; and those three keys kept by three i
persons, for better preventin*; of any in
use of the seal. But contrary to the buigeflmP
expectation, and a<cainst all ancient usage, Mr.
Ala} or (havinsr, as he said, received mItm
from London that the instrument he had teal
up fur surrenderiug the charters was not tuA-
cient) did on Saturday the 12th of August ra-
^uire of the senior o6roner to deUver liini kb
ey ; which the coroner refusing to do, (onlcnL
according to the custom of the town, a oouodl
wais called, and should onler such ddivery) il
seems Mr. Mayor found another way to oaOM
by the seal, if that be true which was Hgn^fioi
in the public prints that came down to Not-
tingham on the 19th of August, viz. Tfafll
upon the l-Uh of August a surrender of N**
tingham charters was made to hia uiajeatji
And there is one tiling which hath happenai
since, which gives a shrewd Ught what lln
Mayor did on that 13th of August, withoal ai
much as summoning a coundT ; for the petty
who by Mr. Mayor's command, as beiaich, da!
that day force open the lock to which the o»-
roners**key bebnged, hath since confeHed ^
iHct. So that now if it shouM hereafler ap-
pear to be true, as those prints seem to intinMlai
than any instrnment for surrendering of Mali
tingham charters to his mi^esty, was pn irntaj
to hLs majesty on the 14th of 'August, it w9
scarce be a question, by what means, or boa
lawfuHy Mr. Mayor came by the seal, or hoa
valid such surrender is like to be.
^ This is the true case of the hurgesaea ai
Nottingham, who are ready to make good evai]
matter of fact, as herein stated, whenetai
there shall be occasion ; and doubt not but ti
prove it, if they may either be beard apM
their petition or caveats ; and howeveri|ueiliai
not but by the assistance of the courts of jaa^
tice they shall still preserve their rigfata, M^
withstanding all these endeavours that hafi
been used to give up Uieir chartera and S«
berties.
STATr T1?IAI3, 56ChablesII. iGi^.—ProtecJitign, S^e.
[105
P Pfocecfrrags against Sir Thomas Armstrong,** in the Iving's-
" Beoch, upon an Outlawry, for High Treason : 36 Charles II.
A,D. IG84.
Lr iitfi f%f Jiinr i5Bi> «ir Thomas
ii» tht^ liur of ttic
t "Wi-atrainster, by
i»rp«s» direct eil
[ if ihc Vmtn \*ni nmcU by l4i«r deatli
lirir
""5'
of 5i
?h.«.n, , ... hart
(til _ OH fllt'll
( tfjf OtlT , " I^CCOUttt
" te tile »cotii at Lrydtti, for
«ru«4 an httn ; nruf cjf livered
in gre»l
for jffit to
^^iitcs : for
i.at would
« re*! Kihi,
He wa»s
*' >lon-
lift?,
v^ u bear
ver eiTpy
' rtf ininJ,
r»rehe cs-
. whft saw
' he%*ou]d
H e Ills Ide.
fw when
I, Ire said*
r»lot: he
*r U\^ [if**:
tded will)
tbr tt man
i»e (injte-
lite-
was
and
ifbewrd *nrh
**<i ^K liltU«JJUlUlL*<I iu lilUl ■
'^v^l^Micfl fcftypi* the oounoi
tilMirf Ml |>Vii hut It
, W Bight hai^c II
«U be aiJii *
I tbftt vs
id In tu'.-., ,. ..... .!,
■if IL»fir«l triKkp oi t^tmnJ'*, tin(i ;f,'j
I^Ar bnr»e tn iH«^kM>L^ Tii^ ro
f Ibr wliirli I
I lb* timr tl
TV 1
, but wh
Wit: {'i*Utt was
Hv' Im» so eii!j V as
»- I tw I nine ih«t Kumseyhml
bun wmmfS not wifry crediMe ;
UmI It the ftftrt T- ' - *
I jP** »ikI tic
Ml ikt ammif tlicm:
r^ itii It m teeori the
ifgtyfcB^Mf, r ^ who
^■•M^^i <iie ffUKfda NO lonsf, kiicw
f'i'KC'bat tHMnm fcithrm so \vi»!I^ that
r ih^
utyto
TWe CiMirt 1u4 u ^ in »
' wmr witli binif y the
writ was on hi5i mQJestv's behalf mored for cm
Tharsdiij hwl by Mr. Aitortiey-GeDeral,
The retUMi of the writ was ix^ by the clerk
of the crown, hy which it appeared be was ia
the cnstndy nf ihc keejier of Newg^ate, by «
could save bim. H« was now in an outlawry :
hut thous^h the stritute was express, that it ao
outlaweif jRTSitn came in at any lime within the
vpai\ iie VVJ4S to hiive a iriiil nrKwhhstamling*
liii, outlawry. It ifas pretendetl iu ausv%er to
thii>, that he not corning^ iri^ hut being taken^
had not a riffht to the benertl of the statute.
But there were several months of the year yet
to run* And since a trial wai a demind
founded on natural justice, he ia^9ted on il.
And when he was broug^ht to the King*$-
bench bar, and asked what be had to say why
sentence shoiild not be execate<l, he cfaimed
the benetit of the statute. Hesaid, he had yet,
when bewastaken,s everal rnomhs to dehberate
upon his eoraing' in : and the seizing on him
before his time was oat, ought not to bar bitn
a rit^ht that the law gave bim. He al&n men-
tioned Halloway, to whom a trial was oiTereil
the former terra. And^ since it was a point of
law, be desired council might be heard to
argue it. JefleritM rejected all this : He said,
the king might either offer a trial or not, as he
saw cause : and he refused to hear council ;
which Unng demunded uj[*on a point of jaw^
the denyin**: it wjis thou^nt a Tcry impudent
piece of injustice. And when Artnstrong in-
iiiBted, that he asked nothing but the law, Jef-
ienea in hi^ brutal way said, be should bare if
to the full ; and so onlered bis execution n tthin
*ix days. And the law was executed on liim
with the utmt)«t rigor: for he was carried to
Tylium in a sdetlge, and was quartered, and hia
i|uarters were srt up. His carriage^ during hi«
im prison I uent and at his death, was fur beyond
wfiai <M>uId have *)eeii imagined. He turned
himself whoTly to the though, s of God, and
of another state ; and was praying continually.
He rejoiced, that he was brought to die m
Kurh a manner. He said, it was scarce pos-
sible for him to have been awakened into a due
sense of his 81 ns by any other methoil. Hia
i 't> and his resentments were then so ea-
IV conquered, that one who saw bim said to
...., ihtit it was not cany to think it was the
«ame (ktsoo whom he bad known fonnerly.
He received the Sacrament ; »nd ilied in so
good a temper, and with so much quiet in hia
mtnd, and so serene a deportment, that we
have i«carce known in oor tune a more eminent
instance of the grace and mercy of God.
Armstrong in bis last paper domed, that he
ever knew of any design against the king's or
theduke'a life, or was in any plot against tho
warrant from the hoooyrable Sidney Godolphin^
«»q. QHc of lib tiiajesty's principal 8eCT«uri^ j
of SlAte^ wbich Warrant toUoweth in h^c
Siiliiey GodolphiD, es^. of his majrsty^s most
hot). Priry Couacii«9nilprindp&lHt!crt*iary
ofSState.
*• Tlie-^euic in his niajt'sty'tj name to aulbo-
riae and i^iuire y«u lo retvive into your cus-
tody, from on Ixiard his majes^ty's yacht the
107 J STATE TRIALS, 56 Charles II. i eu.^Proceedingi agaifut [ IW
Catherine, captain Da vies ootmnamler, the
person fTf sir Thomas Ani"-*'^"'/ *• -t— i-. |
(br iki^^h-ti'ttujon, anrl hir.
majefity'ji prison uf Nt'u-^ , ;.._ ;.
plcasuft^ be farther kitovro, And fur m» <
thiH slkall he your irarrajil. Giveu uii-!
hand and seal at Whitehall, this lOtb
June I6l^^t4, In the 30th y*3iir <if his m:i
reigii, * S. ^ /
*' To Captain Richardson, K
Majesty *s PrisoD of New^aie,
•* 8ir Thomas Arn^-*—"' " »>• - h- —*-^--,
had in his |>ocketa
one IlayeSf a rnett .. . , ,,_, „.._.„,.,. ,
on wbidi Mr. Hayes is committed to Newgale
for holding correspondence with traitars.
" 14lh. Sir Thomas Armstrong- W9» i
from Newgute to Uie Kingr^s-bench bar, \
being' asked what he could ^ay why ei
should not be awarded ag'ainat himi lie f
outlawtnl and M) attainted upon an indib
of Hi b;:h -Treason, for conspiring' the death 4
the kintj^, Sfc. He said he was l^e^ond f
the time of the outlawry, which the
telling' him they could take no notice <
then desire<l that he mi^ht come to
and that his majesty would Qjant htm tb
favour he had offered to HolJowoy ;
court told him that Wlonffod lo bis n ^
not to tjiem ; then be saia be was within \
statute made b^ ^ E. 6^ c. 11, and deman
his trial, be being trilbin the statute, and de
council to argue the same ; but the court I
of another opinion would aliow him no con
hut made a rule for his execution on ~
next at Tyburn.
** 18th. The same day, also, sir '
Armstrong'^s daughter, pt^titioned the
King's-lw:nch that her father might I
W' rit of i^^n-or allou-ed him to rei erse !
lawry and so come to his trial ; bi|t the!
told tliem this was no proiier place to i
in ; they must go into the coancery for it ; I
there ihcy had been before, and the lord 1
was pleased to deny it.
" 20th, Sir Thomas Armstron^r vnai
upon a sledge with a very nuraeroi:
Tyhurn j where beingf oonie 1 >
nrayed with him, who itecmed ver\ ^,%^n
lie praveil binisflf albO very ferventlvif
done, he delit ereil a piiner to the sherij^
submitted hinkstilf in the sentence ;
lind hanged about half an hour^ he w«
down and quartered according to his i
and hi*] quarters were broug^ht back in
sledge to Newgate^ to be disposed of ■•
m^ajesty shall direct*
" Sir Thomas Armstrong*a quart,
posed of; a forequarter is set on '!
bis head on Westminster, anoihct ^u
sent down to the towu of Stafford, for i
was a Parliament-man. Q,u;ere, bovr^
quarters of the Popish Traitors were i
and quserc^ wbich of these fanatic ptotte
not set iip<
«^ July lit. Came oitl lUe Paper ttitl I
gorenunent. There were no remarks pub-
hsheil on hiii speech, which it was believed the
Court ordered; for they saw how much ground
they bad lost by this Btrelch of law; and how
bttle I hey had i^ained by hu» death. Que pas-
""ge in it was tbc occasion of thcrr ordering no
Msb reflections to be made on it, ^ had been
made on' the other sjteecbes. The king bad
published a story all about the Court, and had
told it lo the foreign minu^ters^ aa the i-eason of
ibis extreme severity agdin.<t Armslrong: he
said« that he was sent over by Cromwell lo
mnnler him bevond sea, and that he was
warned of it, and challenged him on it ; and
that upon his confessing it he had promised
him never to speak of it any more as long as he
hved* Scj the king, counting him now dead
in law, thought he was free from that promise.
Armstrong took this heavily : and in one paper
which 1 saw, writ in his own hand, the resent-
mam upon it were sh artier than 1 thntight
beetme a dying penitent. So, when that w^ls
represented to him^ he changed if: and in the
paper he (fare the shiriif^ he ba<l softened it
tnnrh* But yet he shewed the falshood of
that rpport : tor be never went beyocid sea
but once, sent by the earl of Oxford, and some
other cavaliers, with a cousiderahh; present lo
the king in money, whieb he debvercd \ and
brought buck letters of thanks froui the king
to those wlio made the present. Hut Crom-
well having a hint o^ this clapt him up in
prison, where he was kept almost a year. And
upon the merit of that servioc, he was made a
caj» tJitn of horse soon after tlie I'estoratton.
\\ hen Jt^fTeries came to the king at Windsor
so^m aller thu^ trial, the king took a ring of
^itod value from his finger, and gave it him
lor ihc-se services : the ring upon that was
called his blood stone. The kmg gave hun
one advice, which was somewhat extmordi
nary from a king to a judge ; but it was not
the 4ess necessary to him ; tbe king said, it
was a hot summer, and he was going tbe cir-
cuit, he therefore desired he would not driuk
too much/' Burnet, j77,
«< June lltb \^M, Sir TliOmas Armstrong,
One of the late fanatic plotters, and who stood
outlawed for High-TretLson, having l»een taken
the last week at liCyilen in Hollanti, by oriler
of tlie States, was bionglit iu one of bis mujesty^s
yachts, and committed last nigbl to iireeo-
wieh, and wai l]|is luorning committed to New*
g»le.
TATE TRIALS, 36 Charles II. l684.— 5tr Thomas Armstrong. [l **
^r George Jefferies) What would
Mr. Attomc}' ?
u (Sur Robert Sawyer) Have you
ry there?
-. Yet, Sir, here it is.
I. That which I humbly pray, ray
award of ekecution for the kin^jp
llMfiias ArmstroDg' upon the out-
Fint, we xnust file this return.
- 1 pray it may be filed.
Let it be filed : now, what do you
Attnrney ?
I. My lord, I pray an award o^ cxe-
I the oatlawry.
Anai{^ him upon the outlawry.
'. Thomas Armstrou}^, hold up thy
hich he did.] Thou hust been in-
LMidoD, by tiie name of Thomas
, of LimkIoii, knight, of hij^h-tretiiMn,
w^ against the kinjif's majesty's life,
ovemwcnt : for not aprM*aring' to
Irv that indictment by due process
lel against iliee, ufwu that indict-
rtaadest outlawed, and thereby ut-
he aame hi«;h- treason. What Irast
f for th\se!f, why execution should
ried agunst thee u]
la law?
I agunst thee upon that attainder
}nuirong. My lord, I was beyond
toe of the outlawry ; I beg I may
\ That is not material at all to us ;
hfe« a record of an outlawry against
^■■IrM^. I deaire to be put upon
X We cannot allow any surli thin^ ;
■ttar to do upon this re<*ord Mhrv
•■vara execution, (.'aptain Uichard-
ft are your usual da3-s of exfcution ?
iMiekardwn. Wednesdays and Fn-
fattAors. Here is a statute, my lonl.
1 Wfaai is the matter with that gen-
Uwmirong. Hold your tonnfuc. My
tentroDg <lelivcre<l to the sheriffs at
f his execution, wiicrcin he denies
«fa^yto Cmfnweiitbr tlie sei/.inpr
PhcniD Flanders ; he inveit^lis aifainst
liip.fC his ca<ie at the Rin<r*s-lN;nch
'Mied bis trial ; and does abs(dutely
iMg concerned in any plot ajufainst
lift or for alteration of tlic jfovern-
ri» the nCory of ilie lonl liouanVs
If ha |imfc»k'(l hiiusi^If to tlir in the
Hfeioo, and iu the Coiiuuiniion of
hm England, coneludini; with his
king and these |>04»r nut ions.
tv hath fjcf^n piravd :ts :i •^i^nril
• lord t'hi«^t' justice JifFriAK, to
rfriogoff his iiujfer,and |irrji»m
Mp.'*^ NarcbisuK Luttrell's ^'S.
■fall BeUtion," &c. iu the Co!-
V,Qilbid.
lord, there is a statute made in the 6th year
of Edward the 6tli, which I desire may be
read."
L. C. J. To what purpose would you ha?e
it read, sir Thomas P
Sir T. Armstrong. It piveth the prisoner, or
(lerson outlawed for hig;h -treason, a year's
time to u'versc the outlawry, if he were beyond
sea. I desire it ma^ be read.
L, C. /. Ay, let it be read. Where is it, do
you say ?
Sir T. Armstrong. It is in the 6tli year of
Edward 6.
Mrs. Matthews. Hei-c is a copy of it ■
[Shewing' a paper.]
L. C. J. Why, how now ? We do not use
to have women plead in the Court of King's-
bench ; pray be at quiet, mistress.
Sir T. Ar/mtrong. Pray, hold your tongue.
My lord, I could not come to alledge tliis
before, because I baye been a close prisoner,
and nobody permitted to come at me. I desire
counsel to be assic^ned me at this bar.
L. C. J. For wfiat, sir Thomas ?
Sir T. Armstrong. To argue whether this
outlawry oujrht not to be reversed.
L. C. J. Read the statute he desires.
Att. Gen. Ay, let it be read. Sir Thomas
will not find it to his purpose.
CI. of'Cr. What Chapter is it ?
L. t. J. You may easily find it about out-
lawries for treason.
Cl.ofCr. Reads. * Provided always, and be
* it enacted by the authority aforesaid, That if
* the party '—
Att. uen* Read the clause before that, sir
S:imiirl.
Cf. ofCr. Reads. * And that all process of
* outlawry hereafter to be made and had within
* this realm, against any offenders in treason,
* b(Mn<if resiant or inhabitant out of the limits
* of this reabn, or in any the parts beyond the
* sea, at the time of the outlawry pronounced
< against them, shall lie as g(K)d and effectual
* ia the law, to all intents and purposes, as if
* any such offenders had Ijccu resident and
* dwelling within this realm, at the time of
* such process awarded and ou'tlawry pro-
* no u need.'
L. C. J. Reod on the next paragraph.
CLofCr. I?(ads. ' IH-uvided always, and be
* it enart#*d by the authority aforesaiti, that if
* tin*, party so herer»lUT to Ik.' outlawed, shall
* within <mo year next iiltir tlie said outlawry
* pronounciMl. o! jinljrnieiit jriven U|Min the suid
* outlawry, yiild hlinsi'lfunio the chief justiee
* of Liiglsnid I'ur the time beiii^r^ and offer to
* tnviTse (he iiidietitient ora|)[)(>ul, whoreiipori
* the said omJawry s\\\\\\ |>r pronounced as is
* aforesaid : that then he shall be rteriveil to
* the saitl trn^iT^'. :'nd heiiv^ thereiip<'n found
* not <.'iii!l;. fi\ ihi. \enli»t r-f I'l Mien, hi;
* shall h'.- ele:ir!y ai-<|iiitted and di»-ehartrvd of
* tiiesiuM ouihivvry, and of all priialticsaiid f»r-
* liiiiures hy n :iN«Mi ol" iIm' ^a'n;', ill as larpo
' iivd anii)ie iMariiwr and firm, as though nu
' such outla\> ry had beeu uiade, any thing
Ill] STATE TiUAL3,3b*CHAliLES lU iSS^^Proceedin^B 9gami , [Ul
* herein cobUiMd to the coalrary in any wme
* notwith9UJ9din|>f.'
Jtt. Gtn. Sir Thomas, 1 suppose, now nill
thew he yielded himself to your loril!>hip.
L C. ). This i» the tirsl titne I have veen
sir Thonras.
Sir T. Armiirong, My lorii» I btve been n
piiiofier, &nd tbe yeaj* is not yet out ; 1 now
ftsndei' myself.
Ait. Gen. Before be went oat of Kofi^lanil
lie mig'ht hare rendered] himselfi and b^eu
tried, if be pleojed^.
Sir I\ Armstrong, I am within the benefil
ai tbe statute, t conceive, my lonl.
X, C* X We think otherwise, tir Thomas.
^ir r, Armttrottg, I think, my lord, the sta-
tute is plain in the case.
L, C. /, We arc ol* another opinion than 3 ou
«re ; it doth not reach vour case.
Sir T. Armitrong. "fhe year is not yet out,
and therefore I come time enough now ; and
here 1 am, and desire the benelit of this act,
X. C. J. Sir Thomas, you should have ren*
ikred vouraelf to me*
fkc T. Armitrong* I do it now, my lord, and
the year is not yet out,
L. C, J, We'cannot infce notice of that ; we
bave nothings but the outlawry, and you did not
render yourself according- to that act, but are
brought as a prisoner U^iori^ us nf»w.
^r r. Armstrong, BIy lord, I l>eg I may
hare counsel* to plead i\n me in this cas«.
X. C, X For what reason i^ we ar*j of opi*
Dion it is not a matter of any doubt For you
must not go under the apprebcnwion that we
«leDy you any thin§:tbat i^ ri^ht ; th^'rc is no
^oulc'nor difficulty at ull in theihiug.f
^ * * H ere the prisonif r was denied cou nsel u pon
« point of law, in which case it was never pre-
tended but be is intitled to it/* Former Edition.
f" King and Johnson, Mich* S* Geo. 2^
B. IL The prisoner was allowed to lie within the
benefit of the Proriso, and though he had es-
caped out of prison, and wax retaken in Eng;-
Inttd, was admitted to prove himself bt;yond
lenal the time oif the outlawry; and upon
proving that be was then at Middlebur^li in
Zealand^ his outlawry was reversed, and be
was admitted to a Tnal, and acquitted : Arm-
wKroog*u case was declareil a precedent uiA fit
lo be foUowed.'* Former EdiLian.
This Cane of Johnson is thus reported by
Mr. Justice Foster, Crown Law, 46.
*< Michadmas* a Geo* 2. B. R.
** The Ciiae of RocEa Johnson, cited twice in
Mr. RatclifTe^s Case, was thus:
** The defendant stood outlawed upon ou iu-
dicUnenifor UighTresi&ofi in diminishing; the
current eoiu of the kingdom, and was taken
and committed to Newgate. Being now
brougfbt to the bar by Halteas CornuSf he of-
fered to surrender himself to the chief-jaatioe,
pursuant to the act of the 5th and 6lh E. 6. c.
11, (being within the year) and to trai^ene the
t
Sir T, Artntlrong,
staiule is plain.
X. C. X So .,
have no advantagi
you shall httv
next.
Lin. I
So it h very plain thiit vou «■
antagebv it. Captain RicharddB
IV c a rule for t^xt^cution on Frvfi^
8ir T, Armittong. I would only l^kt; fiuti(#
of one Uiing, my lord, rnay I n^ieak ?
indictment ; alled^in^ that be was ai I
fjcyond the seas at the time the outhm^^ ...
pronounced.
" The chief justice said, we cannot rtfmt h
accept his surrender ; be must be renvi
Newgate ; and let a special entry be in. ^
he olfertfil to surrender, and to traverse the j
dictincnt**
** At another day in the same ^
feudant wa» was a\^;jiin br«»oght to
he tc!ndered a pWu iu p.ircluncui, - mm \
*" was out of the realm on the 8th of Fd
* when the otlllat^fy was pronounced/
pleadcfl over to the trcasou ; which plea
receive<t The attorney -gtufrid pra\ed
bemi^htha>ea copy of liie plea, and i
days time to demur or join issue; which
g^raiUeil ; tlie court declaring thut the attni
might h:ivc joined issue inttanter ; and that j
the trial of such issue the prisoner could
chislUi^^e any of the jury without cause,
pnsoi}er prayed counsel aitd had tour assig
** At another day ia the s^imc term the {
so**"- *' "- '^ ^Hr hnr, hy kave of the
\\ , LJiid pleadf^d the stib
ot ., ... .. ., ,.^..,;^ beyond tica on the 8tbJ
Felirnary, orv Unu*, The aiKkmey-g
ore t€niii repHed, ' I stay he was with
* realm on the Bth of February, and I xn^
' his being then out of the ri^lm * Issa* bi
thus joined^ the court awarded a venire rttflfj
able mttttntlr^ aud ihcsheriM, sitluitcthcc
returntMl a jury. Then the prisoner's
ojYened the |dea and case, and oalleil tb
nesses ; and the attorney -^enend insiiri
the witneases should be* examined api
were so examined ; as likewise were 1
UMses produced on the part of the
" The prboner*s counsel maoug^ed {
tn bts behalf, and three of them were Im
the reply j and the jury* after a short
returned with their verJict, * That the u
' was out of the realm on the 8th of Feu
** Then the prisoner was arraigued on \
indictment, to which be pleaded not g'u|^
and the attorney joined issue, and prayc
venirt returnable the first return of the 1
term \ which the court awarded \ and ihn {
soner was remanded to Newgate."
** This note of Johnson's case wi
cated to me by %uy good friend the late J
Justice Abney, The case is reported by i
jeaut BarnardLston in his iirst volume^ ftnd|
sir John Strange.
* <« This justice was refused to mi '
Anustrong in a Uke i
J
r^TC TRIALS, 56 Charles 11
1^* &f TttOdtav^ fery Treclj what
, A ^^^ while aq^o iUarti
':uw my
' TLottiUv Armiitroiitr. voii irmy
ofyour
ir<ii in;ii an t ^
V I !-.n>. ^
I'miigatnan,
f, tiow n ise
ffbrhirT^ ■ list
ft-' Ja^lice
'nJudgiueaU
•^ judjptnouU nil!
^.uUy of hjgli*irea-
I- T timv G'»d*
"« never pre-
'!» 1 mn da-
4-iu tadomy tJuly^
&iii, I uould only ftC^piHlnt
, in iviVreorc in what ?iir
' ■ J (lid in-
til* sriie, ao
. ( thai, JWin i^1^ irijjr .tV» per-
•iMitc reaioti for it, Gut the
no unrt <»r . M, I Mf. .-.►,.,:...
[tl»r kif^. For it '.
(brcn g-iv* u
J, lliat alWr llii» fljsappoint-
► IpnrQ liy the pftniflfficp of f :od,
" 'HmtI lit
IT c^idencf , hh pr(»itirtly
r .^►i, ♦,,, 1^ 4,1,1 ^,i,^.,j lie
'^ of cottirtiunira-
f i»CMfe nf Hoiioway, p. t, of thii
skinc's
to the
tfib Ittd kem «0 «t iiicutly driu-, it 04111
^teiCViH •*"* " "i« 'kivis (leenso
Il«ltt9f iry, ajsdlct
. ^ conicimii-
1 654.— Sir TlofmtJ Armstrong, [114
tioti with {preign mioisters witli nihev peopk
were tdken about him, sud will be
X. C. J. Weaie not to nieJdla at all wilh
tlie evi<leuoe, Mr. Attorney ; that is not our
LusinL'ss : here is an outUs^ry ; upon this out-
1"' ' * ' ' aitainted ; we have nothing mor«
1 do th^* d ut y of the court U|K)n this re-
r i^ III nwsnl exixutitjn Upon that ai
t jvearuJtjforit. Iftlieking
v\ i or sir Tliotnas Armstrong
what Im did ibr iiuUuway^ and indutgt^ him a
frin!, and wave the outlawry, wilu all oar
b. We are not digpo^tcrs oi hh gvac€ and
I , hut the ministers of his juslite. If the
kiijjL; will patnlon him, he may ; that is not our
busjnc'ss ; but all we have to do upon what is
' ' -^ UK» IS to C' ' ■' -id, and Avbat
1 ^oner mys . 4 of exet^ut ion .
, , ._ ,i.iveconsidti\x* t. ... ..i^. ..,i.% be a yieldiu^
within the proviso of this statute, and we think
it is not, nor on he, hy any means.
Sir 2^. Armilroni!,, My lord, I am witliin the
statute. I was outlawed while I Mas beyond
tk:a,aiid 1 come now here within the t\^eke-
month. That i» all I know, or have to say in ,
ihii* mutter.
L. V, J, We think i|iiitc tlie contrary, Sir
Thomas.
8ir T. JrfnUrong, When I was before the
council, my lord, they ordered tliat I should
have counsel allotted Vne, but I could bare no
benefit by ihnt order ; for when I was taken, I
wasi-obbett of all thi? money I bad, uud bavcnot
had one penny rvvtoreJ to 10c, tior any
money since ; I know not whether the law al-
lows persons tfi my cooditioo to be robb^
and stripped.
L, C. X I know nothing at all ofthat mat-
ter, sir I'liotaaa*
Sir T, Armitrong, My lord, I know lawvers
willnotplead witb^ ' -^li beingrolibedi
I couUl not havt- ;i?e lliem.
f (f >ii«- t:. ,,,,..,., ;^ ^ti(f, you tekt
mg- what ytju [th iise j you
^ fied, nobody ha» robbed you
Chat I know of,
Hir 1\ Artfiitrong. Nobody says you dc^
know of it ; but so it as.
L, C. /. Nay, be a» angry as you will, ttr
Thowas,»e are not concerned at your anger.
We will undoubtedly do our duty.
Sir '/'. Armtnm^. I ouudit to havetlie bdie-
iit oi the law, and 1 deinund no more.
X. C. J- That you slmJI have by ihe^raceof
God, See thnt exerution be done on I'rtday
ne)tt, according to law. You ahall have th«
full benefit of Ukelaw,
Then the prisoner was carried bark to New-
crtite. and allerwards^ upon a rtUlion»thc< 'ourt
' () I^irH. fVlauhewato be rd«ascd out of
V wiiliout ffccs.
urs4 of the contmry could, probably, ban? pre-
veiled to put so strained n sen^e ofi the statute^
in order to deprive him ol a Trial.** Fornix
Edition.
1
1 15J STATE TRIALS, 36 Charles II. \6^i.^Proceedings agmnat [1 1(7
/Hie Khcrifls of London ami Muhllesex, about
nine oVlock in the morning, coniinuf^to New-
^ati.', an«1 demanding tlii'ir prisoner, he was
forthwith delivered to them, and put into a
slei!«;e, and drawn to the place of execution, at-
terwli.".! hy a luiinerous ofuanl, and a3 great a
luuitbcr of spectators, (»f all de<>:rees and quali-
tiMi, as have been seen on such occasions.
He cuipl(»\>Ml the time be was drawing to
Tjhura in rei*din;,^"The Whole DutA' of Man/*
till he came within sight of tiie ([^tillows, and
tlien he laid ic by, and with lifted up hands and > That Mr. Attorney change
eyes, adflressodliimself to JK'aven, till he came I one of those that were to kiU the king. He took
and particularly of what Mr. Attorney accused
him of at the Irar.
That he prayed to be allowed a trial for
liis life, according to the laws of the land, and
urged the sUtute of Edward Gth, which was
expressly for it ; but it signified nothing, and
he was with an extraordinary roughness con-
deunie<l and made a precedent ; though Hol-
loway had it offered him, and he couUlnntbui
Ihinic all the world would conclude his
; very different, else why was it refusetl to him?
That Mr. Attorney rhanred him furbein?
beneath the tree, w berc he remained about a
quarter of »m h««ur in the sledge ; before he
asiTiidetl .the cart that stood n*ady for him, he
desired the sheritf to admit Dr. Tennison to
come to bin I : and having delivered a paper to
the sheriff, the doctor kneele«l down with the
prisoner, nnd pra^x-d with him about a quarter
of an hour, during all which time the pri-
soner prwiJTved a Lieeouiing and heroic coun-
tenance, little daunted with the terror of that
fate he was in view of: but rising from his de-
votions, he nulled off his cravat and bat, which
he gave to hirt ser\ant who attended him, and
had folio tved him by the sledge-side, when
kneeling down himself, he prayed for a short
time with fervency and dcvolion, begging par-
don of his God for those manifold and crying
sins he had been too often guilty of, and con-
cluded with a resignation of himself to the
God of Heaven and earth, before whose judg-
ment seat be was forthwith to appear, desiring
that the whole world would forgive him, with
w lioni he hoped he died in peace and charity.
Having thus ended these devotions, he ngam
stood up, c.d putting off his periwig, he nad
a white cap dehvereil to him, which he put on ; 1
and being soon after tied up, the chief of his | These Proceetlings w.. re afterwards enquhrf
di<tcourse was adtlresscd to a gentleman who l i„to, and censured ;is illegal by the House fit
stoo<l by him ; and a^er a short ^pitce, holding ■ Commons in 1089.^
God to witness, that he never had a thought to
take away the king's life, and fjiat no mui
ever had the impudence to propose so barbaroiH
and base a tbini<f to him ; and that he ne^'tr
was in any design to alter tlie government.
That if he had been tried, he could have prov-
ed the lonl Howard's liase reflections upon him
to bo notoriously false. He concluded. That
he had lived, and now died of the Reformed
Religion, a Protestant in the communion of the
church of Englaml, and he heartily wished he
had lived more strictly up to the religion he
belicveil: That he had found the great coni-
ibrt of the love and mercy of God, in and
through his blessed Redeemer, in whom he
only trusted, and verily ho|»€d that he was
going to partake of tliat fiduess of jo^ whirh
IS in his presence, the hopes whereof infinilelj
pleased him. He thanked God he had no re-
pining, but cheaii'uliy submitted to the punish-
ment of his sins : he freely forgave all the
world, even those concerned in takinff ^ away
his life, though he could not but think bis sen-
tence verv hanl, he being denied the laws of
the land.'*»
up his hands, he agjiin ren(*wed his prayers ;
his visage little changing all the time, till the
very moment the cart drew away ; the execu-
tioner Imving pulled the cap over liis eyes, he
continued his prjyers all the time, and even
whilst he huu'^, as b)ng as hfe was in him,
and he hud the counuand of his lips ; afler he
had hung about half uu hour, and ih<.' execu-
tioner had divested him of his npparel. he was .
out down atrording to his sentence, his privy i
roembers burnt, his head cut oil", and sluwed
to the peopli: as that of a tniitor, his heart and "
iK)weU taken on I, ami c<Mn!uiltc*d to the thuurs,
and his bmly quartered into four parts, uliich
Mailis, \1 November, 1689.
A Petition of tlie l-.idy Armstrong and hsc
daughters, wa.; read ; vvficreujiou a l.'ommittM
t was uujMiinted to examine the matter, and
make tlieir roporlto the House.
*' Resolved;
^^ That it be an instnu lion to the Committer
Thnt they examine who were the judges tka
gave thi* sentences nuainst sir Thtnnas Anm
i^trong, and who v^ere the prosecutors of him
and who had his (stute; and how the pcti
tinners inuy have iriiiralion : and also to
■(edinjrs v.ei
mine whiit proe(
rverc in order. to
with his head was oMi>ey«Ml bark to Newgati, i ^.y\^ of trior by him desircil, aiid how it caMS
to Ih' divposed of according to his majesty's j xa be dinicd, and by whom : And thcvare t
pleasure; and were afterwards publicly ex- | make their lepoit w'ith all convenient spccd-f
I»osefl.
Ilu? sub'»tan'*e of the Paper de-liveriMl to the
sheriff was, ** Tiiat he thanked Almighty (i'wl,
he foiuid liiniself prepand tor death, his
thonglitsMt upon uhiithi-r world, and wcani't!
Iioiii this ; \i>( he could uot but give ho much
•f kiri 111 tie lime as to uns\\eT some caluiunics,
l\1artis, 19 November, 1C89.
Mr. Chrisly reported from the Committf
to whom the ^Petition of the lady Armstroim
and the daughters of sir Thomas ArmstM^i
was referred ; a:i account of the whole pB^
« See 6 Cobb. Pari. Hist. 415, 516.
171 STATE TRIALS, 3^ Charles II. j Gu.^Sir Tkomui Armstrong. [1 18
iiitber ; ami sir llobert Snwy^r f (then AtU>r-
oey-Gener-al) being' rmminJ hy lier, as i»oe of
itie prosrt'uiora ; atier slie wus wlUidruvvii, ht
was heap I hi hts place lu vUiat uns otijeiled
against liiiii, anti thi^ii lie wUhdrew, ami m\kh%
itebute of the uiiilt r, li vvas re^oU«d, '' Tiiut
sir UoIk'iI 8aw^)'£r*ia name be |Htt into ihc Bitl,
[ia#*n ft*r»;nst him ; and that thereupon ihcy
[ 1 . ' •A nnslrong's rilea oiigh t
iW^c uct-n ,tu4naiiHi, iircimJiii^ lo me stutiUt*
«f l>dwftrd (I, iind that tlit' tfxrcution of him
' '*r hy outlawry, was illegaJj
(jrt'ttHice of justice.
extMdlOTs uod heirs of sir
>)^i ou^ht to have a I'ejiara-
.-i out of the etitates of tliuse
i writ: iaih jii*\i*,eii ttud |irfi«cM>uturs.
[ 3. •• That a Writ of Error for the reversal dt
|jti4c^)<^ot iu fcl'ioy or Ireasoo, i»» the right of
i nJijffct, &nd outf-ht to lie granted ai his de>
ib^ ind ts> fitit an art of gnxce or favour ; which
uaj be denied i^r granted at pleasure. '''*^
^ 1\> ill whtcb Resolves the House agreed.
^ BeMdvod,
I** Thwi U«ivt? be given to brinjf in a bill to ro-
Pihi- ivHrnfiiirr -f Sir ThomaH Artuslroofr^
taitrt II to his .vidow and chil
- of the judges and pro-
I mad the aaine to he without feea.^'
Btmiidiij tlje ^2oili of Jauuaiy, 1089.
\ Mr* Chmly rcjiart*?*! from the Committee,
mbods the htU for the annulUng the Attain-
*d «r Thomas Amiiitron;; v as {"ecocnniitted;
ti«ake witfudinetiUi to the bill ; a*^ abo who were
li» |in«Hsiitoni ; an* I aliso \^hctt losses sir Tho*
itn imitfb^oo^'^ tiiniUy huil snstaiue<1, by
I of the altainder f and thereufHin it was
Richard HoUoway, sir Fnincis
i executors of the lute lord Jeffe-
[pii, tttif «f tlte late justice WaJcoi, >lr. Gra-
1 Mr Burton, do HitemI the Housf on
r OHnrtiini^ uext, to answer to «uch mat-
I ir» cliargeil at^n^in^t them touchtuy' the
I o^inst »ir Thuuias Aniistroii|^."
Thm Mrm. Matthews^ sir Thuuius Ann-
' inkog'f daughter, was called in, and examiix^d
italic ktMfW of the prosecution a^nst her
* 8ee S^lk. 5>0i, and the boolcM there ciietl
SrTM'int Wtbon^s edition, contr. H. C.
J ^lod. 47 ; in the rontier of which
-^uf, * This «3eius to he a cwnc of
et durus sertno/ ^^ee^ too^
' , p. L of this Volume, and
*4 iL«tx:ti(i'e and taiDeron, and also
iiifa Hejt^ of the tVown, as there cited.
f " The ra«t fcamlii*f and iihility of sir Ro-
1 Sa^s^ r," «;av^ Mr. llur^-raTe, (Preface
f* on the Jurisdictiou of
Cnrliatnent, cxli^ Note)
hed by hSs ivooiicrfutly
sinfuiut-nt for the crown
1,1 i niii]*»u t|no Wart^uto caiie in the
rCbiiifii the **'Cond By thus referring
vof
_,. ^,..^, : 1 ■.. l-':'bert
lite atf a ifienibcr oi parUaiuent and
^ift particuJar* lathis ^reat struggle
of the Couuiions about nppellaut jurisdiction
over equity he took a decisive pari ii;{uui»t th*
claims ot the Lotdh. Alniut tive yHirg otter-
wards and \« Uan im Umi been Speaker of the
Commons, he was made aitumt-y i^enerat, aad
in that uttice so couducted liie stale prosecu*
ttous during the latter part ot the rel^u of
Ctiarlea tht; second and for some year* ol th^
rd^rn of hii» bii^oited and unfitrtunaie successor,
a^ to tender himself very ua|Kipiil;ir if not odi-
ous. But a i'ew months before the Kevolution^
sir Robert, havings itdwiefl to bupp<irt tiie did-
nen^iny^ power [See the Case of sir Edward
lliil&s, in this CollecUon, ^, n. 1086") claiuj*;d by
king James, wh» removed from oificc : und
then he was singled out as ooe of the counsel
fur the bishops on their trtalH, [pee their Ciuie m
this Collection, a. f>. 1688, J and acquitted hiin*
self with di»tin^ui^hed abdity >?ee K Bum.
Iliit. foL ed, 742. lu the Couveniiou Parlia-
ment, he wa*; zealous aurumsL Jaoie^i ; and in
one of the debutt^!!^ previou«» la the vuie of Abdi-
cutioo, eveu W€nt the Icuj^thof ^saying; *- in all I
' have read J nev^n Luet, iu no sihoit a reigOi ,
' witl^ the laws ^ viMhitcd und the prerogative
* so stretched/ ^ Cobb, PafU Hist. 48. \V hen the ^
Revokttion was accotiiplintied, there s^eemed to
he a prospect, that his ^vc^i U%wX and p:irlia«
itientary abilities would raisr him ag^ain iiit4i '
some hifjrh official situation in the law. But
bis rivals were catfer ui uke advantiig^c of his
iitriiier eoniiuct: and his harsh procf^cdioLfa
uitifain^l sir Thomas A rmsjTt"/ ^^i'" was exe-
cuted on an outlawry lor > i notwith*
staii<hng ull the cannot :ii; , - etfort^of*]
his lady and her friends to obtain a ^^rit of er-
ror to reverse the judgfuenlf the leK'aliiy of i
which was niMst ap|iarencly fjue*tionablc. soon
gave the oppcfftuiiity^ A |M*tilion of lady Arm«
stron|>; iiud htsr dau|<luer» wjis presented to thft
HousL* of Couuiions ; and the result was im-
plicatm^ sir Hiibert Sawyer a^ the leader of th# 1
protjecutioii, and in respect tif it he whs ex-
pelled the i{ou!»e of CofuuiouS. it ts ob-
ubservable^ that this petition of lady Artn*itron^
produced a tiesohitiou of the Houe« of Cuui"
mons, * that a Wni id Error tor the revental of J
' a judgment in felony or treason la the hgbl I
* of the subject and ou^ht to he i^rantefl at hit
* desire, and is not nn art ot gnue o*- favour,
* wfilch m«y be denied or granted at '
This Resolution paired ttie 19th N >
H hicb w as about two nioutht bt t
f'\pukiou ; and it seems from
count ofrh- ^ ' '' ' '
coarsie b+ ! t
gratttiug ui ,...,::- . , i i
grounds. But on the other Imnd ti
remembered on his bebaU, that the
3
Fmie of the pro«ecutore of sir Thomas Ann*
strong."
Re^ihed, " That sir Robert 8ftwycr be «6-
pelkd the House for the same.*'
Saiunlay the 15th of January* 1689.
The House beioQ^ acc^aalntcil, TbJil acconf-
inr to tfu'ir onler, sir Frauds WytUens> sir
llichaul Mollo^vay, Mr. Cimham, ntwl ^ir.
Br*' '^ '^'luk'ti at the door, thry wert^tevp.
ri iti» aud examined, toiidiiu§r the
L'l . ,_ . , ^ iiud Pioceed iu ifs og^isi t>i r Tho-
^ Ai-m^trong»
^ ^.sil uJwrt the executors of the late lord Jef-
ferics, that were litteudini; at iheHoor, were
likewise vu\\ei\ in* aud askeil what th*'y ^Hd to
iny, w bv rejmratiou should nni bv made out of
the lonf Jc'flcrif^'s t'slate, to the said sir Tho-
mas A i t ' (.imily.
No i ]>earing a* Executor* to the
late juritm If ui« ut ; the House wns aci^«ainte<l
tbot he died iote^tate^ and had not left ao estate
•ufBcieid to [lay his flebts.
After the t^^rsons before nientiooeiJ were
heart! and withdrawn, 31 r. Biaucy was called
in, who gtive the House au aceount of the pro-
ceetlingT? in the court of Kiug'i •bench, upon
lite ftivarding execotioD against sir Thomas
Armslroug'.
Aud then the House pn ![>on the
amefjdraents ruaJe hy the ^ lo the
bill, for aunulHn|tf" tlieAttaHHH.r < 11 vjr Thomas
Armstrong : anfl arter havin*^' inserted the name
of sir Rotwii Sawyer, as a proseeutor, and re-
solvttl. That the sum of five thousand jjouods
ihould be paid hy the judg^es »nd proseculors,
to sir Thomas /^Vrnstrong^'s lady, ajid children,
B» a recompene^ of the losst^ thev had sus-
tained by reason of his attainder, tlic bill was
recommitted (upon the dol»ate of the House) lo
the sauie Couimtltee.
Til is bill not p^ssrngr, the Attainder stood in
force liU 6 Wilhara iind Mary, wlien it was re-
versed upon a Writ of Error In ihe King^s-
" eoch ; ibr that the record did not mention
here the court of Hustings were held, the
da Dro Chitatt' London Ijeing omitted. 4
Mod, Hep, 366.
t A COPY of the IMPER dehrered to the Lord-
Keet»er NORTH, the Lord -Chief- Justice
^^ JEFFRliYS, aud Mr, ATTORNEY-
mm GENi^R\L, by the Lady ARM-
^" 8TR0NG, on the behalf of her husband
I Bir THOMAS ARMSTRONG .
|l My L(.rd ;
I am iiifornied, That by the common law of
nes^ examined against him admitted, that he
did not dcmaitd execution of sir Thomas till the
judges had declared theQisel?es» and that as to
die Writ of Error he said it was oot in iiia
iKVwcr to t^aut a Writ of Error, but tliat the
tug or lord kce|x.'r muM be applied to by |>e-
nl oral
Bug Umd, any cnati that was ouu
or tt'eoBon, might brim; a writ <
?erse his outlawry; which was to'
» f?x debjtft jusiicia* ;' though it nil
r¥^rtf>er f^r suing for such a writ of «
' .» W by way of petitioii (l
( ! uonstmncc de drait lor U
ami so It Uiis re<K>lved an Niuiau Mtf
Co. 4 Inst. *!.').
Next, by the common law, if aay
in Ensrhiud at the im»e of the exigei
and went out of the realm alter that,
theoutlnury protiounr^d, he couki
sign that tclr error, that he was h
at the same time of the pi'onoatictng
la wry; and the reason is, be«iii««
hereat the time ol* the awan i
aud mi|£ht reasouubly havt^
On the other side, If any were cju
land during the whole process and |
tion of the outlawry, it was never 1
Imt that was an error, and might I
for error, either hy ihe iiarty or hia I
eouuuoti law, and so continues to
and was, not long siuee, adjudged in
case, the Irishman, who came io
years after the outlawry.
Then comes the stitute of 5 ai
6 cap. 11. and enlarges the law fcMr
of the outlawed person, aud gives k
to assigu for error, that he was bej
the time of the outlawry pn»uoiinc<
he could not do by t^ommou law,
siaiote ; and so continues.
Then comes the proviso, and say
must come iu within a year, aad n
self, to be entitled to the beiietil o1
which was to atisigu for crrtir, tlkat 1
yoniJ se<k at the time of the o<utl
uouueed>
So tiiRt, my lord, upon this short i
law, an<l mv husband^s case* be bei
sea all ihe time of the (rrocesH^ and i
of the outjiiwiy pronounced, it is co
is well entideil to assigu this for ei
common taw, without any aid of I
ttf..M.ri, ift^ nroviiio iu tliat statuta
I 4 him; which f with tub
!i - J of many leiimeo f
tlmi he IS within the tntetit and i
proviso, for many reasons ttni
your lordKhip witli now.
Therefore I do hope that
husband's being the first case
was executed upon an outlawry (tl<
desire it) luay have thai **t-jaht with
shift ih.it U dcMi'r^es : iind do hiipe
lordship will so »dvi^•e the king ii
law (wdose counsel you are), that n
may have a writ of crr^ir graiitetl
counsel ussigatil him to ar;iiie these
by the law liss h«den allowed to crimi
piUil cases, with whatsoever else si
upon the record of outlawry urodu
a« yet my buaband, or any lor him n
"4
Lsa mm
STATE TUIAIA ^ Ciurles II
»nm^ ift Rm|^ Nurtii'ii ftdeccc of
Mi :i]nAu'*itn>H I
' il u wril
t «ii«l^ wa<K oiaU««v<Hl lor tiit^ Uv<? Floi
j«pfM»nl u ftir
I his
9«^ii«i iM ji-iK* :* ^\^^l oi • in r^ ami bc
tB ||lcfliil. Hut the jut^^^cii utre *'t
>—"»•» IfTutlj^Kt ■'» I'^i ►' " f' 'C'ninst
« f«nrf«rri ;i the
I, litrcttpou I ate^L
|w*jfi-p fnr n writ of>rrnr ; jinil, i'Xti-
P ^ittuid that
telt tr«a<»on,
ULixU out u itUtJut a H armi»i
'ISeiK'rml ; lior U im mot u wrU
vour ; aiut ' ' ', cJe-
_Ti»t Mpal lijid
But t.
mil»<jliM«4: ]' i<r It.
iii^ afWrvt ^ . it^d
ftr^iiit (iC a (liecc of comnum jiihiic*'
^^VtiiOkl; »ihJ, n^Wr tli*' H' volutiun,
li^-ffuin ii» o|K'ii uinmt it.
»fi«per was lrnuK-il, mimI pul
of MiriaM nil (iiWi K, ^* hn tin il
ifl»nE|irtflcoi fAHher, ihut, K It
«^ iIm cufiilor li» UHiki^ nut wntii
m. Ami
I, ih llmt
^ ,.. I,:tl1 to UlM
^H' ti..- li'tuial
t2, 'I'he ap<
apL<etal viriiA
rlri uutitein ly otKfii court, or Uy
^t wladihtm^ (raoM, m fins i» wkiU:
^tai M«e Uf^i 4
il writ Htt«*H'i
^,«4tttii
« II
^^thBRfiaAltograi
):ii4 in Um?
. 1 68 i.— Sir Wowirf Armitrcng. [ 128 .
ever iiia<lt* in tlsil caxe. 3. An oniJ applies tfOQ
in prtrale^ m not to \*e lecfanled, because Umtc
iii uo ccitniulv of >TUat la cither allied or d^* 1
hum) P.r.«jin*s*» of that kiuU, ui ool trLisi«4 |
; hut majii U; in writiug-, because
» 'Hprr is iittt to nohcii atiy m^irs luii]
iil hiH iuj>tau4^e. lie may direct ifheihiiikal
lit, hut is not hound, 8fjiU)in!i must liiJlow iQ
the j»h»|wr f>1ii«'#-s; and it was nc%er lieanl th«t !
sucli suit It as nmiU to the lord keeper, but from
the person ivhuae am* it is. There Yvaji rca*i
Aoji to endeavour a rif^ht uiidentundin^ at tbaij
time^ w hco roramittt^ts of br)lJj Houses afkaft 1
nertj appoiotrtl to enf|tiire mU* tl»e foregoing J
proi^ecdinf2fH. Th&t itt liie House of Lorda w$m j
rulJed tlur Committee of Murther. But alUv j
all uivtUnU of t oquiry Uiat could he taken
upoo outh or oilierwiaife, oo k)ame Has tuuud in ,
^Tiy indite or mimster in the time of kin^j
Charles 2, VVht<'li, ys hiiM been touched al* 1
rcady^ is a vimlicatiorv that few ages, pot t4J
such atrial, ^uld hope Ibr/'
A Copy of the PAPER delirered by Sir Tbo
■AS ARWfTRttNG to the Shmlf.
1 thank Almighty Cod, ihon"^l> I Km ve bail
but a short time alhw^ mr, I r pre- 1
pared for deathi and cny thofi;^l m uao^l
tUer viorkl ; aud I trust iu (jod's mercy, 1 am]
\^t4\ weaoetl from stttio}^ my heart on this : '
yet I i'linttot but givt- so miK^h af my htile lime^ j
(o set down in ^viitiug my answetM to aoiiie t
lumnien raifted since my clu^e imprisuruneiiL 1
HA well as what Mr. AiU>rtiey accused me ^J
ut the bar. I was told, a very i^reai peri&D i
f was a spy of Cmmwetf's. 1 was sent fron
'''"'•• ►ly the hetii and loosiilerti blest frietM
\u\ then, with hilU of exchange,
wry great importanre lo his majeitjf j
1^ ; I appeal to ltismaje«t} if I delmr*
t)Ot sale, and Iuh answer to ifa
wheu 1 TL turned : Whieh I hkd not bc^n abof#l
nix days hut 1 was elappetl up a cto»e prison<9J
in the Gatehouse, and in extreme dani^r
my hfe for that journey. Before this, 1 ha
been a year in Lambeth- house a prif^ooer ]
and alW a prisoner in iheTower^ when ibe
Uiiurper dietf^ und riear starvintT in evefv one nf
ilN*in : tery dl treatments for a «py »qu a ueo^
sioner \ My lord td' Clilord and many alnert
ol' quiihty, will 1 think, testify my iuuoccficse
UI tlwj* point. 1 protect, heftMcGoif I wns itercr
a flfiy nr pcnstniier to Cromwell, or any other
wan, On Haturday last I was brought lUiwtt
to (he King's- bench l»ar, ou an outlawry of
high treiisou : I was aiiked whut I had Utaty
for my^ell, ihatjodifinetit of d*ath should w^
pass? I aoHMurod, Thai I was heyciwl nem
when the ouUawry tame out ; I thought t|ie
law allowed a wnt ol error to revrrne it ; I
prayi^l I nii(^hl he allowed a tni»l for my life,
lunmlmg to the bw^of the bud; 1 ur|^c4
the statute tif Edviard r»th, vUitdi was ex-
presH for it ; but it *iigiuB«^d nothing : I waa
coiidciiimed, and made a precedent ; thougli
I
i2S]
STATE TRIALS, 36 ChablbsU. l6si..—Proeeedingi. ^r.
[IS
Mr. HoHoway a little before had it ofTered him.
I cannot but think all the world will conclude
roy case very different : and why was it refused
me ? Mr. Attorney accused me there for bein^
one of those that were to kill the king as soon
as he came buck from Newmarket after the
tire. I take God to witness, I never was in
any desiorn to take away the king'& life ; neither
had any man the impudence to proi>ose so
basc^ and barban>us a thin^' to me ; iieitner was
I ever in any desi<^n to alter the government
of England. What I am accused of, I know
no otherwbe than by reports, and prints; which
1 take to be uncertain. 80 that it cannot be
Expected I should make particular answers to
them. If I had been tried, I could have prov-
ed my lord Hcmanl's base reflections upon me
to be a notorious falsehood ; for there were at
least ten gentlemen, besides all the servants in
the house, can prove I dined there that day.
I have liveil, and now die, of the reformed
religion, a true and sincere Protestant, and in
the communion of the church of England. I
have found the great cdmfort of the love and
mercy of God, in and through my bless<
Redeemer, in whom I ouly trust ; *and I <
verily ho]>e I am going to partike of that fu
ness of joy which I believe is in his presence
thebojies whereof do infinitely please me.
thank God, 1 have no repining at my he:ui ft
the condition my sins have most deserved I
brought me to ; I have deserved much won
at the hands of God : l!fk> that I checi fully sal
mit to this punishment, as being taken off bi
a small time sooner, i do freely forgire 1
the world, even those concerned in taking awi
my life. As for the sentence of death pam
u|)on me, I cannot but think it a very hard dim
being denied the law of the land, as I thin]
To conclude: As I never had any desig
against the king's life, or the fife of any mai
so I was never in any design to alter the gn
vernment. I die in charity v^ith all the woriil
and therefore I heartily pray God to bleas tl
church of Christ every where, these jxMir ni
tions, and the king's majesty ; and I heartii
commend my soul to God's infinite merr
through my blessed Saviour, Jesus Christ.
Remarks upon the Award of Execution against Sir Thomas Arm
STRONG ; by Sir John Hawles, Solicitor-General in the Reig
of William the Third.
trial to sir Thomas Armstrong, which waanen
denied any person before nor since, wjhere
was agreeil that all the mtnesses agiiiMt til
]ierson accused were alive, as in sir Thomi
Armslronjj's case they were, barely upon tfe
quibble of^thc word * nMider,' which in no c
that ever I rciid was ditlerenced from.^t "
but in one cast*, which is Smith and
case, in Cro. Car. 58. in an outlawry' for deb
against husband and wife, which will not<9
tend to, or warrant the judgment in this can
and if there were but a doubt in the case, as
canuot be denied there was, the outlawry oogl
to have lK*en waved, or ut least counsel 1w ll
prisoner heard as to the [M)int.
It was a vain and unjust reason (and onl|
tending to incense tlie thing) assigned by A
attorney, that the prisoner was one who aett
ally engaged to go, U]K>n the king's hasty cMl
ing to town to destroy him by the Wifl
whereas the prisoner offered to pro\'e his intfi
cence in that and other matters of wbk^_ 1
was accused : and even that objection agaili
him was an invention of the attorney's, i
any thing appears \ but then it was remlvw
stop at nothing, and success had made tb^
fearless. Fitzharris and Colledge it was
AT common law, if a person was beyond sea
when an outlawry was pronounced' against
him, it was an error in fact, for which the out-
lawry was to be reversed ; and it is ah error in
all outlawriw but fbr high treason to this day.
By the 6tti of Edward 6th, that error is taken
nway in high treason, but there is a proviso in
that'statute, that if the person outlawed shall
within a year afn^r the outlawry pn>nounced,
yield himself to the chief justice of the King's-
bench, and oH'er to traverse his indictment,
and on his trial shall be actiuitted, he shall be
dischai-ged of the outlawry. Upon the con-
sti'uction of this statute, no judgment was ever
given that I know of ; and the reason is, no
man outlawed was ever denied a trial till this
time, if he was taken within a competent time.
The reason of making that statute was this ;
men would commit trc^ason, and presently fly
beyond sea, and . stay there till ttie witnesses
who should prove the treason were dead ; then
retnm, and reverse the outlawry for the error
of their being beyond sea ; and the witnesses
being dead they were safe : and therefore this
statute takes away that error in part, though
not in the whole, and doth in effect say, that
the person outlawed shall not have advantage
of tnat error, unless he comes and takes his
tiial within a competent time, which that statute
limits to a year al\er the outlawry pronounced.
This being phunly the sense of the statute,
was injustice to deny the favour or right of a
had hard measure, and that their cases bM
be forgotten, their quarters were buried ; ■
sir Thomas Armstrong's were exposed, tboOl
the proceedings against him were equally. |
unjustifud>le as in tike other two cases.
STATETRI ALS, 36Ch arlesII. l6S4,.^Proeeeding9, against TUugOates. [126
Proceedings on a Writ of Inquiry of Damages* between his
Royal Highness James Duke of York, in an Action upon
the* Statute <Ic Scandalis Magnatum,t and Titus OATES,f in
the King's-IJench: SSC^harles II. a. d. 1684.§
Imyil highness the duke of York, haTing-
^ la action a^inst Titus OateSf ^roundecl
ilhcrtatntc tie SramUIis Matrnatiim, for
rimderous and opprobrious words, the de-
ls to the Writ of Inquiry to assess da-
Id^ and the execution of it, nee tbe Books
Ptacbcc and the Laiv Dicttooar^*, title
i^nent 1;" title ''Writ of Inquiry to
■ Oamaj^es." Under tbe first of these
iiilbe Law Dictionary, edition of 1U09,
■U, ^* the number of jurors sworn upon
■fMSt need not be confined to twelve ;'*
fa BQie is laifl down by Mr. Christian in
ill* S Blackst. Comm. .'^98 ; hut no au-
ihria suj^port of the posiiion is citcu except
Gmc ot OHtea : ideb qua^e. It appears,
hdOL Comiu. 398. Law Diet. tit. Judg-
i 1^ that by the judipiicnt out of which
Wnl of Inquiry arises, <' the sheriff is
■Miled, that bv'the oaths of twelve honest
i^mhd meo, be inquire," &c. For the
U'wgf in ciTil suits, the sheriff is coin-
■Ml H diat he cause to come, &cc. tweke
^ ai kvfal naeu, S^c. to recoy^nise the
fk^kt. Hee Law Diet, title Jury IV. As
tIblVik if Inquirv in Replevin, see Scl-
llfiViiMn, Replevin, sect. 9.
f Alii Aeietion for Scandahim Marrnatntn,
^ M*ja*i Abridgement of the Law of Nisi
** * . Sounder.
. ia tills V<»liime, the Reports of his
Sir Peijury on the 8th and «Jth days of
MBS.
t^fteCrequency, about this time,of prosc-
■■H fcr de&maiory speeches and writing's,
'~^ I way be formed from the follow in'*"
I extracted from Narcishus LuttrelFs
t « Brief Histnrif;al Relation," &c.
I^liv. 98lfa, 1(»B2, btin<r the last day of the
^ Mr. PULingf cm, late sheriff of tioudun,
piM»ihe court nf Rinse's- liench, and ren-
Undf into custody iu discharge of his
IhAeSkaodalum Ma^natum by the duke
ifuostbim.
} 3d, 1683, was a trial at bar iu the
iu a Scandalum Ma^^natiun,
the duke of Onnond a|f dinst Mr.
•pttcringtDn, for speakini;^ these words
PS Iht be was a Papist aiid in the Irish
Ifailtv of hiirh treason, to bis damage
~iM. fbis was tried by a substantial
ki eouoty of Surrey : the witnesses
^ tbe words were Narrative Smith
ttWarcup, who swore very home;
Miiidiiit making little defence, the
ite guiag frou the bar, timnd fur
fendant suffcretl judgement to go against him
by default, uud thcreui>on a writ of inquiry was
taken out, directed to the sheriff of the county
of Middlesex, to enquire by a jury of that county
the plaintiff, and gave him 10,000/. damages ;^
upon whicli Hatherington rendered himself
into custo<ly in discharge of his bail.
<< April 30, ICStl. In the afternoon, at the
Nisi Prius for the county of Middlesex, before
the liOrd Chief Justice Jeffcrys, George Caw-
dron, steward to the earl of Clare, was tried
upon an information for speaking very scan-
dalous and seditious words of his majesty and
the government, and was thereof found guilt}'.
**"May 3d, was a trial at the King*s- bench
liar, in an action of S«!andalum Magnatum, by
his Royal Highness, brought against John
Dutton Colt, es((. a member of parliament for
the borough of Lcmster, for very scandalous
words spoken of the Duke, which words being
fully proved, the jury went from the b:ir, and
presently came in and found for the plaintiff,
and gave him damages to 100,000/.
'* His Iloyal Highness, some time since,
commenced an action of Scandalum Magnatum
against Sir Francis Drake, bart. of the county
of Devon, for words spoken by him of the
Duke about four vears siuce; wluch he hearing
of, and that a writ w as coming dow n iw arrest
him, tiiought tit to abscond, and is since gone
beyond sea, and has, as i:; suid, dis|)osal of his
estate, thinking it better to ha\e his liberty m
•A foreign country, than be laid up iu his own
for 100,000/.
** His Royal Highness has brought his ac-
tion (if Scundahiin I\lagnatum against Dr.
Tiius (>ates for words ; aud not being able to
lind bail, he wjis committed to the Compter, *
and since turned over to the King's-beucb.
prison by ITubeus Corpus.
" 9th. Kdward Noteworthy the younger,
esq. plead(»l at the court of King's^bench >'ot
Guilty, to au inforuiation for these words : He
hoped to see the judges hanged that tried Fitz v
liarris.
" 12th. George Cawdron, convicted som<
time since for seditious words, came to recei\*{
the judgment of thr court, which was to pay a
Hue of 100/. to stand [qu. in the pillory] in thu
Palace-yard, at Westuiinster, aud in Clare-
market, to fmd surelirs of his gcKMl behatiuur
for life, and be committed till this l>e done.
"31st. Kol)ert Julian came t:» the court
of King's-bcnrh, and pleaded Not (luilty to an
information, for making and pubiisliinir that
sciuidahms IIIm^I, lM*ing a ballati to the tune of
" Ohl Sinum the King.*'
" June Hill. J'ranci> Smith, bookseller,
STATE TRIAfJS, 5<S Cn.II, }6nu—Pn>(redhf^$btiw€m (ke D, vf Vork [1
fihould bfc oxrcuted nt tboharoo this ilay, \
tbiit ilie hi^li Micrifl*«)iotilda|i(M^r nml ar
cheexecutiod of the writ in penwri. Accordi;
Iv ibis iluy sir Peter Daniel, kt. and Sooii
fliwUuwMl^ e*q. the ihen sheriffs of the ro«o
(if MickltcMMrx, came into tliis court, iitiil
iwbaldacnage&tlie plaintitrhml sustained there-
bVf Mttd upon ft inoiioii madf? ai lite court riT
KuigVbrnch, a day was 14-ivfm to Uie di»f«>u-
dant^ to shdv caUfeVhy l^at writ of inquiry
■liauld not he executed at the bar of thul i>jw%
which be Qot doing, it wa» ordereil, that it
nt the Ele^jhant and Castlef in Comhill, was
tried bdbre the Lord Chiel" Justice JeflVrys,
%tju>x\ an iitformalion for Rritidii£[^ and publish-
ui^ ft scandnlous lihel callc<i The flaree 8he» ,
ul' which he wils foiiuil giulty ,
•^ June 18th. 8ome time since the duke of
York broMg'hl his actioti of ^icandaJum Hag-
tiatum against I>r. Oatcs, upon which he w^s
ajTCJiteii and committed for wunt of hsiil ; be
thou^t it not fit to stau'l a tnal, so lot jinlg-
inent pass by default, upon which u \Viii of
Ivnquiry of dania|i?ei4 was nnited for, and or-
dered tabe at the KJnj^*!^- bench bur ihiH day ;
nhich Qccording-ly came on, and a {iiry Was
aworOi the shcntfa of Middlesex att«?ndin«;' : the
ivordiv were proved Tery fully, being- very hcmi-
daloti!(, with several other malidous \i0rd5 of
hif tjtoken of his Royai Highness ; so thiit the
jury assessed damages to 100,000?, and 20*.
costs of suit. The words were ^jKikeii two or
lljree yetwrs ago ; atid the dijfendant niride no
dd^ce mi mS^ nor did any one a^^pear fur
litm.
*' One Hindmarsb, a bookseller, convicted
of printing and rnjl>ii^)n:nrr n Mnsphemoufi hbel^
entith-d. The 1 ler NosttT, was
iieniLntt*e<l to p. _
•* Francis Hnnih^ convicte^i Intdy of printiDij
and publishing^ that hltel, called, 'Tbt Raree-
Shew, was brotighi the 18th to the Kinsf*s-
bcnch bar, and sentenced to pav a fine of M)Oi.
^Aand in the pillory at the Wlaceyard, at
Iminster^ at ihc i* emple, aiul at the Royal
bange, and the libel to be burnt by the
foranion banffiuan, and to have a paper set on
biiii sdiinilyiftg his crime ; to Hod Nurelii-^ for
hb ^ood behariotir for life, and bu committeit
till all this be done.
*♦ Nov, 3d, 163^, Robert Nicholson and
Wm. Dalby, two of Oates*s men, pleadetl Not
Guilty to iotbrmarrous far speaking scandalous
and seditiou«f word^j of the Kiog^ the Duke, and
the Government.
" Nov. 13th. One Harris, an attorney, of
WmdbOf, convicted of speaking steditious words
again^ tlie king, was sentenced to pa}* twenty
nobles fine, and to stand in the pillory at Reatf-
iDg, Abitigilon, Newbury, and Windsor.
•* The same day alsiti, Julian, secretary to
the , convicted for publishing many
■candalons lilieJs, was scnlcnrcil to pay 100
marks fine, to stand in the pillory at West-
minster, at Chi»ring-cross> and at bow- street,
and to be boood to his good beliaiiour during
Me.
** 13tii, wn% a trial at the King's-bench Ijar
against Mr, Edw. Nojicworthy, for seditious
irords, in saying. He hopt-f! to live to see the
judges hant;iHl that tried Fit/^surris, This was
lata tt> bt don« m WiltshircN but tha witnesses
testifying the words to be spoken in
shire, he nas acuuitted.
'* 15lh. Nathaniel Thompson, the
printer, was brontrht to fhf court of Kinj*
bt2»ch, and p|e;idL'd Not ftuitty to an indli
ment for printing and pntdishitig a soiindak
popish likl, enlitJcd, The IVtwIigal Son
tnincd hnni**; which denies the king-** sup
macy in ecclesiasitical atfairs.
**"20th. Elias Bosi, convicted
since for drinking a bijlth to th<
pious Stephen Colledtje, xtn^ ^'"
court of King*S'beitch, and
1,000/, fine, to stand in the ^
minster, at the Kx change, and ut Guddti^
for the space of an hour ; be bound to Uk go
heUuriour for life, and be committed till thisf
done.
** 2(3tli. Nathaniel ^
thcri? for nrinlini^ ond p»i
popish li(>el, calletl, The s*n»ai;^\ii ni
liomc, and ihert^ot found gnihy.
* '2Hth. .Mr. Butler, of N-v*!' "- ♦ -■
convlcteil the last assises, for
readrng the Addn*ss of the F.
county to the & night ^i of the ^
l*urliamcnt, was brought to lh»
bench to receive the juilgincut «f tUr ixmti,
which «ns to pay a fine of 500 marks, to ti»ii
sureties J or his gt)od b^javiour for life, and be
committed till this is done,
'' Jan. 93d, 1684-5. Being the finl^
term, several persons appeared at the <
King^s-bench, being bound thereto, a
their app^rances recorded. Then also, Milj
Fleet woiid and sir Thomas Hamwell
Not Guilty, for publish inj^, jjrinting, i
iug a liWI called, An Address to the j
of the Shiie for the Coimty of Northa
*' 23d, Mr, Henry Baker pleaded Noil
to au information for scandalous words a^
Che duke of York ; as also one Norden did '
an indictment for publishing the acaadalo
libel in vindication of the lord of Essex.
*' Then, also, sir Scroop Jl
Guilty to an Information for t.^
fleeting words on the duke of \ ^t n..
^' F'eb. 11- The same day Didhy and 3
cholson, Oates*s two men, convicted forsficd
ing seditious and scnndalous words againit I
late niajesiy anil ilii* prt*seot king» were 91
tenced eacli to pay to/, fine, find sureties
life, and stand in the pillory in all Uie reroi
able parts of the town.
♦» Nov. 16, 1686. The court passed j
ment 00 the attorney, Mr. Edward ^
being convjcted of speaking w ords againit I
t'barles the F'irst ; he wa^i adjudged to ]
when taken, 100 iiiark*fme, and he impri
till paid."
STATE TRIALS. 36 Chtarles 11. j684.— «iii{ Tilut Gates.
[130
e taUe at the jud^^ feet, ivcir,
■Bcutiou of the writ, covrred. Mr.
■ the then Under-Shcriff maaaged
eeded in this manner.
trif. Crier, call sir Charles Lee.
OS avez sir Charles Lee. [Who
eriffl Yoo shall well and truly cn-
agcs, between the most illustrious
s dufce of York an<l Albauy plain-
ts Oites defendant, and tdercin a
pve according to your evidence.
God.
ereat were sworn thus .
friff. Sir William Hill, sir Richard
id air John Berry ; the same oath
B hath for his part taken, you and
Ibr jour parts, shall well and truly
elp TOO God.
trifi Thomas Harriot, Thomas
'alter Brydall; the same oaili, '!kc.
•e, Thomas Done, and William
■me oath, Vc John Sharp, and
fBoU I the same oath, ^4:.
iaaae to have any more than twelve
SrOeor|i;e Jefferies.) How many
iHfe? Prmy swear au odd number
m&o.
wif^ Then I will swear three more,
%■ just fifteen.
iBven, Nichohis Baxter, and John
i|Mne oath, &c. The names of
^ upon the Inquiry : sir Charles
Wmt William Hill, knight, sir
■Mon, kt. sir John Herry, kt.
■iot, Thomas Row, Walter Hry-
I Qttise, Thomas Dune, Willi.im
iflharp, Noheniiah Anioltl, Franris
halaa Baxter, cscjnircs, John Kirk,
mif^ Gentlemen, you are sworn,
I'awriL
ftytreaditto tlicm.
iiny *• Charles II. by tbt Grace
d, Scotland, Fraiu'e and (ro-
of the faith, Ncc. to the
K, Grc'utin^ ; wlitTcas th.*
law orince James (hike of York and
V at the noblcrs and po<Ts uf
V mist dear and only brother,
1^ &C. lately in our court Itcfure
■hater, by bill wiiiKMit our writ
HlMOates, then in the ciistolyof
Itfoar31arshal««ca,b(>iore us h<Mni>f,
RM in a statute made ill the pur-
llhard 9, late kini; uf En;;l;uid after
l( tiddatGloucesUr in th(^ second
l^iBfl unongKt other thintfs : it is
etty probt]>ited, ' That from
I be so hardy to devis<', tell
a, flukes, earls, barons,
■ and great men of England,
r, treasurer, or eierk of
1 of the KiD4,^'tf housc-
* hold, justices of the one or the other bench,
* nor of other g[reat officers of the kingdom
* aforesaid, any false news, lies, or any such
' false thinp^, whereby scandal or discord with -
* in the said kini^dom might arise ;' and whoso-
ever should do thU, should incur and ha\c the
penalty otherwise thereon ordained by the
statute of Westminster the iii-st, as in the sta-
tute aforesaid is more fully coutaiued. ' And
whereas the4th day of Decemljrr hi the 35th
year of our reijyn, and lon|f before the yearly
rents, issues rnd profits ari.sin[r, n:* due and pay-
able for or bv reason <»f the (;^enera1 post-olfice
within this Iclnffdoni of £o{>^land, for the car-
riajLfe of letters, before were ercrtetl and yet are
established upon the said most illostrious prince
Jame: duke of York and Allmny. The afore-
said Titus Gates the statute aforesaid not coiisi-
derinyr, Imt the ijootl name, slate, credit, dimiity
and honour of the said James duke of York and
Albany, our bnither, devising^ and maliciously
intencfinsr to hurt and detract, and him tjie said
James duke of York and Albany, our brother,
into the g^reat displeasure and hatre«l of us, and
ofthe peers of this kinpfdom of Kng^land, and
also divers other vcucrahle persons our subjects,
to bring, out of his meer malices and envy had
and forethought, the aforesaid 4th day of De-
cember, in the year of our r«*igTi ilieS5th, at the
parish oflSt. Martin in the fields in the county
of 3Iiddlesex aforesaid, uikui a certain discourse
then had and muve<l by and between the afore-
said Titus Gates and divers of uur liege people,
of and concerning the aforesaid James duke of
York and Albany, our brother, and of and con-
cerning a certain letter in the hand of the afore-
said Titus Gates at that time being, divers false
news and horrible lii*s of the aforesaid James
duke of York and Albany, our brother at that
time, and yet being ofiiie peers and nobles of
thia kingdom, in the presence and hearing of
divers venerable persons, publicly, falsly, mali-
ciously and scandalously sjiid an<l relate<l ; and
with a loud voice pubiish(><l in those English
wonis following, viz. * This letter* (the letter
aforesaid, so in the hands of thorafoi-esaid Ti-
tus Gates, as is h(>iorcsaid being, meaning)
* cost uie* (the said Titus Gates, meaning) * nine
* penci, and migiit have been brought for a
* penny, I niiniseli'tlu! aforesaid Titus Gates
nii^nning) '. Know noftody is the better for it,
^ but that tniitor Janus diike of York* (the
afortsaid James (hike of York and Albany
our only brother iin^aning.) And the afore-
said Titus fnrtlnT de>ising an<l malioi-
ouslv inteudi.ig the aforesaid James duke of
York and Alba!»y, our bn>th<'r, into the hatred
of us, anti the peers of this kingiloni of Kng-
land, and also of divers other venerabh- persons,
and our subjects to bring ; out of his nieer uia-
Uce and envy, had and furethouirht, tin; -itli d.ty
of GtHXMiiber, the year uln»>»-;'.iil, at the parish
of St. Martin in the ii-.'liis atiin-^uid, in thu
coimty of Aliddlesex afor<.*said, upon a ciiiain
other discourse then had and movrd by and
between the aforesaid Tiles Gates and several
of oiu Mege ]>ct)[tlc of and coDcerniag ihe
K
1^1] STATE TRIALS, 3ti Ch. IL iSU^^Praceedings httwem fJU D. of York [131
ouly brother^ meauiag) * is a traitor/ Aod tbe
aforesaiil Titus Gate* furtiier contririDg^ and
nialidou&ly iiiteuding: the said Jaicnes duke of*
Vork our brntber, into ttie hati^ of us, atid of
tbe great men of llils Liugdom of fingiaiid,
atid al^ of divers otber venerable peraons, anil
our tubjects, U> bring, out of his ineer in^ice
i^d envy, had and lorethoug^ht the aforcstid
6th day of December the 3' ear aboveaid, al
the parish of St. niiiriin iD the fields, in the
couDiy of xMiddlesex albresaidf upon certatii
otlier discourse at that time had nno mored by
and bctweeo the aforesaid Titus Galea and
divers of our li^e jwople, of atKi coucemiiig
the aforesaid James duke of York and Albany,
our only brother^ thvers other false Devrs aad
horrible lies of the aforesaid Jaraes dtike al
Vork and Albaiiyi our only brother, 1
that time and yet being one of the ooblasl
[Yecrs of tills k in js;dom of Euj^landi to the pf^
stance and bearing of divers venerable persons^
publicly, falsly and maliciously said, related^ and
uith a loud voice publislied ; to wit, ^ tliat the
* said duke of York M'as a baitor/ By reason
whereof the said James duke <if York and
Albany ) our only brother, iu his reputation^
honour and digtiity is Tery much hurt and
scaudalized. And the said James duke of York
and Albany^ the grace, good oplnioa and esteeoi
which we and otli<^rs the great men of tbu king-
doin of England before towards him James
duke of York and Albany, did bear, utterly loti,
and divers rumours and scandals between rery
manv uoblc« and peers of this kktciloiii of
England^ and other our subjects, by toe ooca^
i»ions alore^id, Avilhin this kingdom of Eng-^
Ismd, are arijiieD and divulged, and great scan-
ilalK and discork by occasion of the premiset
between huu tlie oioresald James duke of York
and Albany, and divers nobles and great men,
and other subjects of this kingdom of Em-
land, are ariiven ; and daily more aod more in
the like may arii>e, to the great disturbance of
the peace and public tranquillily of this king-
doiu of England, and in contempt of us and
our (government of this kingdom of England^
and to the ^reat scandal and grievance of htm
James duke of York and Albany, to the da*
niLi£;;eof him the said James duke of York and
Albany, our most 'dear brother, 100,000/, ; A$
he then said, mid thereupon m our court be-
fore us it was so pr(K:eeae<l, that the aforewiid
James duke ol' York and Albany, our only bro-
ther, bis damii^cs against the said Titus 0*«**
Ijy occaeioti of the premises ought to tei
ilut because it is not known to our court I
tis, tvhnt damages the aforesaid James «
York and Albany, our brother, hath tui
as \vell by occasion of tlie premises, as
costs antfchaigea bv him about his suit i
bcliair expendetl. 'therefore we com man
that by the f»atliB of good and lawful tt
your bailiwick, you diligenlly enquire wjj
mages the aforesaid James duke of Yo
Albany hiith Husiaincd, us well by oocai
the prrmisLs, a* fur his costs and chaq
him about bis suit ui this bebalf, ex
aforesaid James duke of York and Albany our
brother^ and of and concerning a certain lettei"
in the hanil«j 0*' the aforesaid Titus Gates, at
that tiuje bein^, divers other false news and
horrible lies of the aforesaid Jame^^ duke of
York Jiid Albany, our brother at that time,
and yet l>elug one nf the tiobles and peers of
this kiugdoui of Eugbnd, and our only brother,
iu the presence and heanng of several venera-
ble |>crsans, publicly, falsly, mnliciousty and
scandiilonsly said* related, and with a loud
voice published, viz. *■ Thij* letter* (the afore-
said letter 50 in the Imnds of the aforesaid
Tiius Gates, as is bcforesaid btfing, mean-
ing *■ cost me* (tlie aforesaid Titus Gates meau-
in^) * nine pence, and might have been afforded
* Hir n penny, 1' Jliiiisclfthe aforesaid Titus
^^tcs meaning) ^ Jcnow nobod} is the better for
^ll, but that traitor James duke of York' (the
kforesaiJ James duke of YoiK o^-^r **o]y hiother
ncuniiig.) And afterward:*, to wit, the 5th
av ol December in the 35th year above*
aid ; tlie aforesaid Titus Gates further devis-
ySi^ and maliciously intending the said James
|duKe of York ar^l Albany our brother to scan*
dali^Ke, and into the furthei dls^deasure and
batred of us, and of the gicat men of tliLs
kingdom of England, out of his meer malice
untfcnivy, had and forethought, at the parish of
HL Martin, in the lields aforesaid, in thtf county
^ Middlesex aforesaid, the said fiflh day of
December in the year abovcsaid, upon certain
rc*^' iirse of the said James duke of York
, divers faUe news and horrible lies
^oi 4 1 1 ; J M r. said James duke of York and Albany,
li^ubllely, tali ly, and mulic lull sly said, relateil^
land with a loud voice published, to wit' That a
» letter in the hands oi' the aft^n »»aiJ Titus at
* .that lime being, cost him the aforesaid Titus
*. nine pence, but might have been brought for
^ one p^nuy, and tliat he knew no body to be
I* llie belter forit^ but that traitor James duke of
' York / And th e a fo resaid Titus Gates furth er
^cotitiiviifgand maliciously intending the afore •
itid James duke of York and Albany, our only
r, tuto the further displeasure and hatred
^ and of the great men of this khigdom of
and also of divers other venerable
J persons^ and our suhjccls, to bring, out of his
MDeer malice and envy, had and forethought
L the 6th day of Decanl>er, in the 35lh >ear
laboiresaid, at the |>arish of St. Martin in' the
Ltelds, aforesaid, lu the county of Middlese:!^
[afore^id, upon a cenahi discourse at that time
I'liad and movetl by and between the aforesaid
I Titus Gates and several of our liege people, of
I And conceniing the aforesaid Jamc!* duke of
► York and Albany, our brother, lUvers other
[ la'se news and horrible lies of the aforesaifl
I James duke our onJy brother, at that time, and
L yet being one of the nobles and peers of this
[ kingdom of England, in the [»rcsence and hear-
I ing of divers venerable persons, publicly, falsly,
[.mahciously and scandalously said, related, and
> frith u loud voice puldkhed in these English
[ wordi^ following, to ml* the duke of York V(tlie
dbresaid James duke of York and Albayy, our
England,
idlllBB i
>3
STATE TttlALS, 36 Charles II iS&i.—and Titus Oalei.
^^^■llie inquisition whkb tlicreupriti you shall
^^k. ^<ia ibftU hare beiore tis ai Westminster
^pWedonsdiiy next after ihree weeks of tLe
^Wy Tdinily, under your «eal, and the seals of
ihcm by whose oath you take that inquii^ition)
flistjoctly aod openlv you send^ and this writ.
Teste wO^OTgGieflreries^ Knii'htand Baronet,
^ Westminster the thirtieth day of May, in
l]ie y ear of our relg-n the thi rty ' Kt?ct b .
" Ri. Sifift, Henlev."
Ifou ftre to (Inquire nhat damage hi^ royal
fcyhiifM tbe {lUuDliir has soi^taincJ, by mvmiA
4ilbe |ir«0U9e» ; ss also, w hat cost^ he has
Ittiti ttUMSUlL
Jr. BMt$e$. May it please your lordship,
K)fr. Hlien0^t ead gnitlcoien oftlie jury,
I roryai hiij^hness the duke of \ ork is plain-
I aod Titns Gates is the defendant : and
, m an arlioti of tr^spas^i and contem[itj
(ted upon the statute of Scandal urn Mag^-
I wbenmi bis royal hig'hiiess sets forth,
i 8ucb a statute \ras made, prohi-
; standering the great men and peers
^dom, and the plaint iff being the
brother, and a peer» the defendant
CHtrse between him the defendant
other persons, aljout a letlvr that
at had then in b« hands, publicly,
TUfith an intent to scandalize tfie
f, ffpoke these English words : * This
neoniDg the letter then in the defen-
'«) • cost roe* (meaning the de-
pence and tni|nrht have been
a penny j I (imraLiing" the defcu-
nobody is the litftter for it,
lor James duke of York ;* inean-
tiC
D, this is not all, the Declaration
ftaoa ftirther, and says, that the ilefpodant
TttEmliiig further to vtWdalize tlie plaintiff, the
^of Efert*fiiber in the 35th year of this kings
ii|mi a fi:^.-i^"«.«.^> hiid aud moved by and be-
taatu h iidnnt and ^onte other per-
■Uki, in k , 11 CO of divers venerable per^
•Boa, add tiicse words of the plaintiff: * The
*4ake tif > Hrk' (meiuirn^ the pliiintiff) * is a
*1Aiilor :^ aud this is Ifdd to the plaintiff N
kma^ of 100,000/. : the defendant has not
pluded, atiil the plaiT>tiff has si^^ned his jtnlg-
Aot; a»d now yon, t^ntlernen, are to enquire
«f the diniag^es.
An. Lien. (Sir Robert Sawyer. I You ob-
ferre, ifentlemen, the words are aelcnowlcd'^ed
by the dciendant's; (K Ihuit, and n<*t pl'^fidinu" ;
i»lbatr^' •^ ^«^ *' «i * f.-u iso^netl 1)^ him, and
foa are of the dnnmtr«LS : ^m\y
tbiiik% : I I niitliiny' to iKi sarilfor
Ibt ag^raYAUon of ti^em, they ure words oftlie
fatebcat nature, in lespeft of slander and scau-
m, that can be »[H)keu or th(»t*t;ht of, uccusin^
Mm of treason. We lihull only eall yon some
wteCMMSi to prove tiii^ way of discoun;e to be
ftlicsiiitint habit in all plai-es. and among all
aod eom|» uiH the
Dent, ami y myul
ibe pkUiUi , ^1111 M^*'^^ yfii Will, I
know, ^Te such damages as may be fit to re-
pair the plaintiff's honour.
Sol. Gen. (Mr. Finch) We will call some
witnesses to give > ini an account bow he Uiies
to treat the jdaimiff in all cmnpnnieSt cod wc
shall be^in with Mr. Siiuth. And the truth is,
the proving ot the wonls, will dcnionstrate iho
malice of them ; and the manner and c-ircum-
stances of speaking, uill make them appear to
be such, as ueeil nothing' to be said for their
aggravation at all. Swear Mr. James Smirh,
Under- She? iff\ The evidence that you shall
give to the shprlffs and the jury, sworn about
the matter in question, shall he' the truth, the
wljole truth, and nothing but the truth.
Siii, Gen. Mr* Smith, pray will you tell the
court ami the jury, what you have heard the
defenfhiTit Oal essay of his royal highness
jSwif/t. At the last Westminster narhament,
as I was sitting in a coffee-houne, I saw ^|r.
Dates, he had a letter in his hand, and he said,
* This letter cost me nine pence, it might have^
* l»een brought for a peony, 1 know noboily
* that is the belter for it but a traitor,* to the
best of my remembrance he said, * the iluke
* of York/
Att, Ocfu Swear Mr. Pennistnn IVhaley*
[Which was done,] What words did you hear
Mr. OatM sav of his royal highness ? '
Wfitiiey^ iHie lime was either tlie Easter or
Wliit?iuntide after sir Thomas Gascoigne's
trial.
Sof Gau What were the words you then
heart] him !;ay ?
?f7m%- It was at the bishon of Ely 's table ai
Ely house. 1 had received the Nacrament at
the cbapel there that day, aud so had thi^
Boctor too ; it was upon- Easter- day or Whit-
sunday, 1 sup{K)!<e, becsmse I never useil fo
receive the Siicrament here in town, hut one
of those two times, and Dr. Gates and 1 were
sitting there, and some discourse happened
about sir Thomns Gascoigne*s Trial, aud he
fell very foul upon the jury, and said, * They
* were a contpany tif profligate villains* (or
some such e\pre$(<rions as he was wont to use)
and said, * He would have them attainted/.
Then said 1 to him, llnctor, you are a good
man at a matter of tlict, hut, I doubt, you are
not so at a matter of law. Upon that, we came
to some high u onls about that and other things,
aTvd among the rest of the discourse, he said,
* The duke of > ork was a traitor/ Upon that
1 s:iid to him, Ihictor, you lie umler a gredt
error in that, I suppiwe, by u^istaking a rtta-
tt'.tc made against popery ; says l*e, * No
' matter for tlkit, I say he is a traitor.' Then
there were some other ilisenuracs happened
afterwards, and I began to reply, aud growing
both of us pretty wanu, the l>f>ettir called to
his two men, his luyinudons, that a'^etl to be
alu nys with him, and iollow him up and
down : said 1 to him, Nay, Doctor, you need
not call your men to vour us«*istance, there is
n<[ ' '* • ' v(»u ; do you think the
It [Hit a protection good
eoni. ;:,, „a Einv iwiY iiiat comes here ?
i35] STATE TRIALS, 36 Ch* IK iSU^ProeeB^theiwemthfD.o/yWk [136
X. C J. Where wai* tliiu. Sir, pray do you
fay ? — Whaley. At the bbbop
X. C\ X VV^as tlie bishop tbere, then ?
Whaky. He vius at ibe table, hut at a great
pdistttuceirom tw» the Uoetitr atid I sat at the
[lower eml of tlie table. Aiierwardii I bt^g^ffd
kibe bt^Unp of Ely^s pardon^ lor lining' so Wt
Lftiul liiud :tt his tubte ; bay» ibo bi«iho|) to me,
t ■ i I bank you kindly for it^ none of us dare talk
l' Kidi bull.'
X. C. J* Aod tbia you say was at dintier
oftrr till' Sacrament w «k over*?
W hairy. Yes, it waa so.
Mr. Softh, Tti«ii swear Edw. Johnsoo.
[Wbicb WHS done.]
JH, Grn. Mr, Johnaont Pi"ay will you giv<;
f lite court and jun* an accouul, Vvhat tWoursc
r.youhtt^e beawJ from the dctendant, Mr. Gates,
I a^a)u<»t the jiLinlitY*
Jghmon, Upon the ?3nl of Aupist, 1680, 1
^ met Dr. Ofttr^s, auti said, i^ood* morrow Doctor,
[ all tilings will 3^0 utll xiitw
L X. C, J. You meati him tljey call Dr. OatcB,
F ) aupposv.
L Johnson. Y'es, they usied to call him so;
Lsnid 1; ^oodriionow Doctor^ all thitige will
r*^o 11' 1- I'i'v, liir \Uere ts a |tarliauient to meet
[tii« ' No,' said he, * not till York
I* is 1 1 ifcvd or ban'^cfl *, hut of tlie two,
Mi^iiigtu^is liiv iUtC!i»t for him.* Said], do
Dot faik K*s l>i>c!tor : my^ hi* : ' I speak no-
j* tbiug btii^b;*! ii true ; be has a (^»od bro-
I • ther» but he takes all the (Niuntes in the
^' worbl 10 liodo biiu :' «nd tbea tke Doctor
^'ftud tuylord Jlouard wiut away togetber.
Sol, Onit Hwear Jlandalt Bowring. [Which
I was done] V\ bat have you heard M\\ OdXcs
f fay of the duke of V ork f
I Bttccrivg, Abofil theujtdille of Oclobcr 16?9,
[U»ere were several penwus at dioner ul:h the
I Pocior.
X. C. X W hut Doaor, prithee ?
Bowrin^, Mr. Gates.
X, C. X ^Ir. Gates we know vcrj' well, but
p we do noi m» wvll knovv who thin Doctor is.
Bau>riitz* They iisid to cnll him Doctor, or
I sh«Mdd not have taken upoti me to give bttu
t the title.
X. C. X U'elf, Iff* Oh : there were several
I persons at dlntier vutb him, and uhut then ?
Boiiring, Tbv- '■ -- -led some discounne
ConcermiiLT bis t r^a.
X.r.X WIm: ..:.?
Buwrin^, At Ins lodj^in^^s at Whitehall: and
igcuihiivan Ibat waii tbrre^ siiid, Incase his
KiDyaj hi|L»liuess were a pujii^, how sdiouhl we
lik'SttPured, that iu rase be iHime Irt tb<* nieces-
rvion of the crown* he wonhl n«>t bring' in|K>ficry
•nionit "!» ? Then the Dotlur rL'plicd, * I would
r • not imvcyuu troidjie yo-jrNclf about that, for
I * he *»ball Ix' hunted before that lime.'
Atf, (Jin. U'IThI bai-e v«hi heard him say
»i)V where else ; al Foster- Lane, oranv oilier
place ?
Boivrirtg, Aller tbe^ertnon be had preached
S i\i Fo4rter-Laue church, tlte church war-
dens, and fionie of tlie parish, invited liim into
the vestry to drink a jjlass of wine-
X. C. X What r He niade as if be wmU
preach I here ?
Bimtitig. He did preach therr^ and then ihe
cburrh'Wardenii invilcd him to dinner; but
then be asketl tht^in, ' If ever any of ihcTii ba4
* dined with James duke of Y'lrk, al any of
* the feasts of the city, where the duke used to
* come stouietiuiGs ?' To which none of them
answering a word^ he replierJ, * He won
■ dine with any man that had eat with tb*|
Aud so wonld not go to dine with tli
went and diued at a private hrasicr's by Lowil
Wall.
L. C* J, An excdtent goepcl^preadier up
roy word.
Att. Otn. What b raster was that .'*
Biifftriug. Truly I do not well know
name.
Ait. Gtn,
Bmiting,
Sot. Gen.
Where did he live f
By LondonWalL
Then swear Mr, Fairfax. rWh
was done.] Pray, Sir, tell my lord and ttif? j
what words yoti heard this man speak of
n>yal hig-hne^^.
Fnu'fax. May it please your Jord&hip,
August 1679, 1 hup|*eued to com« into til
company of Gates the detendaut, upou the i
count of an eleclion that was to be of pari
ment-mcn for Grinstead in Sussex* by tht ■
meaufi ot one Auckland ; Gates wha to j;u doint
Uitlber in my lord Wharton's coach, and tbea
vie came tirsi to be accpiainted and aflerwardi
we frequently did eat to^ctb*T, ami became
very %vell acini ain ted. And in my lord Scro^^^s
lime, when lie was loni cbicr justice, there
wai» &omc prcseutmeiit intended to be hrouflbt
in by the ;,nand jurj- here at the lenm, agtmst
bis n>yal btghncjis for beh>£r ^^ l*up'''*< ^"^ ^^
cQjx\\\\^ to churchy nnil tins Gutcij viai* the
mniu profsecutor of it. He was u^trd oflt u lv»
coroe up to rne, aud speak to ine wireu he iiici
me ; and I was about tliat time watkin;:; iri tlu
couit thiit wa^ huilt up here for the trial ol (Ik
lords in the Tower; it was aOer that 1,1 .mI
jury were di&missied, which was done a iU\ : i
two before ihcy used to be d^smtri^d in \W it-
dinary course* and wulkin^f ibeN: I met iij-ux
and said I to him. Doctor, nuw you arc non-
suited, what will you do now? * Gh, sayj, b**,
* We will do well euiKJ^li ; thtre Mil# l»c a >tv.
* sions atkr the term, and there we \\\\\ u\ bim
* a^aiti ; iind we will have no more r<*}n»rd \\%f
* him, than if be were scavenger o< Ki nt-
' strem.* And upon that he ^as called nwaj
from tne, and he went away.
SiiL Gtn, 8wear Mr. Pbihps. [Which '
done]
Ati. Grn, Come, Mr. Phihpa, will vmt 1
quaint my lord and the jury, what yoa
heard Gntefi say of the duk*' of York ? .
Phi dpi. In or at Kiut January (1678) mxy^l
please your lord*ihip, J T*a»» in the com pan %
one DciU'(Hi* nt Gates'.^ hMlj^inRs at Whil
where Mr. OttJes said, * He hoped lo st^
* or nur master Jrimr ' fmcaniug the dn
STATS TRIALS, ^6 Chables U, i6S4.^tmd Tihu Oaiet.
[I
I siipfioiel * at Ihe
DOM s Atiii it would
lo^ldlil to uppear there,
Pmj virnl WM the occasion of this
cIIicniirsG of his
u\ him.
dflo io
8at ikp yoa
TV> •■ tW9, Mr. Dmooti and L
09W lame be to menlioti your
hmk fiMl any relation to \he aer-
iy lordf we had not; but he
i<T our masie]-, or your master; he
kiod of di^i-our^e as he used
think Uc Intends his
named your master
^ i oottkl noi iroagiuc! he did tnean
Tkeo twoftr William Ashlodc.
Ptikme.l Pray wilt you ao((uaint
y^km jory, whal word»i you have
mmk okI' bm ro)/al ULtrhness.
Mmy a pleaV your lonlsbi[i, in
- '■ '» -^ Trs
4 11 irtCHD,
• one morning',
an' J :, tivo of bis
,,,:,. II. „n,luirtle
, Jicaaid lie wc'ir ler
orin»1ic fluent :i*: ike
<! he WAS
h : , .1 , I beAr«l>
kX^ElAidirii > N bcu he was going
IJiflt, 1 h^ '0 to liim to vva^h,
MCily Kill ivvu 01 three i>\ery day to
tuni tt> drvss him. there rame in a
llMii ■
IBdbiiiioo of*i
ktl»r*cbo««n«.
r Jolm Mrnir. and on
hmi how
• m
irrh
lud
-,' - -- '^X'
1, tb<t eiiy of
Vork'a order,
1 a hand in it ;
w«*re to have
ill ihf honest
i iind thiss Ut*
• V, ma I
atOx-
iik, ea|i-
I M» kfcp
Ibru-
. -rt.. t; , . I son
hien
nd
* for he must nerer expect to suooeed 4o the
* crown.*
Sol. Gtn* Pmy who did he sAy was to hetid
the fon^es at Black •heath that yon talk of wete
to plunder the city ?
AihtiKk. * Th*^duke of York ; and London
* was fired by his order; and tins ht: would
* prove, if thf?y could hut get a parliament to
* tbejr mind/ ami he said, ^ They aboukl take
*■ away the Posl-Otfice from the ^ukc of York,
* and gire it to the duke of Munmoutli.'
Si>L Gtn. Then call captain Cressett, and
»wear liim. [V^Tiich was done.]
Att^ Gtn. Capt. Cressett, Pray do you r^
member what disctMirtie you hail wi\h Oatet^
when the duke went into Flanders, what he
said of his royal hifjhness !*
Cupt. Cresictt. It waa the last time the duke
went iuiu Scotland ««ith her royal highness, I
think it was in October 1680« 1 was commaml-
lhI tyvvr ni^ht to wait at the duke's lodgingi^
till a paper kIiouUI be delivered me bv my iotd
llochcsier; 1 stayed llitre till twelve o^cbck
at night, and not aeeini^ my lord come nut, I '
went away, antl came early next morniog;
And when the duke and dutchess went to ti£e
water at the privy stairs, I came down throuffh
the pjard' chamber, and Dr. Gates was in tbo
gullerv that leads betwixt that andthe^atof
when he saw me, 1 bid htm, good-morrow*
doctor, or he bid me, g'ood- morrow ; one €if the
tvio, I cannot exactly tell wiiich ; says be to
me, * You ^vill never leave till you ha?« hull,
* your rt'putation.' Why, what ig the matler
DOW, Doctor, said I, I hope my reputation is not
liunjjujwu so slendt*r a threacf, as to be loal
for my ^foiugf any where? Sayi* he* You have
* been nith James.* Who do you mean by
Jnmes, naid 1 ? * Y'ork/ says he. Surely,
f^d f, it might haie been the Duke of
Y orIv» or bis royal highness : no, said he, ♦ he
* is a Kiuical, a Papist, and a Traitor, and t hope
Mo live to see him hang^ed.' Truly Doctor,
said I, now let me §fiveyou a little advice to
govern your tongue antl ynur passions. I
aaauneyou, they will do neither you nor your
cause ^ooil , it may do you a great deal of
hurt in time, if you tlo not take care.
*So/. Gen. Cwl »ir VVil hum Jennings.
Alt, Gen Truly, my lord, I think we need
call no more« thouifh we have multitudes of
tliem, it is \i\s daily discourse,
L. C. J, Coll whom you will, Mr. Attorney ;
fitr though it be the last day of the term, and it
is an unusual ihingf to have a jury at the bar
' ii day, and moreunuiiuiil lo have them to
i*e a \Vrit of Enquiry here : yet in regard
Ml Mii'gi^atnessof the person that im concerned,
and the extraordinary nature ot the causae, we
have ordered it thus, that all the world may
H^v how his royal highneas has been abuseif and
daU^eed f
Att, Grn, Th
a p«jfr»on pretty
it, my lord, has boeft
d of too.
L, €. J, Ves, trtdy, tt is done with rtg«rd
to him too I for he has been an emiocait mftli
in bis way.
139] STATE TRIALS^ 56Ch.II. \6SX.-^Pr0eeeiingi htiween ike D. of York (Hit
Sol. Gen* Then swear sir WiDiam, Jenniags.
[^Which was done.]
Att. Oen, Now, sir William JcDDings, speak
QQty voa bear the qiiesticm, Wlmt have you
heard Gates sa^ of the duke of York?
Sir W. Jenmngi, My lord, at the time of tlie
sitting of the parliameBt at Oxibrd, I was in u
tarem there with Mr. Cranfieid, one of tlie
king's gentlemen-ushers, who seeing Mr.
Oates goin? aloxiff by the room, invites him
io drink a guss ofwine, there were a matter of
some eight or nine at the table ; there was a
little partition-curtain, it being a loiu^room,
and there was 8ome company Myond that cur-
tain, somebodv in that company named James
Duke of YorL, and the Kinc'*s health beinff
drank at our table, Mr. Cranfifld be^an a healtn
to the duke : says Mr. Oates, * Do not you
* drink York's healtli.' Why should we not,
says Mr. Cranfield, and a gentleman or two
more in the company: * Why,' says he, ' he
' has ruined the nation ; and if the <fcvil has a
* place in Hell more hot than others^ I hope
* DO will bestow it upon him.' Several ivords
past between Mr. Cranfield and liini u|X>n it,
and the king was told of it presently.
Att, Gen, Swear Justice Warcup, [Which
was done.] Pray tell what you know of this
man's discoursiog concerning the duke.
Mr. Watxup, My lord, I went into the com-
pany where sir William Jennings was that he
apoke last of, and being desired to drink a glass
ofwine with them, I did so, and they told me
what Dr. Oates had said there.
X. C J. Mr. Oates, Titus Oates you mean ?
Mr. Warcup, Yes, my lord, the room had a
partition by a hanging or curtain, and I was
first in the other company beyond the partition,
and there somebody uep;an a' health to his royal
highness the duke of York, tliis health went
round, and Oates was, it seems in the next room
and heard this health I suppose : when I came
into sir William Jenning8*s company Oates
was gone ; the company there told me what
Oates had said, as sir William Jennings had de-
A dared, they all agreed those to be the words,
*• That he had ruined or betrayed the nation ;
" and if die devil had a hotter place in Hell than
' other, hohoped he would bt-slnw it upon him.'
1 met Oates allcrwards, and askeii him why
he would speak Kurh irreverent words of the
Duke? His answer was, * \\v was a traitor,
' and was in the plot ;' and he told me, * I was
* a Yorkist, and he would remember me tor it.'
Ait. Gin. Did not tliat atiright you, Air.
Warcup, to have him threaten you so r
Mr. warcup. I had then an impeachment
acaiiwt me, and truly 1 think I might well be
jL C. J. Y'ou say, he owned the words they
told you of.
Mr. Warcup, They did all agree those to be
thewonls; and I met him afterwards, and
awked him why be would speak so irreverently of
the duke, considerioj^ he was the king's brother
and as virtuous a pnnce at trod upon the earth?
Says he, < He is a traitor, and in thepkrt; and
you are a Yoiki8t,and I will remember joa fci
It'
Sol. Gen. We shall only call one more, la
shew in what mind he continues to be, evci
since this action was brought. Swear Mr.
Charles Chapman. [Which was done.] Fnj
Sh*, tell what you know.
Chapman. My lord, I met Mr. Swift, thi
duke of Y'ork's attorney, when he was giMg
over, as he told me, to demand a plea of the
defendant Mr. Oates, and he desired me to gi
alone* with him, I did so ; and when we eam
to him, Mr. Swift told Oates the roles
out, and desired to know what he intended la
do, whether he would plead or no. Oilei
asked him, * If he were the duke's attorMj f
He answered him, Yes ; says he, ' I do aoC
* value the Duke nor his Attorney neither, I
< will plead as I shall see cause aocordiiig ii
* law ; I declare I neither love the Duke, wk
* fear him :' And so turned his back, and wif
ifoin^ away, and comes up again, and saji la
him, ' It may be i may be in for one bmidnl
' thousand j)ounds here, but it ever parliaBMil
' sit, I do not question but to htve somebo^
* else in my place.' Mr. Swift asked him to CB^
plain himself who he meant, says he, * Deyei
' come to trepan me ?' And away he went
Att. Gen. My lord, we have done, if the
jury please to consider of it.
L. C. J. . Is there any body here for Mr.
Oates, to offer any thingto lessen the^damageif
[To which noboify answered.]
Then, Gentlemen of the Jury, yoar 1
now is to enquire what damages yoo
fit to assess to his royal highness, by reaeonel
the speaking of the words mentioned in thedt^
claration, there being in tliis action judgmcat
by default obtained by his royal highneH ; ■■!
you have nothing now to do, but only to anew
to tlic plaintifl' such damages as yon shall tfahdC
fit.
Now, Gentlemen, though the nrlrnnn1td|fr
ment of this judgment (for so it is ineflhc^
being by default) be a sufficient confeMiOB d|
the worus being spoken as they are laid in f^
declaration, yet they have given you prooffl
the very words. ^
The Declaration is in an action
upon the statute De Scandalis
taking notice that his royal hi^rhn
great peer of this kingdom, and his i
only brother ; end that Oates the de
knowing him to be so, to bring him un
proach and calumny, and to cause diacorl ^
arise between the king and him, and I
him and other great men, did speak the
laid in the declaration w hicli youHiave
read, and which are these.
The first are, « This Utter' (Oates ha^
a letter in his hand) * cost me nine
* and might have been bn)ught for a pcni
* I know nobody is the better for it, hut tf
* traitor James duke of York.' This is I
over again with a very little variation, * 1
' letter cost me nine pence, and might hi
* been afforded lor a penny, I know janM^
'ATE TRIALS. 36 Charles It. l684.-^i Tttut Oatts.
[142
ii but llmlirmfiarjftaies dukis
purpo*' I ; they
Hji riC€S, a
rtotiOMMfttt
It WQfA ^•
* ;,v, Jake of
i lf«ilor se VI 01 ds too are
Irrittg" but in very
(i« ft traitor, nnd was a
I «aii«teiH!v* of tiic irorU« is tlie $ame.
ty, G<JtiUcme0, Thougli it is not
m loetHjon-p whKher or im Gates
I «iOfiK. mdi^meDt g-o
u tij fkt I law coofess
I Mt jo«u art? IQ eiiijuire wlmt da*
ir^bo ni N> begir€tlti> the plaimiff
vonls ; yet in as much as
•f AH extraordinary natiire,
lib fi>\ -s
iJtl . ■, .Mil,
iiol htcn u»wii beretoibre, ihut
«ir «fM|iiiry execuiofl at the bar.
b c^ciTttordifiar^, finch as has
mk M^r^ Uiiji a^j;^, Uiis C4)rnipt nge^
ftgpTi H'herejd ivc Ihe, and
Ofifiiyiry IVlfows^ the mere
q€ tm factious party, hare
to re^iroftch and caluiiuiiate
gwirfvnmtiiit, atid the greatest
iu it^ Dot «»purini^ even
li^ mm bim^ » 1><> i*- *>'xi m degfree
|||» I*" T awd royal
llKrefoTi A^Q 18 extra-
, so oiigrht the example to
«s can he, in order to satisfy
•ort of fellow tliis defendant
•o much aJoriLHl and looked
ye (if admit«tion, courted with
aa afTection, atid so, 1 had
'd atoong people that
tomnltiioas to the go -
i kff «i|^l l» be iiiad« pnbli^
hii tliii .hi be c
• bAr.ftri
wwiir-'ut
migbi be made a pii
ic exam-
cottnsel have
caavasacd
' ndatiU OA he Vms
tor Hoiu
wni cmtttm to he exectilCMl here.
lki» w » II this decUration
*^ in theniM'lre^ so
id n iirwcn, §o much malice
m^ ikai dwy need no iirgTttraiioii
BtBUBlYca ; mm luit *;'^^r -■ - it to go
#kevm tbiy Mv ta !»t ext©-
if Ik tui
tiiai tiji- 111
4aia4iiL iind
r.-d: yet.
ji iimre or
tJ, thai Ibia
abie* nay abso^
- hrrc and ^Te
lufBcion
(UvuvU'UUdlll
pWaly
tended with all the most uncbristiatt and uh"
chHrital>le4 as well as disloyal and disobedient
circunistaiiees that any Ailn^ con be, Mritli
design to Iniduoe and fusparagt^ a subject so
lo^al, and a person m i^reat and illnstrioua at
his royal highness.
As to the lifai ^vordfi, you have the first wit-
ness Mr. Sniiili, und he gives you ihisuccotmt,
he was in a colfee-house where he met lh#
deieudajit Gates ; and the dcirndant in a vain*
glorious hufBng sort of manner takes occasioti,
though none was ofiered him by any thin§^
spoken to him by any body, but only on set
purpose to express ais malice and' venom
a^iust the plaintiff. He takes up a lettev
that it seems c:ame to him by the post^ and to
(Ti^tify liis own malicious inchnation, and to
give it vent, he procJaitns, * This letter ensi
* me nine pence, )t might have been brought or
" affoi'ded for a penny ; and 1 know nobody ii
* the belter for it but that traitor James duke
* of York,'
^ vou see, Gentlemen T he takes hoM of
every little occasion, if he can but happen upoa
an opportunity, such as tht9 vras in an open
coffee* house, to wreck Ids mahoe upon his
royal highness. And sure there can be no
greater imputation of scandal brought upon
any man than this upon the plainUff. Thai
the first and greatest subject of the king of
England^s s^hould be taxed with the greatest
crime iu the la\i , disloyalty and treason to hiit
sovereign. And so at once not only chargeth
him with being perfidious to his only broSier,
against that affection which by nature he Is
obliged to pay him, and which all that know ^
any things cannot hut observe to have always
been extraordinary ; but also touches that
which is much dearer to him than his life, his
honour, by charging him with the foulest of
crimes, treason and breach ot* his allegiaiice,
which as a subject he owes to his i»overei^i.
And thus besides the defendant's confession liy
thisjudgtnent you have the very words ptoved
that are in the declaration.
The next witness is one Mr. Whaley, uid
tje LNVi>ti you an account of anoilier passage
1 cannot but take notice of by the way,
\v you what a wonderful Christian temper
thij> man is endued with. Mr. Whaley says«
that being at the bishop of Ely's house upon
a public festival either of Easter or Whitssun-
tide, (and he is sure it was one of those two,
because, says he, * I never use to receive the
* Sttcrameot in London but upon one of those
* two dAya ; and therefore I take it upon me to
' My, it WHS one of those two days that I
' he«rd these words*) Gates having/it seems,
received the holv sacrament at the bishop of
Ely 's chapel with Mr. Whaley that da v. W ben
a hoi\y would have thought, that if Qfr. 0«let
would have been believed to be so ^sarty and
pious ix protcslant as he pretends to be, beabould
nave reiuemhered that uc ought.
llie ProlesUkiit doctrine, to have left bektnd
at his spproftch to the altar, all malice aiid
com. Slid ill wiU and hatred to e? «ry body
143] STATE TRIAIS> 36 Ch, II. \6$4.'
Bui yma see ^Imt kiod of depoitmeat his
For tfter »ueli time a« lie bad been al the
saemnefit, bi; takes occa^n M^ithout any prO'
▼ficaiiuii to f'ttll f<Mjl iiuincxliatcly upon his royal
hLi;hi}es<« giving: hiai the name of a proflij^le
wrctcth* and tli^n parlicubrty liecoihcs totiHy^
♦ Th«duket)f Vork was a traitor.' This i^rn-
tleiitun beiii^ conccnujdj rs every honest anU
ittyal tiian ooortit to bt^^ oiitl 1 liop« every ^n^
9nf»j<.'Ct i*tj and ever W}\\ be, to hear so great a
|Jnt»ee^ tbe ktng^'^oitty liratbi^risa tradiieedanit
viMliifd, reproved liim tor it ; but so far w^^ be
'Uilii taking ili«* eim'fttion due to Lis extrava-
' ^Mit liingiie in u (ti'^rjmin*^ manner, tf»ut be
ptrcseDily (as th« genileman phrtij»eih ii) catl^
tiif his mvnnitbna, ivvo ftUows that he bad
along witu biiki, to eoine to bini ; upon m hicb
the genlkman vrm pleajsetl to &ay to him,
' Nay, good >Ir. Gates, yon n&fni not be in so
^ very much frar of yournelf as to eaU <br yoar
*■ luen^ nobody here intends you any hano.*
Nay ccrlaiiily^ Mr. Gates did apprehend bira-
selr to be secure from all manner of correction »
or he would never have been so impiideut to
tpcuk yuch words.
But you IV iH no doubt lake notice, as all tn en
dnuMtbuldo, of what an f^eelleni gt>8pel-(lt>i-
rit, what a delicate chnstiitn temper the mun
ig oit after, the receivtiija;- tite sjacrament, thai
"ftry maiming to cotue and belch out such ex-
travagant words of calumny and reproach.
And it seems this jMrson hail obtained to
ft)ake !»«cb a wonderful fijnife in the world>
that every body was afraid to speak to hiui ;
Ibryou hear what the witness say»when he
caaie to beg the bishop of Ely^s pardon fin*
heiDiLr^o loud ajid bot at his table ; the biscbop
gave hini thanks for jt» and told biro, ' None of
us daivd to sjieak to him.' 8ncb a cr>osider-
alile man bath be bpcn^ that he mi|^ht rail
against the king, and ilie duke* and the go-
veniment without controuL He was gut hi to
Rueh a |vost that nobody durst meddh? with hrro^
but he must have lil>t rty to say any thing of
any body. To what an height of ciflruprion
were we grown, that we could suffer such a
felkm^a hisoMice, at wliich no man living, that
htsanj sp^rk of modesty or loyalty lefl in him,
hut must ohiiih and tremble.
Theti th€^' produce to you one Mr. Johii9on,
who gives ymi an accounts that after some dis-
eom0f between him and tht; defendant Gates,
about the duke of York, he immediaCdy told
Johnson, that the duke waa either to be hanged
or liaubhed ; tt seems be was so ill a man in his
eye, but of fbe two, hanging was the filter tor
him. So the doctor shewetb what a wondertul
kindness and alTection he has for tiie duke, and
what thoughts he has of his great deserts.
Mr. Bow ring i» the next witness, and he
eomea and tdls you, that the doctor could not
he prevadeil wfth to dine with the gentlemen of
the parish of Foster-tone, becau!f« some of
them had dined with tiieduke, which he calls
dining with tbc devil. It seems he made as
Iboiipi ht wauM preach theT« to th«m, ha got
'Pr^tedingg httwan tht D, 4>f Ycrk [11
up into tlie pulnif ai>ij took a te^tt. aiid pre^
tended to preacn, and if he wooki h2ve|nxttcli-
ed accordmg to the duty of a church of T
land divine, he was by tliat to b.
not only obetUence and m&biiii ^
but respect to superiors, nnu
all subjects towiu'ils onu another ; and if 1
did preach it, h v^as wov^e in htm not to pn
i\se it, But you «ee af\er be bad prtiorniHt 1
painful laborious [irencbment, hH*t h*^
taken such a wontierfid deal
dtiitbl he ilul iu instructitigbiK
langUAge is in uoMwiar to a iivn uu njn
dinner by the cbiinoh wardens: ^ Hav^j
y u u dm ed w ii b Y o rk at the city f e»alir I
they fK)t ftosucriiig ; but being ^itently an
at {\iv iiiHx : tinent impudence of ihc'qii
* ^ ! would not dine w ith lb
b»ii It the deviL' It sef^ins 1
bigbni-ijs had been picitsed to honour
cieties of loyal men in the city of f
bis company at some ontertsiiu men Is tb
aud that is a great offimce to tlie de
and as for those that bad received tb
favour from bis btebuef^s, he takes
them as such wbon, ' ' ' Jher
drink wit U, for tm I ^ atid^
with the devil ; but ij.M....ji^.. . .
his great Avat aud wonderful c onf*«*m lor
proi4>«ta)it rclittion, broke up frutu ihc comp
^tould neither cat nor drink witlj iham,
cho^ rather to dint? al a privatt! brttsier^s i
Loudon- wall ; a pr«>pereT (dace in good
fur bim, than any such conversation they <itfei
ed bim.
Tliet* further to shew what mean tho«r;bi>
be had of the plaintifr, Mr. Fairfax be eomw
and testifies, that there being- Mime talk of i
preseutmeht i ' '. iiikei'
York by the u
with adi*;app*iii...-vM-. w ,».- . i.«i.-,.M.4i
him, '^ What be would do, for saysj^ he, '
* you are non-suitefl ? That is vou^
' happened not to obtain the ♦
•^ iri^Mtd :' Ob, saysOate-3, * ^
* that is all one, we will at him neat ^
^ and lor my part* I will have no mf»r»*
* to him than I would to a sr
and because they shouki see t : tn
bzs malice, and the low thoughts be ha
royal highneMi, as if it bad not bees
enough to have compare*! him to a
of Ijondou i^r ^V i^^tminsU'r, no, that wi
tion too bonoiuabl*^ for him in his th
but lie mu*4t nt'C*essarily be compai'cd to it i
veofferof Kent street ; which we all kuo
be one of ^e meanest, tilthievt, and most
garty parii of the town,
Tlie next piece of evifletice is, that wht€
gfiven by one Mr. Phdips ; and when lie <
to him. lie began to have some reHeciiuiiif i
the HouHe of Commons and thf tluke
* truly he did not doubt but he sltould sre J
' at ifie bar of tlie House of Commons ;
* woidd be no disparagentent to him to
* there, tor i!iere were a great many ipea
' there thai were as gt)oa niai or better
4
hut
Tilt
STATE TRIALS, 3d Charles U* l68*.— <inrf TOw* Oaie$.
\mfnUy ibts fancv of liis be wuuM
hi^ tttyik\ Ui^Uness ; for in cnse
itJ 00 tfiher consideration but as
fttiMitht krum- timi no peer of this
lb' ■\ a«v vipte or order of
1^ tn rome to their bur.
bid a luiiifi to tcikt? i»fr bisver^ |»rivilegc
e, ami it woubl be do Ir^seniDg of Uh
nee tbftl lloufo L;iii in it m^my
t»r m^n than tlip duke bimself. I
Me pariicuiar trie nils of
e 5Ir. Asblock^ ftnd be
<» he would engage all
, Slif- iiMK*^''* fk^TMin, be
li 1. nee
' to IT. A, ike
haS « ^TTttt baad mid conccni in the dismal fire
af Lcjififnn in !f/if\ that thereby be niig^ht
sukc I ru the rancour And ma-
^ Jjgof I in that dreadful lala-
^^uil vviih what haiidsotnc exore^^ou he
f.h ? » He Imid the ciiy of London, be
'i I we I* ill have him
^Haad for it, when-
: here hn ii*»toidv n personal reflection,
bci<niB ioditfnity done to his royal
but carries in' it a ^eat reflection
enil iiiHt«-KK liiiiisi^ If'iti 1 M < retalions t
Ibt t?i II' ^ (lut his
I mod VI ue alive,
(>. For
• <1 sbiwder
Atuuiajist)^ tbt *|aei/n, rnotber 10
nnd !m< brnther, by callirit^ bini
' ii in an expreitiion
^ du I a ttatore^ as is not
Tbr I to take
[146
• and yoit r to 1o«eyour reputation i
* y*niVti : VI .her'
8o that i perceive, if he will not be advis
by tbts'^gftillenuiu, he should lose all hit
ciedit ; aiid vet I (irt»suineit i« womlcrrallv in
the ndvantnj,'e <d Mr. Creaaett, to Iom* ibi
«^'edit be e^nild f ft by uny eharacters or coni^
iiieiuUtii>ti$fiiirb an *in«» a** be coubl jj^ive him, "
Tt kindly advised litri
tj tu > party by his |»]issiaii
and l!i\ < 'ij\ und told hhtit if
would tin *' at last. .\nd tndj
wn%\ I tbiur., .. . M ,i,^ ji.vrlv wore in bis con^
dition* and tfiadc to « mart* for the lari'^hneii
of ibtir »[ .t'vnps;^ I fliinit it were a tfood
com; of bis pr^inhecy, and if
vicii rn^ we sbonid be more at peace
And ue may without offence hope to see T
soonei% than what the defeudartt says be hope
to see.
The next is sir WHIiam Jpfinini^, who telb
se words itrto
Tbrti tmmn (
yvaan a^eoaiii, i
M tlkn <liaiDb«Bs ,1,(1^
vib^cdipUia rr M 1^-
■m b« met iiitii mv tlekinUh^ vvi^u i\:\i upon
Ml, ¥Vlut, v'.'ii liuve bi ( Ti with James j^ It
Wamk* he waa one of his iniimale tiequnintance,
iM very lAoailiar be ^a^ \rtth bis tK»me.
4nl m smo wotild hu^
' ,;'
he
ild CfMiltfl ibl one mar
. 0-
*ir,aiii br ' >
' ui his
mmlotii,
a i^ery
iMitnAltexu. ..
" ri^eant
W ilial favlbar i^
' i;i(aiD,
«l»lJMiie»? ^\
V- .li vifty
IimI tliai 1^ ^vr
itkUtion
to let biin
iMBW^IHt JatiH
Mt ; but
when the
diiid liicn, iii>d tuki him, *8nrc you
It tailiin' asy the duke of York, or bf«
^ivjil liitfliiiiiiB ;' tbi^n immeiliji^
IIm, br nhm out/ He » a P. ,
'•■iiart wad i bftpt^ to litre to ae*i him liADgcd^
you of a passage at the y at Oxford
which shews hi* wondcrl i.hI I'
tian temper, when a comjiji > or '
were met together to drink a plas
and were wishing h^ ' ' - ^ luc lu in«l
sacred nmjesiy^ Ins and I [10]
royal rainily, be wouiM ^.k l.* . ...it. ated t^ re-
fuse the glass, but to shew how ^londerlid \
Christian spirit be wuk of, and \n * «. i«f fn <■ Ms
true Protestant chanty (and I j
vtbo was one of tbu fJ^:t!!^o^ t» 1
uiay g'ucss at the tr 1 tine (lariy) be
crie«i uut, * Hu bast i nation, and
* there be any hotter pi.^Cii in Ueli than tnhcr, I
* hope the devi! will ^^re^^rve it for bim '
I presume ht^
besfiok^ of» fu
there is in bell
and who they
by doili in the leai
: ir'lbe words in ih
l^ail can he ; but
r>i' this man tbut ba
1 courted,
wircup, whotellsyonj
he wus nut tn tiie roma with Outes when the
last words were spoken ; bwt eoMting^ io tm-
rnediately al^er^ tbiy all tobi hint the aam
words oird bf Btlerwards* mectin;^ ifrlA f '
and K lim ihv bis indecent behaviouf'
und ' instead of any rernors^e or eon*
cern
hnvi:
li,, * 1 lit- i.ivuvi: It
^ pb»t ; and becaiu»eyou take hi» pari you an
* a Vo.L .1 ..ri,^ »v- •^■n Iff e%en wjth you \"
♦itai 1/ 8t* he ihreiiien
bim «< . . . .1 . ..^ : .. . uhy be. belia'^ed him^
self in such an iiMJeeent uiHoiier tovrafds
myal bitfboeMd^
The last nitn€«$, Mr. Chapraant k produce
to ?hew what mind he conti*>ues in. Alter nil
•^ past, and a body would bavethni^'ht \h
t by this time h:ivt' been broujfht to 1
consideiatioa atkdsnbuiiaaioutOBUtbiirity ; yet
1 J7j STATIC TRIALS. 36 Charles II.
3 Oil st'o Ihuf the man is. The witness tells
>"•!« >iure the lictiinniri^" of this term, the de-
t'uinticn heinj,^ dtJi>ere<l, and hy tlie uoursc
ot' thi? coint !jc ouy;ht to |ilvad witliin such a
limo, the attorney ^;<!Pt)i to him for a plea in
ordtT to mako his deft nee if he could in the
a lion now befrrc you, but he lets judii^ment go
by dcfiulc ; aitil so fur is be I'rom repenting' of
i> IijU he had formerly none, that he persists
in it, and tells him, Are you the duke's at-
torney ? Yes. ^\ ell, I rare not a farthing for
the dnko nor his attorney neither ; it may be
I iiwy be in here for liKM)On/. (and that I be-
lieve is one of the truest things be ever s|/oke
in his life) biU suppose 1 lie, I do not ilmibt
but when a parliament meets, a time will
como, w hen some other people may come in
niy plaec. Dut truly since he has declared
his hop<>s, 1 til ink it may not be amiss fur
us to declare our's too ; and for my part, to
1 oSi.— Trial of Thomas Roaeweli, [ 148
say I hope J shall never see such a parlia-
ment.
Mr. Unflcr-Shfriff. Lay your beads toge-
ther, gentlemen, and consider of your verdict.
They did so standing at the bar.
Uinlrr-S/itriff'. Are you all agreed of your
verdict ? — Onims. V\s.
Umhr-Shfriff. \Vho shall say for you ?
(fmiies. rt>rc^man.
I 'ndrr-Skfriff. W hat damages do you find ?
Sir Char/es I.n\ Full damages, An llundreil
Thousand Founds.
VuHir-Shertlf. Whatcost^?
Sir C' aria Lee. Twenty shillings.
Which Verdict being reconled in an inquisi-
tion intended, taken under the hands of all the
jury, u as afterwards annexed as the retuni l»
the writ of Inquiry .
309. The Trial of Thomas Roseaveli.,* a Dissenting Teacher, at
the King's-Bcnch, for High Treason : 36 Chakles II. a. d,
16'84.
23 0ct..\. D. 1084.
This day, being thcfn-stof theterm, Mr. At-
torney-General nioved the court of King's-
lK?ncli for an Habeas Corpus, diret ted to the
keqter of the Gatehouse, tu bring up the body
* " There ueretvvofamoustrialsin!Viichael-
lUiLS term : three women cunie and deposed
against Uosewell, a iVcsbyteriaii preaclier,
treasonable word:itliat he hud delivereil al a«>un •
vcnticle. Tlu-y swore to two or three periods,
in which liicy tigifjd so ix:ietly to«felher, that
there was not the smalli'st wariution in iIkh* de-
positions. liiiSfWc'll on the other hand made a
strong defence : hi proved, that thv uiiuosscs
were lewd and infan II >us p^rston^. lie pro\ed,
that he had always beiii a l<iv;d mau, cun in
Cromweirs days ; that ho prayiMJ coUNUntly
for the kinijf in his faniilv, and tltat in hi> s>'i-
inons he oftiai insisted tm the obli^aiiuns to
loyalty. And &i- for that .^( r:ii<':i. In u \ut h thr
witne:i>&y,Svor«.* he rteti\iTi'<l iIiom; v.mJs, he
shewed what his text was, which l!:<* wiuK-sscs
cuuld nut rememln'r, its tlicv ri n:eoiii«.r<d no-
thing else in his sermon l»esuU's the wnrds lh« y
hud d<>po>;cd. Tliat teM, and his siruu):! ujion
it, had no rehti<Mi to any such ma.ior. Scwr.ii
ivilnesses \iho hi-ard Iiie sti'inofi, :uul M>ni;.*
uho writ it in short hand deeUnd, he said iiu
such words, nor anything to that purpos<>. JIi-
uf}t.red his own uou's toprtAo this fartlur : hut
ii«) reutu'd was had to t!)ei!i. The v\ omvu i-.iuld
notpro\i' by any eircuiiibtiuiee that they were
at his me'v'ting ; or Uiat any {lerKun saw them
there on that day. The wouls they swore
against him were so gross, that it was not to bt*
iinagined any man in bis wits could express
himself so, were he ever so wickedly set, belbre
of Thomas Rose^vell, clerk, to be arraigned
upon an indictment of High-Treason, found
against him at a late session of Oyer and Ter-
miner, held at Kingston in the county of
Surrey ; and it was desired returnable tu mor-
row, but was not taken out till that day, return-
a mi.ved ii^i.-ionibly. It was also urged, that it
was high! V inijirobahle, that three women could
reincnibti' i;o long a peritNl upon one single
heai-iiig ; undtiiat thi'y should all remember it
so exactly, as to agree; in the same dcpositioD.
He ofiuri'd to put the whole upou this issue:
he would pronounce a |K>riod, as long as thai
^^ hich tiu'v huil sworn, with his usual tone of
voice uiih'whirli he preached, and tlien leava
il to till 01 to repeal it, if ttiey could. I set dowB.
all this defence more particularly, that it may
appear w'oai a spirit was in that time, when m
\ei-diit could be brought iu upon sucbanevi-
, deiife, aiid against such a dtrfeuce. Jeflerica
. iirgrd the ii<aiier with his onlinary w
! hcincnee: he laul il for a foundation, that all
|.rca«'hing ut e<iiiwi.t'<'I-s was trc>asonable, and
I il;:aiiiisi:ii:;l.iiod !;|itKsftii(-jnry to believeany
I evif!o:.ri \t't'aiM>Lvt>;- upo;i that head, and tbal
I luTe wen- thi>i: |M)siitve concurring witnesseSy
j s(i t':e jorv iii'ou<;iii him ui guilty. And tbcM
I >\:iNa hiuimefiil rej-.-iring upon this. It WM
thonirUt, n.'vv c>-n\uiticlus would be all sop*
prrssfMl i.v it : since any person that wowd
wiinrsstiiai trrasonauh u<irds wire delivered
attUiin wouM iu- b»^'lievrd. how improbable SO-/
LMv It miulit be. ilut wiien the importanceaf'
the woitls <-ame to be examined, by men learn*
*'d ill the law, they were fonnd not to be treu*-
sou by any staluti'. :So Uoscweli moved for"
uii arrest of judguu*nt, till counsel should btt*
hvard tu tliut puiiiu, uhether tlm wordtf wan*
IW]
STATE TRIALS, 36 Chari.es II. l684.— /<;f' f/ig-A Treason.
ri5o
aUt* irnvtcdiale^ and upon Saturday it was re-
ancd.
DieSabbati, 25 Oct. 1681. B. U<^g^is.
DoMiNus Hex vers. Roslweli..
This day 3Ir. Rusewell was brought iifioii
tbe Writ of Habeas Corpus, to thu wkv of the
einftol'Xiii{r*s- bench, and was thus arraigned :
CL tff Cr, Thomas Rosewcll, hold up thy
fand. ' [Which he did.]
**Thoa staudest indicted by the name of
T^ooias Rosewcll, late of the"^ parish of Ro-
Aoiuth, in iLe county of Siirre^r, clerk ; For
te tbou, as a false traitor, against tlie most
■OEM and most excellent prince our sovereign
MCbarh*s the Second, by the grace of Ci^,
Imp tf En^nd, Scotland, France, and Ire-
kJ, defeDdcr of llie faith, dec. thy supreme
mi mural lord ; not baring x\w fear of ( Jod in
tfijbeart, nor weighing the duty of thy uUe-
|iuoe ; but beio^ moved and sciluceil by tlic
MUgation of the devil ; the cordial love, aAd
toe, due and natural obedience, which a true
lad &ithVul subject of our said sovereign lord
^Idngdotti, and of ri<;ht ought to b«ir to-
midi niin, ailojgether withdrawing ; and con-
lirii^ and intending to distiu-b the peace and
fmuDoa tranquillity of this his kingdom of
3 or not. In Sidney's case they refused
Agnal that, ui Jess he would first confess tlie
flhO. And, though that was much censured,
jtt il via more doubtful, whether council
«|^labe hourd after tliejury had brought in
^fCite. But tbe king was so put out of
eamtoBBittwith the many stories that were
%n«fbtbin of his witnesses, that the attorney
liiid orders tu yield to the arrest at'
t\inu\r\\ it had been more tu the
j'ilidiioar to have put an end to the business
bjrapaniun. It was thought a g«>«)d poiul
ttwhK:h might turu to the advantage ot'
j£ct, to allow that a point of law nii^'ht b<'
' afttr conviction. Tbe impudence ut'
terdict it an the more shameful, since,
we had a popish successor in view,
a precedent uiude, by which pusiiivc
swearing to any thing as buid in a
were to be believed against so many
itie3, and so much proof, to the contrary,
might have been at another time very
to the ilergy.*' Burnet's History of his
Times, vol.'l, p. yj7.
«* RoMewpll wa« attaint, by verdict, of hiv:li-
■MO m I»ndon, and luving made hi-i peaiv
ilk the iyird Chief Justtice, moved by his
to arrest thi* judgment for an emtr td'
in the record. Tlu Lord (.Mi icf Justice
not €*onuin himself, or be concealed, but
rt'jiiict^t at lilt! accident, and was
Mtii with lairth and laughing ut the king's
mmti. Hut the serious obser\ ation was that,
Nrhc had urged the proseeution of Ufisewell,
m fitiilt »bpt, he should so merrily discharge
u" North** Life of liord Keeper Guilford.
^%f. 107, avo edit. of ISOti.
England, and to sow sedition and rebellion
within the kingdom, and to depose our said .so-
vereign lonl the king from the ttile, hono..r,
and regal name of the imp'jrial crown of this
realm, and to bring our said sovereign lord the
king to death and final destruction, the 14 th
day of Seplemb<;r, in the 36th year of the
reign of our said sovereign lord the king that
now is, at the parisli of Itotherhith aforesaid,
ill the county of Suney afort»said ; didst pro-
pose, compass and imagine to sow sedition, and
raise rebelliim a»ainst our said sovereign lord
the king, within this kingdom (d* Ivjgland, and
to make a miserable slaughter among the stih-
jects of our siiid sovereign lonl the king, and
to cause our said sovereign lord the king to be
deposed from the regal st'ite, title, and honour
of the imperial crown of this realm, and to
put to death, and final destruction, our said so-
vereign lonl the king; and the government ot
this his kingdom of England at thine own w^U
and pleasure to change and alter ; and the
state of this king^lom of England, in all its
parts well ordered and constituted, to overthrow
and subvert ; and to levy war against our said
sovereign lord the king, within this kingdom :
And tocoiU[dete thy s^iid most wicked treasons,
and traiterous puV(Mi>t^i, and imaginations ;
and to raise discord between our said sovereign
lord the king and his people. Thou the said
Thomas Roscwell, the atiiivsaitt 1 ith day td*
September, in the .'ttjtli year aforesaid, at the
|>arisli aforesai<l, in the county aforesaid ;
falsly, unlawfully, setlitioiisly, maliciously and
traitorously, in a certain unlawful assemblv,
and in the presence and hcaiiiig of divers suo-
jects of our said so\ er«^ ign lord the king, tlicn
and there unl'ii\ifull) ar.d seditiously, and
against the laws of this land, assfuibleil and gn-
llu;red tojri'iher : <lidst speak, assort and de-
clare, *Thal ilu- People' (m«*aningtlie subject*
of our said soxeieig'i lunl ilie king), * made a
' Hocking to uursiiitl sovereign lord the king,
* upon [)retenre of healiuLf the king's-c\ il,
' whirli he' (uiraniiig our said sovereign lord
the king) " could not do ; but that we' ^ni(;an->
ing thyself, and other traiit- rous |)ers<ius, sub-
jtx*ts of our said lord the king) * are they to
* whom they' (meaning the subjects ol our
said lord the kiiig) ^ ought to tlock, bec'ause
*• we' (uieaning thyself, and the said other trai-
terous persoi^) * are oriesJs ami prophets, that
' bv iHir prayers o.in heal the d<doiu*s and griefs
* of till' peo|)li.'. \Vi;' (meaning the subjects
of our^>aid seven iijn lonl ill;* Ling) * havt? !iad
* two UH.Krd kiiiy>' (the most serene <.'liarles
till' fi;-st, l:.iekinf. of Kiigland, and our said
soveriiyn lord tlie Linic that n<iw is, nifaiiinif)
' to.«;ether, who liavi* |KninliU'd pupcry o enter
* i.i ursiler their noses i' whoi;i iusi-aiiinvr the
said ChurlfN the first, late Kiiiir ('f KngUuHJ,
an our said covert i<;n lord ihtr kisii** that now
is) ' we can resemidc to no oiimt person hut
" to iiio.»,t wicked Jeroboam. ' ' Ai:!! ihal if they,
(meaning the said eviUiiisposiMl |u;rM»ns thi-u
and there, so as aforesaid with thee unlawfiiHv
assembled, aud gathered together) ^ \^ouIl1
I
151] STATE TRIALS, 36 Charles IL iC84.— Ti iW of Thomas Rosewell, f 158
Ros. I liumbly thiinkyou, my lord; Ihope
you M ill pardop. my weakness and igtionnoe.
J crave tlic favour to have a copy of my in-
dicimcQt.
Just. Hoi. We cannot allow it. Ynit cannot
lie it^iuiraiit of tliat, it Las been denied in many
cases of late.
Just. Wfifcot. We cannot grant it, eioqrt
Mr. .Attorney will (^onsent to it.
Just. HoC. ^'i)u must positively say {j^nilty,
or nor guilty. Sir Samuel Astry, caH him to
his plea.
CV. of Cr. How sayest thou, Art tllM
Guilty or not Guilty ?
Just. IlnL Look\ou, 8ir, you shall nolAt
stnutLne<t, vou «hall hcve convenient time t0
coi^sider what ili;fence } on bu%etomake. la
i\v: mean time, we ha^e nothing' to say, but to
know of vou what you plead ; Guilty or not
Cluiitx-.
Al'f, Gnf. (Sir Robert Sawyer) If you de-
sire to have the words rt:ad again to 3*ou, yoa
Khali.
Just. 7/()/. Ay, with all our hearts.
Htnt. I thank you, 8ir, and my good lords. I
desire, if vou please, to h«ve it read in Latin.
Just. tioi. Read it in Latin. [Which wu
done.]
C7. of Cr. TIow sayest thou, Art thou Guilty,
ornot Guilty ?
Jui^t. BoUoit'ttif. Now what do yon say ts
it. Ani you ^u'dty or not grilty f for iiidcel
wc cannot spend our time ini [Pertinently, wi
have other buMness. Here is a qi!estk»a yo«
ou^flit to niiike a direct an^ncr to one way or
othrr.
Ruscwefl. My Um\ I liumbly cro^ne the fii-
vour it may hi* it ad once more in Eng^lisb.
AtL Gen. Sir Snna:cl Astry,iTa(i the words
without the innuendos.
Cl.ot'Cr. (Reafls.) ' That the people made
" a flockinq^to the king, upon pretence of heal-
Mng the kini^'s- evil, which he could not do;
< but we are tliey to whom they ou;;lit to flock,
< because we are priests and prophets, who can
< heal their prriefs. We have now bad two
< wicked kings together, w ho have permitted
* Popery to enter under their noses, whom we'
* can resemble to no other person hut to the
< most wickfHi Jeroboam : and if you will stand
* to your principles I do not fear but we shall
* he able to overcome our enemies, as in former
< times, with rams horns, broken platters, and
< a stone in asHng.'
Jnst. Uolhtcay. Now you hear your charge
both in l^atin and English' ; pray, thcrelbre
let the court know what you do plead ;
gnilty or not guilty to it.
Hmcwt II. Not Guilty, my lonl ; and I Ueas
mv ( fod ii)r it.
'Cf.of'Cr. Culprit, how will thou be tried ?
Rmni'fll, By Gwl and my country.
f 7. ofVr, God send thee u good deliverance.
Rv^'fucU. These* are things that my soni
abhors, 1 thank my God.
Att. Otn. Mr. Justice Ilolloway, will you
please to appoint some time for his' trial ?
* stand to their principles «liou' (im.-anin^ thy- |
^e!f) * didst uj It «('ar, but they' (meaninu thyself, j
and the said ev il -liisjiosi d persons) * would over- '
* cwiiie tlieii- enioiies,' (meanihi; our said sove- i
reljiifn l<»i-d ilij' Uiiiji and his subjects) ^ as in '
* furnuT li-Mis, with raois-horns, broken pht- '
* ti-rs. (iiKi :i st Mie iU a sJintf ;* against tii*^ dmy .
of tijy :iiK*;j:iai::- », «jja!ii-1 the pimec i»f our
Ro»e.»ii>ri loi-.l rlH kinsy. Iii> (loivo and digr.ity, '
and a'lfJuiiM i!i.' .-erui ot ilie siaiuti in ihat luse '
ina-li- an! )<ru\i.Kd.' " How >ayst thou, Tho- '
mas R:iAt'we]l ; Art :hon -^uiiix of this High- |
Treason w I iereof thou siimdf^? iin'icted, and'
bust h(s n nou- :irraigncd, f»r not (iiiiliy ? j
Mv. Kuiucll. M\ I'iid. ! hunildy crave the i
favt)ur lo < ;., ;'.k a \sv\\\. * !
Ju-!. Hri/caij/. Uhat is it you iv'ould say, '•
Sir!' V«.n mi>-l pie::d. ' ' \
RifS. .My lord, i:iy c'l-irj^^c is very high ; anil ,
IbKss mvGod, I am not eonsoiuis to invstif
uf RMV ifuiit as to those tbinjfs tl>Ht you have ;
hearJ roril, and el:ai"fvd ii|iiMi me I
Jnst. Jfti'. if vou «ii| pbad, JSir, to this
indictriunt, so ; tliat is s.ll )ou have to do now.
Itiif. My innocence, is my great comfort
under the (iod of heawm, who know.: they
have laid to my chan^o thing*, that 1 know not.
1 do protest my abhoiTcnce of these things al-
ledge<l to be said by me against my sovereign,
whom I honour iii my heart, and* daily pray
for ; I bless m v Goil for it.
JwHt. HoL I hope then your innocence will
Ci ear you. l>ut we have* nothing to do no%v
Init ti» take yonr answer to this question, whe-
ther you are guilty or not giilty, of what you
stand indi<-tr-d fcirV
jRoA. I liuinUy vmvt: your lordship's pa-
tienc*' a little. !*ray. my lord, give ir.e leave —
Just. IJui. Sir. you will bj lieaid whatever
you have to say, at the tim*? of your trial.
Rox. Pmy lu'ar nie a few wonU, my lord ; 1
wouUl not tiWpass upon your j.alicnce*; 1 have
hut a few words to suy.
Just. Walcat. You must plead, guilty, or not
guilty, lirst.
RiKs, My lord, I bc:$eecli you
Just. Hot. Sir, we cannot hear you in a case
of so great weight and moment as this, till you |
have pleaded. Vou will have time enough at !
your trial to mnkeyour defence; and all we'
can do now is to taiie vcur pteu of guilty ornot
guilty.
Ro$. ]\Iay it please your honours, you arc
sensible of iny giinit weakness and ignorance in
matter of law, and things (»f this nature ; I !
therefore Immbiy beg I may have counsel to .
assist me in this bu^inr.NS. |
Just. Walcot. If there beany tbingof matter !
of law doth arise upon your* tiial, the court
will assign yon counsel.
Just. Jiol. We eanno! asMgn you coun«;fl at
fircsent, for we ha^ e nothing to assign it upon,
f there do any question of law arise in your
case, thenthecourt will (as they are bound to
do) take care of jou, that you siitrer no preju-
dice tor want of ihe a*»ista*nct^ of counsel ; and
in matters of fact upon your trial, the court
are of counsel tor ^ uu.
I5SJ
STATE TRIALS, 36 Charles II. l6S4^or Hi/^ Treas&n.
[154
Jmtice Highway. Wiial time would you
bare, >Ir. Attornev 7 When can you be ready,
Mr. Ruscwell ?
RMewcfL ! dpsire, my lord, it may he on
tbe Idth of November.
Just HoiiauiaM. What day of the week
iitfaat ? - M r. clerk, U|>oo WVdnesilay .
JiBt. Holiomay. Are theru no ar^^umciits
apMinted for that ilay ?
tkrk. There is a jury of Northam[)t(iDiibire
he that day.
Jodt. HMowtijf. Tlien it cannot l>e t!)at Jay.
Rotewe/L Then, if it pte&se your honour^s,' I
me it may be tlic next day ; uj>oii Thurs-
Att. Gen, When it is mojit convenient for
tbebasiness of the court.
JmL HoUotiay, 8ir Samuol, yon will see
when it wilt be most convenient' at tiic return
of tbe Venire
CL of Cr. Must I return it ?
Ait^Gen. No; the shrritf miMt : ami the
eoonie is to make it returnable tlie same day
tbt cause is tried.
RofeteelL My lonl, I hambly desire I may
hire eounitel allowed to come to* me.
Alt, Gen. You can have no counsel allowed
BaeKtlL uly lord, I request that my
friends may be alIo\v«Hl to come to nie in the
nieui time'; I have been a prisoner above tliis
month, and not penuitted to see my friends,
nor they to see me.
JiiA Hoi/oieuy. What friends would you
have? — hustwelf. My relations.
Jost. Wate&i. ThatHations is a larjare word.
.Att, Gen. Trtdy, t^r, I think he may have
liberty lo discourse uith any person in the pre-
lieoce of the keeper, I shall not oppose that.
RosattU. Yes, uiy lord, 1 desire uo other-
wise.
JnsL Walcdt* Who do you name to come to
you?
RnaceU. I have poor children, that desire
sad lun^ to see me.
Jost. Hoilouay, Who do you say, you would
ba«e come lo vuu ?
R-MTureil. Ay wife and chihlrrn, my lord,
rtm are my bowels.
Ait. Oeii. In the presence of the keeper 1
casDOt oppose it.
Raseaetl. Will your lordships please to al-
fow counsel to come to me ?
Just. HoUowaif, We cannot do it by law.
The court is to be of i*ounsel lor you when
yea come to your trial. The court will not
■iffer any thui^ to bu done to your prejndiuc
■gainst law.
Rotttcell. Is there any statute, my lord,
that forbids the j^vincf ol' counsel ?
Jufcl. HolloKtiif. The law forbids the al-
bwiD^ of ooumiel in capital causes : unless
where mrtter of lawdotli arise.
Roseveii. My lord, as I remember, Fitz-
karris had counsel allowed him.
Jvst. HolUmay. That Mas in a different
rase, in a matter where there were special
pleadings ; this is a general issue.
Att, Gen. That was in a mattet of law,
that was insisted upon, but it \s not so here ;
if this gentleman had any matter of law to
ph*ad, he should have counsel assigned him
too. But, Sir, I think Tuesday thr 18th of
November will be the frecsit and most conve-
nient day.
Just. Uolhmay. Let it be that day then.
C7. of Cr. The 18th of November is the
day of your trial.
Roseu eii. But my loni, was not comisel al-
lowed him before his trial camp <m ?
Just. Ilollozcuy. Yes : but that was upon
a special plea, of a matter in law.
Roseuell. I hope you wiil ccmsidcr my case
as of one that knous*i)otthi> law.
Ct. qfCr. Tuesday the 18th of November is
the day.
Roxeiceii. My lord, 1 humbly reauest the (a-
vour that any penwn that c*au speak of my in-
tegrity, may i-oiiie and testify tor me.
Att. Gen. Ay. ay; you may havesuhpd*nas
out of the othco tor any l»ody who yon will,
tliut are to be witnesses for yuii.
Just. Wtdcot The officers of the eo'irt will
do all things that are rt^fpiisite and legal for
y.iu.
J list. Hofhtiay. Then take hack yomr pri-
soner, Kieppr.
An. Ocn. J do not know tmly, whether the
practice of tho court is ,iot to commit to the
^urslihlsea, being tht' prison uf the county ot*
Sui rey
CL of Cr. Sir, it niav he one or the oither
w:i^. as the cour: thintis tit. As long as the
iimg'-^-b^neh sits in MiddleMX, lie may be pri-
soner stid in the Gau'- house.
Kftptr, Then llicruleof the court is thai
he siiuil cninc again tlien.
(.'/. of Cr. \eH. he is, by rule, to appear
beretiie I8thof Novemlicr next.
\\ h<M'cuiK>ii he was carried back to the Gate-
house.
Die Mortis^ Aw. 18, 1084.
This day the prisoner was brou:r|it, w rule,
frtmi tJM' Gate- house to the l»ar of the King's,
bench conn to his trial, at which all the judges
of the said court were present.
C7. ()/' Cr. Thomas lt< sewell, bold op thy
hand. [Which he did.] Those men that
thou shait hear called, and do personally ap-
pear, are to pass between our sovereign lord
and thee, upon tlie trial of thy life and thy
death : If therefore thou will challenge them,
or any of them, thou art to speak unto them
as they come to the hook to be sworn. Sir
Gpnr<;t; Sheeres, baronet.
Rosetcell. My lord, I would humbly crave
the favour of your kmlship, that I may hare
the use of pen, and ink.
L, C. J. r8h- G. Jeffreys.) Ay, in God's
name let him liave pen and ink.
CL of Cr, Swear sir George Sheeres, hart.
Roseweli. I beg I may have pen, ink and
paper, before he be swum.
155] STATE TRIALS, 36 Charles 11. l6S4,.—TYial of Thcnm Ram»th
L. C. J, Ay, let him.
Crier. Look upon the prisgner. Sir, you
shall well and truly try, and true deliverance
make between our sovereigfn lord the kinfi^, and
the prisoner at the bar, whom you shall have
in charge ; and a true f erdict gi?e according
to your evidence. So help you God. {Jurat*
Sir George Sheeres.]
HosewelL My lord, I challenge him.
L. C. J. That you cannot do now he is
sworn.
RosewclL I was surprised, my lord ; I did
not know it.
X. C. J, I cannot help it, Mr. Rosewell,
you m ust mind your business. We cannot im-
swear him again. Go on.
CI. qfCr. Sir St. John Broderick.
Crier. Look upon the prisoner, Sir ; You
aball well, Aec. Jurat' Sir St. John Broderick.
RosezoeiL I challenge him.
X. C. J. You cannot, Sir ; he is sworn
now.
Rotewell. I beg your lordship's pardon ; I
was surprized.
, JL C. J. Let us not spend time in such talk
as is to no purpose ; I tell you we cannot un-
swear him.
RotewclL I desire, my lord, my challenge
may be received, I was going to speak —
jL. C. J. It cannot be afler he is sworn ; we
cannot make a new law for you. Mind what
was said to you ; if you have a mind to chal-
lenge any body, you must challenge them be-
Ibre they come to be sworn.
CL o/Cr. Sir Robert Knigbtley.
L. C,J. Mind the thing you are about, man :
apeak now, if you have a mind to challenge
hjm.
Ros. I do not challenge him.
CL qfCr. Then swear him.
Crier. Look upon the prisoner, &c. [Jurat'
sir Robert Kniglitley.]
L. C. J, Pray now mind the thing you are
about ; you are lofking about you ior some
private mark, or bint to be given you by some
body, and so lose your time of challenging.
You must challenge them as they come to the
book to be sworn, and before they are sworn.
Ros. I beg your lordship's pardon ; I was
minding to set down the names in my paner,
because I am to take notice of those I cnal-
lenge for their number.
£. C. J. You shall have all the fair advan-
tages that the law will ^low ; you shall have
your full number to challenge, which you
may do peremptorily, and without cause as
to 35 ; and as many more as you can with
cause.
Ros. Is there any one to note the number ?
L. C. /. There shall be sure to be notice
taken that you be not surprized that way. You
shall have all fair advantages, I tell you.
Ros. I humbly thank your lordship.
CL o/Cr. Sir William £lliot.
Crier. Look upon the prisouer.
Hot. I chalkngehim.
CI. tjfCr. Sir Oeorft Wwdroofe.
Ros. I chall^gehim.
CL ofCr, Sir Cornwall Bradshaw
Ros. I challenge him.
CL ofCr. Sir Thomas Bladwdrth.
Ros. I challenge him.
CL ofCr. Antnouy Thomas, esq.
Critr. Look upon the prisoner.
Ros, I do not challenge him.
Crier. You shall well and truly, &•
Anthony Thomas.]
CL ^Cr. Francis Brend, esq.
Rm. I challenge him.
CL ofCr. James Reading, esq.
Ros. Is it Mr. Justice Reading •
wark ?
X. C J. Do you challenge him or
may if you will.
Jutt. yiy lord, my reason is, I ha
imich of him, but never had an oppc
know him till now. I have no
against him.
X. C. J. Then swear him.
CL ofCr. Thomas Newton, esq.
RoS' I challenge him.
CL f^Cr. Thomas Vincent, esq.
Ros. I challenge him.
CL ofCr. Ambrose Muschamp, es
Ros. I challenge him.
CL of Cr. Ralph Freeman, esq.
Ros. 1 challenge him.
CL ofCr. Joseph Reeves, esq.
Ros. I challenge him.
CL of Cr. AnUiony Rawlins, esq.
Ros. I do not challenge him.
sworn.]
CL^Cr. Thomas Overman, esq.
Ros. 1 have no exception against h
was sworn.]
CL of Cr. George Meggot, esq.
Ros, 1 challenge him.
X. C. J. Crier, Be sore you bid t
upon the prisoner, and the prisoner i
them, that he may see what he does.
Crier. 1 do so, my lord.
CL of Cr. Samuel Lewin, esq.
Ros. I have nothing to say aga
[He was sworn.]
CL ofCr. Lawrence Marsh, esq.
Roi. My lord, I desire to know 1
I have challenged.
X. €. J. He shall tell you. Coui
CL ofCr. Twelve. Wiiat say y(
Marsh ? — Ros. I challenge him.
C/. of Cr. Ambrose Brown, esq.
Ros. I challenge him.
CL ofCr. John Halsey, esq.
Ros. 1 challenge him.
CL qfCr. John Awburn, esq.
Ros. 1 challenge htm.
CL ofCr. Heury Flood, esq.
Ros. 1 challenge him.
CL ofCr. John Parsons, esq.
Ros. 1 challenge him.
CL of Cr. John Petty ward, esq.
* See a Note to the Case ot*Don
Sa, vol. Ik, p. 46a.
STATE TRIALS, 36 Charles
0 not challeDge bim. [He was
Ricfaard Coldbaro, esq.
» not challenge him. [He \vbm
Robert Sanders, esq.
allenge him.
John Heatlier, esq.
b not challenge him. [He was
John Austin, esq.
f. Sir, doth this make twelve if he
■CLrfCr. Yes, Sir.
n I do not challenge him. [He was
Crier, coant these. Sir George
«,«&<;. ^
John Austin.
relre. Good men and true, stand
hear your evidence,
re ftworu were these : Sir Gcot^
St. John Rrodcrick, sir Robert
inthoDV Thomas. James Rcailing,
wlins, Yhomas Overman, Samuel
B Pcttywani, Richard Coldham,
9*, and iFohn Austin.
llionias Roscwell, hold up thy
eh he did.] Gentlemen, you of the
Bm the prisoner, and hearken to
e stands indicted by the name of
■evrell, &c. (Proiit) in the indict-
& mutandis. — Upon this Indict-
fc been arraigned, and thereunto
Iwl Guilty ; and for his trial hath
'ipso God and his country, which
1 mfe. Your charge is to enquire
be Guilty of this high treason, in
fcrm as he stands indicted, or not
you find hini guilty, you are to
t gnods or chattels, lands or tenc-
■d at the time of the high treason
or at any time since, to your know-
'ou find him not guilty^ you are to
!thitr he fled tor it ; if you find that
il, you are to enquire*of his ijfoods
tsif you had found him guilty. |
him not Guilty, and that he did not '
a are to say so, and no more, and
evidence. Crier, make procla-
I yes, O yes, O yes ! If any one
Kj lords the king's justices, the \
nt, tlif kinir's attorney -general, or |
I Boir taken, of the high-tnrason
i prisoner at the bar stands indicted,
■e fbilb, and they shall hv hcn&rd :
■firot' persons that arc bound to
M en tne behalf of our sovereign '
If IfMHt the prison«'r at the liar, ;
Mefcrth and give their evidenre ;
ifriMBSr atands at the bar uiM>n his
t: er thej forfeit their rccogni- j
Ibf it please your lordship,
mefiliejur}'
II. 1684.-/W High Treason. [ 158
Rot, Hold ! Hold ! I crave the favour that
the Indictment may be read in Latin.
L. C. J, Ay, with all my heart, let it be
read in I^tin. [Which was done.]
Ros, My lord, I humbly crave leave to speak
a word or two.
L. C. J. What would you have ?
R(}s. I beg your patience for a word or two.
I find, my lord, as 1 told my lords upon the
day of my arraignment, that my charge is
ver^ black and nigh : and truly if I were
guilty of those things that are laid to my
charge
L. C. J. You are now going to be tried for
them. I hope you are innocent.
Ros. I humbly thank your lordship : 1 beg
you would hear me but a wonl or two.
L. C J. You must keep up the method of
proceedings, your time is not yet come. What
IS it you would have ?
Rm, My lord, my soul abhors these things,
I thank my God for it. I was going to speak
to your lordship, to know whether the words
of a natural or a mad -man be treason in law.
L. C. J. No.
Ros, Tlien, my lord, the ground of the
question is this, I find by recollection and con-
sideration of the words laid to my charge, that
mv malicious enemies have accused me of
what any man in his senses —
L. C. J. This is not proper, Mr. Rosewell,
at this time ; for this is but an anticipation.
Vou must hear what is first proved against
you. We must keep up to the forms ot law,
you shall have your full time to be heard what-
soever you will say for yourself ; but jou must
not anticipate the cause with previous dis-
courses.
Ros, I would only assert my own inno-
cency.
L, C. J. Not yet ; vou must not do it, nor
you shall not do* it. XVhen it comes to your
turn to speak, you shall have liberty enough t>
make your defence as long as you will. Go
on. Sir.
Mr. Phipps. May it please your lordship,
and you gfentlemen that arc sworn : the pri-
soner at the bar, Thomas Rosewell, stands in-
dicteil, That he, as a false traitor, not having
the fear of God before his eyes, but being
Tuovol and siduced by the instigation of the
devil, and endeavouring to disturb the peace
and tranquillity of the kingdom, and to depose
the king, the Mth of Soptenil>er in the :)6tli
year of this king, at tho parish of Rotlierith,
ni vour county, did falsly, innlitMOUsly, and
trarierously, purpose and imagine- 1(» raise a
ro1>e1lion \«itliin the kingdom, ar.d to deprive
the king, and depose, and put him tfiiVath and
destruction, andtli«^ govcrnm«-nL to i-l ange and
ullrr, and to lr\y war a<r;iiiist the kmg v itiiin
the kingdom : and tlirsc wicked purposes to
bring to pass, be tb(! said Tlioii-as Uoseiiell,
the said Mlh of StpteinlxT in the ^Gtli vear
af'iresuid, at the plsur aioii^said, fidslv, unla\i-
fully, ntidicimisly, .•irdiiiously and traitcrousiy.
in a ccrtaiu unlawful assembly, th«n and there
159] STATE TRIALS, 36 Charles II. 1 684.— Ti /a/ of Thoma$ Itantcell, f 1(
And ^'011, Gentlemen of the Jury, I must ti
yrm, it" any "iic \vhis|»er anv of von, yon ou^
to ac<|!iaiiit the court with it. It is your dir
to be dircrted by the court, and the evidenc
congre^tcd, did say and declare, ' The people :
' make a flockingf to the kin^, upon pretence
* cf healing the kiu;;'s evil, nhich he cnnnoi '
* do ; but we are they to whom llicy ought to |
' flock : for »e are [)*nests, and prophetK, that .
* can heal their i;riv\anees. We have now |
' had two wicked kings together, who have .
* permitted f)opery to come in under their ]
*• noses ; and wlioin uo can compare to none .
' buttlic n'.ust \su-k(.d Jeroboam. But it' th(*\ !
■ would stand to their piinciplcs, he did not '
* dou!»t, but they shnuid ovenonit their ene- i
' mies, as in loriJier times, wiiu rani's- lion>«, |
' broken pUiUtTs, and a stoue in a slin;;.' And .
this is laid t(» he atrainst the duty of h;s aile^jri- .
ance, at^ainst ih:j peace of t-ie kini;^, hi^ rrown j
and dii^nity ; a:.'J aia^dnsl tiu' iorni of the sta- ;
tute in that case- made and providv.rl. •!'(» this
indictment he has pleade<l not cruilty : if we
pro\e him guilty of this matter, yon are to iind
him guilty.
Att. (Jtn. May it please your lordship, and
yon gLUtlomen of the jnry ; these traitenuis
wonis, that the prijionerat the liiir is aceuse<l
of, wen* s{>oken of in a S*»rmon,* or nn-aeh-
luenl at a conventicle. And though the gen-
Ueman doe^i preteiul to much iimoceney ; yet
vou v^ill find, that in open defiance of tlie law,
ue takes ufion him to preach avfainst the law,
Dot only of the land, but even against the laws
of Aloiighty God : for he takes upim him to
be a pn^acher agsunsta rule, than w hich nothing
is more plain m all the Word of God, \i'Z.
* That he should not speak evil of dignities,
* nor revile the prince of hivS people.' I2e
kno\«s this 1o Le the niU- of tin.' Seripture : and
yci in his constant discour^A, (as \\v. sliull
provi') hf makes it his practice to re\i!t' the
governmenl on all sides. And Ly these doings ,
at this day, g'-ntlemen, you will easil\ undci'- i
stand what the designs of thv^e conVenlJcIi.'s
are ; only to Uiirst^ up jieope m sedition, and
trriu tiiciu up to rebellion ; that they m»y bi.> ;
rt*udy lo break out mto it wijcii thei:" teaeliers '
advi.se them to it. We shall tal'i nur w ii t-ss**.--, |
ami prove to \ on, that thi:> is, and has been the ,
eon -slant U: nor i>f his discoursr, \'\z, Rrvilii.g ■
uf the governmenl ; and theu- is almost nn
text uf Scr:ptuie but, i:j his Ma^> of p<-rvertiiig
it, heha.s tmued agauist the QfoviTiimciit. \\ e
shall shew this to he I'le haliitnal eonrsi- and
practiiuot him \ili(; ).;e:i:id« \} !>(.' so |j(»:icst
and M> iunuei'iil a njuu. Crier, call Kii/.ahetli ,
Smith,-*-— liiltoii ai:d r'arrar.
Then somr ol ilir ;,ounM'i at th«»bar, being
talking am<injr thrmseUcN, the Loui Chxf;
Justice repro>e<l lo-m for it.
L.C.J. is*u.\. ;,ou, guiilencn, you must
not have i:jterlocuti0iis among vom'.se1ves.
• See .something concerning u Surmoij m.'iug
an u\i-iia(-i of treascii in the ar^nmei)*« etm-
ccruiug liii' exammation o;' iiai^i;-! i^tuart,
when lie was for the. third tinji* pp/iniiMHi, as a
witne.vs tor the prisoner in Hardy's Case, a.o.
1704, in this Coil'jctiou.
2 '
Ht re is a man's life in question, and that i.s
^^-.'V wei:ihty thing : anci vou must not ta)
an> p'.hafo rnsi nnal ion s, (mt only hearken i
\oiir»'\idenre, and mind what is'^spoken pul
iiely, iliat the prisoner may be able to gite ar
swt-rtoit.
Jtos. r humbly thank your lordship.
Att. Ofu. will re are .Mi's. Hilton and Mrs
Smith ? [Th: y wi re all sworn.]
Hvs. 1 do humbly nqne&i one favour of tlH
court.
J.. C.J. WWdi wniiM you have ?
Hns, I huu.'jiy i'-.ig they may l)c cxaroind
scparatit/f.
/,. C. J. They shpll.
Ron. I lippi'dy tliank vour lord.«:hip,
Js. C. J. 1*1 ho do \ou 6egin withal, 3Ir. At-
torney ;*
IVIr . Ji}7ics. My lord, we shal I begin with Mrs.
Smiih.
L. C. J. Then you must make way, thit
the other u itnesscs inay go out of hearing. Yoa
Crier, make wayfortfiem ; and see IhattbeT
be .sit w he re tliey may not hear. [Whica
was donj'.]
Att. Gen. Come, Mrs. Smith, pray giri
my h> d and the jnry nn account wheilicrm
ha>e been at any nutting, uhere this geatle-
man has been ? Whether you know him Pui
\\ hat you heard of him ? '
Suhth. I heard him say this
X. ('. J. llnhl u littlf. 'What is thiswomiB*!
name. F.l:/.a!u'ih Smith ?
Att. iji Ii. \c<, my lord. Were you by it
any of his ron^ » nticli s ?
S.'i.iih. Sir, I have lK*en ever since the Mlb
of J'lly. uiitil that day for which he was takes,
but onv Sunday.
Att. (.ioi. Gi\e my lord an account of what
yon heanl. — SfHith. '^ es, Sii .
i.. (.'. J: \\ hi re v\ as it that his meeting-howe
w as ?
Sfhif/i. \ \v. \i:\t\ ;,everal housc?s, private housei,
a.jd a pub.ir ho-.-ji- «ff 'lis own.
L. C. J. ^Vhere? In what place ?
S/iUf'i. In .Salisiimy-sticet, r.ear his wn
dwollinij.
/.. r.J. Wl.cic isth.M?
S:, iff), hi iivili -rliilh.
J . C J \'n\ w»iv fiequently there yot
S.1J ? — .N/j.ii*/. ^ t?s, ni\ Kii'l.
L. C, J V. hi I '..m.'.jir of people might be
there, as yon i^ik'ss '/
S/i:ii.'!.^\ bt'lie.i .In :♦ n.lglu i,e 100 people,
or .'.(;(; ronMn:)nl\ .
J.. ('. J. V» liSi .s'.it ofpet;*'.! w» re they ?
S/iuift. Men aiiii \M»mei>, Iioum-- keepers.
J.. (.'. ,/. W oil, wh It ditl yiii I:r.ir him sayi
*N '///(. I. i ea;: tfive \oi: an account of hi
>.orni(.ns s •;« it:! «la\s.
i.. C. J. Im» so.
^ithtt/i. The fiisl ns'tioe thai 1 i'K>k ofani
thin;^ co:iCi;iniiig tlic go»iimueLt, was upui
I] STATE TRIALS, 3(7 Cm ah i>is II. \ eu.-^for High Treason,
I of AngiKI, uui diAt )irai coDc«mitigf
giesty ; aod then m liis prayer aft«r scr-
e wisbed h^ ml^t not u^trnd God in
frtvitii^ Ibr the kinK* ; but that it might |>lease
^ to opea kig eyes, and ibe times nii^t
GrJi. WbAl otber iliioffa have tou
I/' f time th«it T hesrd bini was
Ineiii...^,.-, _^^^ ^h'« fltat was m W«t-
ltM« in » bouie ii> Iscu hf tva^ sj-i^uk-
dom and ^ , u^ and he hrou^tit
of, not (iouhtiti^ bat if there bad
^hleous p«TKan«», tUc? city had not been
but he 1 1 id not Dican rcoor*
rlorrl-TTTftyors.
m, >v vra« that, mistress ?
\\ til, uhat did you heir him
I the dnv in tlie indictment, the 14th
n\»er'f
Ho a»Ml, * The people made a flock-
Iff.. I .«« 1,^ ^m^ ^^^ king**i oTil, wiiich
fOOLi but/ lavfi he, * we arc I hey
>.k uoiQ, fur wt; ore prieils and
^ttiaibyour pr^^eri can cure their
lie siid, * \Ve have now bad
jelced kings log:ether, \vhicli hu.ve per-
"■tf j>ery to coiue ja under tlieir noses,
I he compared to noibiriu; but to most
)cjx)boaiu>' And then aftt-r Ut* had
I a good H'hile, again he said, v Ifthey
' >0ijJd fltand ta their principles, be did not fear
'btthrr should ovei-comc their eoeruieSf as
'it former timesi with broken platters, rams-
"^ ' a stone in a sling.*
When \fa3 this?
This Mvm upon the I4lh of September ,
ICX Wlien&waait ?
imiiL At one Caplaiii Daniel Weldy*£
ti C. X What is he^ a seaman ?
Y«i» and he prayed for him, being
ea, and hia son boilii who was if I.
How many do you think might be
' allbal lime?
There wu< a low paHour full, and a
^^ rxHtm up «ix fteps ; and where he preached
fOtie |»aJr of ttairs^ there waji a targe room
.C.J. W
, J. Where did he slanil ?
imik. In the door-case of that room, that
iiiaand lui^t go up and down.
L C J. flow many people in tiuinber might
' f be, thifdc you f
utL I cjuinot tell I oiy lord; a great
.C*J. How tnaoy, as nigh aa jou can
lartliink?
k^ Stjfenil hondred«of them.
»J* D<* ^on kuow any oftheiu ? Were
"e of any ijuality ?
t'es, I know a great many of them ;
bea are in the court, an^ about the
. X Wlia itfood at the door ami let you
[162
Smith, One Mr. Paul 8hed ; and he was
anirry at my coming with pattens, for thej
matte an impression in the ground, &nd g'a?e
notice to othen;, that tliere waii company there ;
and I promised him I would come no more with
thetn. (
Joat. Wakot. Waa he door*kee|tcr ? What
ia he F
Smith, A brasier, I think.
Just. HolloAtty. Had you any notice of &
coorenticle that was to be there ? *
/.- C. J. Ay ; tell us how you came thither ?
Jteccrder, (8ir Thomas J enner.) How came
you to 6nd it out that there was a meeting at ^
such a place ?
Smith. At first 1 found it by dogfging ol'
pti-tiple as they went abng ; and afterwards,
there were people aet commonly at a place
called Cherry garden stairs to g-ive notice ; and
iometimes 1 naked there, atid liometimes I went
to Mr. i!(hed*^ house to cn4uirc.
L. C, J. Shed, you say, was preseut there
fheu ?^
Smith, Yes, he let me in.
L. C. J, What, he was the man that ma-
naged the conventicle. He was clerk, 1 sup-
pose ; was he not ?
Smith. I never he»rd him say Amen ; but I
have beard him expound in the conventtde
sometimes.
L.C.J, Ob, he was a journeyman preacher^
it seenii;.
Recorder. Pray was there any store of ' J
Watermen and Seamen there ?
Smithy Yes, abundance from Elotherhith, or
tliereabouts.
X. C. X Which way came all the people
that were there ?
Smith. From Depttbrd and Rotberhith, and
all thereabouts.
X. C X Was it near tlte water-side ?
Smith, Yes, not far from it-
X. C, X Well, Mr. Attorney, have you any
mare questionii to ask her ?
Alt. Gen. No, 1 think not« Mrs. Smith,
vou have heard him, you say, at other days ;
how did he use to treat the govenunent in hit
pi eaciiiojr at other times ?
Rqs. My lord, 1 boieech your lordships to
tell me whether these questions are proper to
be put, it not relating to the matter ttiat 1 am
accuse'l of?
X. C. X Yes, ye^^ to give an account of
the disposition of your uiind ; very proper as
can be.
Rot, Because it is not part of tny charge^
and I cannot be prepared to anj;%ver it.
X. C. X When the kiugr's counsel hargk
done with her, you may ask her any questions ;
but vou must let them go on first.
Ait. Gen, My lord, it is charged that ha
spoke these words with a tmiterous, malicious
mind ; and what better evidence of such u
mind than his usual discourses ?
Smith. The 31st of August^ I heard him
preach at Patil Shed's house ^ imd there he
preached Uiat there was a certaiti great man^U^a^
M
J 63] STATE TRIALS, 3ff Chables II..1684.— Trtff/ of TXomm Romoeil, [164
testified ; but <lo not preacfa to her. It n dM
your work to catechise the witnesses, that is
tlie Uuty of the ^urt, and we shall, no doubt,
take care to do our duty. And I will tell her,
to save your preachment, she is in the presence
of theg^reot God of heaicn and earth, before
whom we must appear at the gfreat day of
judgment, to give an account of every word
we speak. And you are under an oath, and if
ill case you tell one tittle of a lye in your testi-"
mony afr«unst the prisoner at the bar, who
stands now to be tried for his life, it will be jwt
with the great Gud to sink 3'ou down into hdl-
fire immediately. Tkieretbre, 1 require yon,
upon your oath,' not to -speak one word bat
what IS truth.
Smiih. My lord, I assure you, I will rather
say less, tlian add any one tittle.
L. C. J. Mr. Rosewell, ask her what yon
will, but do not give yourself, nor us, the
trouble of a preachment to teach her the ohli*
(pition of an oath ; for she very well knowi,
It seems, what it is, and says she will rather
s]>euk less than more than the truth.
Rtt». I humbly thank your lordsh^ fn
what you have said to her. Mrs. 8mith, vnf'
was you at Kothprhitli the 14th day of nh^
4cinlier i*
Smiih. YeK, that 1 was.
Bo$, Did you come alone P or whom cadM
with you ?
Stmth. Mrs. Hilton came along with me, ^
I and another gentlewoman, and Mr. Shed let us'
in all together.
Riis. Who is th;it Mi-s. Hilton ?
lived altlie upper- end of Grace-church -street,
about tl;'-. timi^ eiu;litcen years agonc ; I name
no body, s»vs fie, yomlf know him whom 1
i.icaii : A.^ii there came a certain poor man to
liiu> ; lie was nut a |>oor man neither, hut a
carpfntt'.r Ly tmife, cue that wrought for his
living, a biiouring man ; and told that great
man, if he \toiild take his advice, he would tell
him how to quench the fire, but he pishetl at
it, uiid made light of it, and would not take
his advice. Which if it had not been tor that
grvat man, and the lonl mayors and sheriffs
that have been since, neither tliat fire in I^on-
don, nor the fire at Wapping, nor the fire at
South wark, had gone so far or conic to what
they did.
L, C. J. There wvlh a great man tlmt* lived
at the upper-end of Grace-church-strect !
Who did he mean by that?
RtconUr, He meant, we suppose, sir Tho-
mas blood worth, that was lord-mayor at the
lire-time.
L, C. J. He did not live there then.
Recorder. It seeius he said so.
Att, Gen. Pray Mrs. Smith, let me ask vou
one question. How fur were you «jff from lum ;
and where did you sit this 14th day of Sep-
tember, when you heard him say tliuse words
yeu speak of 1^
Smith, I sat upon the bed, and he was stand-
ing at the door.
Ati. Gai. My lord, we have done with this
witness at the present.
L. C.J, Now, Mr. Rosewell, if you will,
you may ask her \s hat questions you piea.se.
Ron. My Itinl, 1 was before going to l»eg
your psirdon for uiy weakness, U*iiig altogether
unacc|uaiiited vtitirtlicse tlnng:^: and that yon
would look upon niu as one that is fRo/is von-
siliiy and puiuon any thing that coincN from me
iiiil)ertineiitlv. I cannot s]«eak to her as a
lawyer to sift her, and search out the truth ;
will your lordship givu me lca\e to i^pcak to
her as a divine ?
L, C. J. Ask her what questions you will,
hut we will not have any T>f your preiflchnients
here. You must consider wheiT you arc, }'on
are not now iu your pulpit, but at the liar ; I
assure you wc do not intend to make a ^n-
venticle of the King*s-hi:nch court.
iioi. My bird, I meant only to endeavour to
convhice her, by putting some questions hkc a
divine, to her. Fcir 1 pity them though they
envy me ; and I bless my God, have prnyetl
for them many times since my iniprisoniricnt.
X. C. J. W^cll, well ; do nut btund to emu-
mend yourself now, this is not your time of
making your defence : Only, if 'you vull a^k
this witness any questions, yuu may.
Ros. You are uuder an oatli, mistress.
Umith. 1 am so, 5Ir. Rose%i ell.
Rits. Are you sensible what an oath is, and
the great obligation you are under by it to tea*
tify nothing Gut thetnith ? As yon will answer
it 10 the great God^-—
L, C.J. Ijookyou, Mr. Bosewell, ask her
any questions to tne buuncn that she has here
Att. Gen. Vou t^ill see her by and by, Mr. "
liosewell.
I Ros. Where did you meet together ?
! Smith. Mrs. llilioii lay with me all niglit,
j and we were together the day before.
Rvs. What time did ^ (»u come thither, pn^t
misti-ess i'
S/HUfi. I eaine thither before seven oftbe.
cloeU, befoii^ y«iu caiue. Sir. '
Rv:i. And rpray wIiom; house catno you to
at KntherUiili !'
Smit/i. We m-e inflirmctl it was captain.
WVldy's heiiN,..
Ros. .Alt \*n\ Miiv it was his house ?
Snith. \^ tiii-v did t<r11 u^, it was cap
Daniel Uebiy>;
lloi. I pniy, inistn'.*;s-, what room were ym
j in there ;*
Smith. We wcrt: iipone pair of stairs. TbcMj
I i« a littlf HMMH v^e couw iit sooner;
I utMf in iIk ioiim \%ith iliebed ; and thore
'. one Mr. Atkiiisim thert> thai was in
: iiig« aiul tb«Te were two or three hoys ot' Hii
\ntli liim thai s:;t upon the bed, and their sbwl
i W4'i'c pliieked off, that they miifht not dirt'lfci
j bed ; and 1 gave him hisboy'.s shoes from unlll^
tlic bed. ^ •*
Ro$. Prsiy where did 1 stand, mistress, il
you say ? '!
Smith. In the door-ea';e. ' '^
L. C. J. Wliat boy is that you mak of ?*^'
Smith. Two liovs that came m with oitf
ifiij STATE TaiALS, 36 Charles II. l6s^.—for High Treason,
Sfr. AtkioiOD; bis relgtiops, I auppose the^'
166
Jbi. Pc^v how did Ihe serrice begin P
Smith. Vou took your text out of the '^ 1st of
CwMii ; tbal was tlie eba|iter, to tlie Ix^t of
■T nBemUrance.
'Rm. Rut I ask you, 3]istr€S!i, how did the
vSDihn^ the sen-ice bcg^n ?
L C. J. You mean your prayer, you do not
IK to call it service.
&ulA. You^ade a prayer.
Rti. Was it begun with a chapter, or a
Mb, w how?
Smith. There was no psalro ; a long* prayer
m va4e, an voa u«ed to do formerly.
Km. How loDH^ was that ?
Smith. It was always ussed to be about three
fuilss of an hour long.
Mm. IV as there aiiy dia|»ter read ?
Smith, There was no chapter before you
CyMir teiu, as 1 heard, and I was tliere lie-
Jm. Uuon what occasion then were these
viirii apoLe, if there was no chapter resid P
&BiX«. I say thci'C was none till you took
Jimtatf andthen you spoke thuje words.
Mm. But how frame thtisc wonls in ?
Smitk. You always took a ivhole chapter,
aa4eipound«^all along.
Sol a I'Mi^ text for one sermon, miscri'ss.
LC. J. Yes, yes, we know you have a fine
I'cii, Mistress. V\Mn what verse of
were these wonis spoke, about
le king tu cure the king's evil f
inii I cannot be punctual to the particular
LC.J. Nay, I suppose you seldom keep
•i fSBT tfxt. I am sure there was never a
wsi ja anv chapter that warrauted the speak -
kgviiDy sui.'h words as these.
Smtih. My lord, 1 ranniit be punctual tu
Aefarticolar verse. It was uithin tive or six
^m of the lic^nning, J hilievc.
Mm, Tlien upon \» hat occaj^iun came iu tlie
w4i about the two \uckrd kiiiijrs ?
Smiik. in preaching you bruught it in by
fAv proofs.
L. C. J. W by, man, there can be n<i occa-
IM for s|icakii)g of tuo.se words, ^'ou simke
4hi without any occasion at nil. N'o iKHly
QileU what nccasMMi you had to speak them.
Mm. But, my lord, I sunp(»sc thiTc may be
■Bt oohert'uce in my discourse. I would
Imv haw iliey wen* brought in ?
L C J. W ho cau tell the occtiiiion :' Uo {
; a»e whatreaMiu any man has to K|ieuk
.' I tell vou there is none at all to be '
It. • 1
<lneaf your proofs iu your preach- {
'■Mconceniing Dalilah and hampKoii, and
bmnhtinthat proof couceruing the king*8 I
f «f women, it was out of the J udges. And
■Ahtdid not question, but that in the end
lirai would serve the king, as that \»hore
bM ltoi|iaoii.
J. J. Was this at the same time, upon
>.«KdajP
JSmilh, Yes, it was upon the 14th of Sep-
tember.
Ros. [fit please ynu, my lord, these are
not words that are chaigal iu the infor-
mation
L. C. J. You draw it upon yourself by your
questions.
Ros If Ihey were spoken, (upon that hy-
pothesis, \ say, if they were spoken ; but" I
deny the thesis, I abhor tlve thoiii>fhts ol'thcm)
1 would kuow how Uiey were brought in, under
what vtTse ?
L. C. J. Ay, I take you right ^s to that,
you do deny it ; and they are not in the in-
dictment.
Suiit/i. T cannot be punctual as to the verse.
Rits. Vrtvw u)H)n what account did come in
the two uicked k\t\g< i*
Smith 1 cannot tell the verse, truly.
Ros. flow came in that aliout Jeri)boam ?
L. C. J. Uow can she tell how you bring in
treason ? — /»(«. l\Iy lord
L, C. J. Nay, ))ray, Sir, hear me a little.
You shall ha\ e ull the libeiiy to defend your-
self that the law can allow' of. We ore a<^
countable to the law upon our oaths to do jus-
tice, and are as much accountable to Heaven
lor our actions, us you or any prisoner that
comes to this bar is to the law for your ac-
tions. But do you ask what reason yon spoke
treason for f 1 iell you no reason cau be given
for it.
Just. llol. Do you think any td'your audi-
tors can give an accouutofthe connection of
your whole sermon P
L, C. J. VVhen you talk hestderi the cushion,
do you tliiuk any man alive .is able to give an
account how you come to ramble and talk
tre:ist)n ?
Ros. Can you tell, mistress, when that wa^
spukL:n, of stai.diug to their priucipU'S, and
tijcT rums'- Ikuhs, \c.
S./iith. That was at the latter eikd of your
SiTiliOII.
L. C. J. When you had sai.l thrre were two
wicKed kiny;s, tlii'n presently you were for
standing to your priiinpU'S, and overcoming
your eneniicb.
Ju*»i. Ho/. It seems she was very intent upon
yoursiTUum.
J.. ( '. ./. Fur my part, I wonder she can re-
meinhur so nuirh us she does. It is much bhe
can riMUiMuber suc*h stuff as this.
I(tf.<. Thf (j'id of truth, luy lord, 1 hope
will niHuifest tiiif truth. l*ray\ nii-tifss, were
tliCM* words s|H)IvL'U one just allcr uitotlic-r iu
toy disco ursi* '.'
*.S/A*7A. No, they were ntit ; but thty were
ull spukeu at ihat titiu.-.
.fust. Jlol. Have you dun»* wiili her ''
Uos. No, my lord, I hmnlily l»oc«rh your
favour and patience a li;tK'. Pray, mistress
iSmith, did you write ?
Stnith. t'did not wiite till I came home, and
after 1 came home I did write it down. Several
that were there did uiiie down your K4!rmou.
Ros. ISeveral of whom, do you mean :*
limit h. Several of your congregation., Sir «
I
J 167J STATE TRIALS, SS^Chahlrs II,
Bm. Did yooT compaoioos write f And
ay where did you first wrile down these
words ?
Simih, After I came home I set them down,
word for word to a tiale^ as they were spokeo,
«i near as I could remember what you spoke.
Roi. Was flDy body with you when you set
tiiem down P
Smith. Yes, my own family saw me write
them down ; and the other witness was with
tiie ; and afterwards we went to the Bull and
Month, the Qnak«T's meeting* house.
Rat. >Vhat other witoc«se!i were by when
you tet them down ?
SmUh. There %va8 my husband, my appren-
tice, aud my child.
Hon. And did you <»ct them down just ex-
flptiy ax you have sworn them upon this in*
Hcif neol ?
Smtfh* Yes, to ihe best of my knowledge.
lloi. Upon your oath, in the presentee of the
'gicnt God, rUtl you set I hem ilow i\ as they wefc
ip«*kon r — Smith. \vn, I tell you.
L. C. J. Ay, I would a-^k you ihnt question;
did you (1 speak to v"" fksm the nresctite of
the gn'ut God» and upon your oath) set down
hiH words [nsX a» lie spoke them in «tibstance ?
Smiih. \cB,\ did to the same substance as
near as I could I'emember.
Hos. Pray what other words were spoken
between th<*s€ words in the indictment, il they
were not alt spoken u>|fetlier ?
Smith. One thing 1 do remember more that
you liaid thai: day. You said there was a word
thc> cidlvd cunliji^; hut for your part you
ditrnot understand what it meant, unle^ it
were ll»i5 ; You paid* y*»u chanced to go by
one of the jgrreat churches ; where peeping in,
you liaw a tnan with a while surplice, and the
or^ms H ere t(f>inf^, and they were canting, and
sinjjTiu^the Litany, the Creed, and the Ten
Couiiiiandmeuts with a Ha*ha-ha-ha*ha. For
your part, you were ashamed to hear it : and
this you said wasuil the canting you knew.
Att. Grn, You will draw tltis upon yonrwlf.
Rm. I am sorry to hear this indeeil, tin'
lonf.
L. C. X 80 am I too, with all ray heart, I
will itssure you»
Rvs. You say you set down tha words the
same day, when you cumc home ?
Smiih, Yes, I resolved so to do, when I ca*me
Bwny from the meeting, to write them dou u as
soon as I i-umc home,
iliw. Did yoti confer wttlt any body abovU
these words 'f
Smith. Not till I cam« to a justice of peacci
and discovered it,
Uni. What iusti»:« of peace v>-as that whom
you discorercd it to f
Smith. The llecorder of London,
Rctit. Aud yt»u iwear these were the words
that 1 ^jK>ke ?
Smith. Yes, as near as I can remember.
L, C. X if she s^*eur the sul>stantial part of
them^ it is enough, though the very exnrl words
she doth not swear: for the wonts are laid in
1 684.— Trial 0/ Thmai RbumUt [ 16S
tilts indictment in Lstio, and by wmy af m*
sertion*
Rot, Your lordship win pardoit ray wmk*
ness, I am ignorant of the law.
L, 0. J. And we will take care jim shall
hare uothing^ done to your preytidioe cliat it
against law.
Ros. i humbly thank your lordsbrp. IMIff
tress Smith, upon your oRih, you lay Mr* HbiH
was at that conventicle ? V
Smith. Yes, he let me in at the door, aikil
was angry with me thrit i would ootue so near
the place with my pattens ; he nanl H fll%k
give occasion of suspicion.
Rm, You were saying you heard him et •
pound. Where waa that pray T
Smith. Yes, that I did, at Mr. CrooksbaiikB*!
house ; and I heard him another time
Ro,%, What was the day in Aiagt»st that yoa
say you came first to hear roe ?
'Smitfu I do not say it was in August, but in
July, that I came first lo hoar yo^, the 9Qlb
of July.
Rm, You say I preached In tlie pobli^
mectin^'placc ; what day was that, pray f
Smith. The loth of Aujjugt, to the Ml if
my remembrance ; it was tttc foutb Bumlaji
as r rememlier, that I heard you there.
Rm. Have you not sworn agaitwi
tides in other places ? — Smtth. Ye§,
Rm. What con vcnlides ?
Smith. If my lords please to ask me*
gire an account.
Ro*. Have you, or haf e you not ?
Smith. Yen, several ; thooffh 1 nercrlMii^
any thing spoketi in any of 3iem agaitisl lihe
king^, but at your^s.
Ros. Did you swear a cmitenttcle agaiut
one Mr. Hales f
Smith, t swore it by confession.
Em. Were you at that conventicle ?
Smith, No, I was not, but I swora it by
confession.
Rot. What day was that conventicle ?
Smith. As they told us, it was the 13th of
Jnly.
Rot. Was there any thing done upon thai
conviction ?
Srmth. Y^c*, he paid his money that was sd
utxni him, and never made any appeal ; hii
wife confessed it.
Ret, What other convctiticlos hare y^n
been at ?
Smith. Conci»ming j ou, do you mean ?
Rot, No, any other conveutieles of the
natics that you have sworn agauist ♦*
Smith. I do not Inow whether thai Hc^
proper question.
Jim. What fcay you, mistress Smith ?
L C. /. No, no ; that you miistiial wsk 1
that in to accuse hersdf.
Ju^<t. Hiti. You must not a&k Hor any Chin|^
but that you stand here charq^ed with.
L. C. J. You must not ask her any Ihingf
that may make lier obnoxious to any penalty.
Ju!>t. Wttlcot. Do you ask her any
f)aestions P
STATE TRIALS, 96 Chaslks tl. l684.— /w High Trtaum.
[170
Xm* I wilS ifrKeotly^ my lord, I beg your
pyicAoc.
LiX J» Aft ay» tikeyoar own time.
&«. Plray, MisCrets Smith, were you a
liBMi agftiBfl ft conventicle at one Mistress
SmUL Ye8« tliat 1 bad by confessioo of her
Sm, Wis tkere nol cocae moDey ofTercJ
L C /* Thai is not to be asked, you mast
nmrnk h& ttty question that may make her
t^emt berneif crim i naj I y .
f SmkA, Nefer by roe, 'Mr. Rose well.
■^^Hl be^your loni»hip^6 nardoa^'-
^^^K /. 1 will tell you the reason for it,
^^Hm thai wbich ought to be satisfactory lo
^Hirafly body. They are not bound to'an-
^Mrtaiy mit«iioQS that you ask the witnessefi,
niercby toey ebargt; tiiemsekea with any
cnnic, or by aasweriuf^ may subject themselves
l««iy penalty. Whether It be so, or do, you
mi not aak tbem, but jprore it.
SaiiA, I never diil otter anVf my lard.
Boi. I thought 1 might 'offer any thing
ifiiiiat what she had iwom.
L C. J. Prore ivhat you can in your time ;
i«t dy nut ask her any such questions. The
kw isiO| and the same for vou as it is for e?erv
All. Sf istress Smith, you swear these words
werespoluii in the foreiKKiu upon that place,
tbe list of Geofsii^, une afipr another ?
Smttk, Yes ; those woHs, as acar as I can
i^etk them, were spoken (hen.
L> (X /. Are those the words you heard at
Tfi liuhsrance lljey arc, my lord ; as
I >ver.
more questions to ask her at
I my iortt.
f/l, Grn, Pray, Mistress Smith, s'mce lie
started such a quest! t>n ; have you been
wUh^ and b<^n oflfci^ed any money ;
what, and for w hat ?
iiih. There camt* tme Cartwright, and one
tomt ' \ cannot ijive an ac-
cxact) y it was ; and first they
tome iii«>iu ni^irfss Batho's husineas,
•aJ after wurds thev fell into dijicoarse about
IR/>*tvvrlf, and they told me» Th*iy won-
d I would buve my hand in any man^H
1 Said I to thcm.Nnpp^se you had heard
1 1 did, wlittt wodKI you have done ^ Says
Norton, you bad hciivt take *fO giiiueis,
not apii«ar «^n!»t htm; ^id he ; not that
body uiat I knof^v t4 that he is concerned
, «'ill C»*'e yon tliat sum of money, but
jm bad Mter take it, Hay^ f, uhatis the
'1 shall hriy m« off from
ih I would f*\ien\c, und
*' 1 tvidcnrc of
1 >Ir. t'nrt.
i li >iiu u,u\ fiot difico-
► woidd. Said J, yes,
. Hms^ any body eUe tampered ,
with you ? Have you had any letter aent fxt
you?
Smith. Nothtag till yesterday morning r a
letter came then>
Alt, Gen, What was that ?
Smith, 1 suppose my lord saw it.
Att^ Gen. Ay, but you must tell tlie jury
what it was.
Smitk. Ooe came to my brother^*, and
brou^^ht a letter thither, which I read orcr ;
and he said to my brother, if I could be any
vvi&ys assistant to Mr. Rose well in not coming
in against him, I might have 200/. paid down
to moiTOw ; not that Mr. Roscwell kncvr of it,
or would gire it me, but it was a iiagt?r that
wafi laid. Same laid be would be hanged, and
some laid he would not ; and so he said he^
would come and give me an account who it
was that spcke to him.
Att, Gtn. My lord, we hare done with her
now. Call ^Irs." Uilton.
RosewtlL Will your lordship please to in*
dulge me so far, tbat i may ask her another
question or two P
L. C. /. What is it you would hate. Sir ? *
Rosewetl. I desire her before she goc» out
to recollect one thing*
L, C. J. Nay, nay, she shall not go an^y :
If you have a mind to ask ht?r any thing be
fore she goes away, do io ; or &be shall como^
again, if you have any questions to put io her.
Att. Gen, My lonf, she is big wtib chdd,
and cannot well crowd in and out,
L. C.J. Jf she be with child, then let her
sit upo the stool there,
HoifwelL With your lordship's indulgtoce,
I would ask Mrs. Smith this queition ; the
Cfentlcwoman that was with you, Mrs. Hilton
I think you called her, did she agree with you
as to the same wonis, and as to time and place ?
Smith. If you please to examine her, I sop-
pose she will giTc you an account*
R4Xsf.weiL Then I would ask her this qucs-^
tion, with your leave, my lord ; whether waa
that other gentlewoman with you b the same
room ?
Smith. Yes, she was, ond snt upon tlie htd
with me, and I pulled her by the sleeve whrii
the words wen- spoken, to tate not ice of them. -
Att. Gen. C^ome-, Mri. Hilton, give my lord
and thejivy nn account; have you been at
this conventicle at any time, and what have
yoti hef^ril there ?
Hilton. I canie to Mre. Smith *f on Saturday
night, and on Sunday morning I went wifn
her to this place ; 1 was never there before io
my life, they said it was one Daniel's house,
one captain Daniel *s : it was near M eat -lane
io Rotnerhitlt. And when we caine ther**,
there was one that Mrs. Smith knew, that »tood
at the door, they call him Paul Shed, a little
man : and when wo came to the doot , he said
to iu5, Pull off your pntten», says he, for they:-
wi!| give too much occasfioo of distrust of
people's coming : So ^ve pulled off our pattens,
and said we would take care the neyt time*
Wh«a we came in, we went through a kind of
»
I
I
STAT£ TftlAL$, sti ChaullsU.
p. hiil^ and when iv€ G4me Uiere iiiioilie bail*
tlicrt! were a UllJ^ parlour i^fQiust it : we we«it
up the MUirs, ami wbtiii we cautc up sitairs,
ibere were l»'o more n¥»m?« ; ibai room we
came into was hiitit' vv It h satl*<'^>touretl pa|)er,
atul liooti llie IH^ uajid thet'-* atooil a liwi^t*
wood KiQii of che^L u 1 u and a little
^!aj» over iliai, M r H i nc, and stood
^ the «utraii€e oi Oie cloui , ?*o tUen^ was
a little ohild iii bed when we came up, aiid we
aat down *m rhe oiher side of the bed ; and the
vbild uiih iJiki.fl out of the l>ed m*esi*nily after-
frardi>» Mr. Ilosewf.U preacht^d ^poiithe^th
or 2i5t chapter of Genesis, I amnol he po-
^iijve which oj' them, but of one of theui it
was
HoumclL Bat u[>oo ytixa o«th cannot you
tell which it was ?
L. C. J. You tnu^t uoi interrupt her, Sir j
you shall hare your time to aak her wltat you
mil.
. HiUmx. ItwaslheSOUi or ilst of Gcn^i^i.
I witJ not be positive uhjch of them it wui.
tout the thin|r was as to Abraham and S^irah ;
that was tiie contents of the ch^^iter iliat Mr,
Rosewell was then pleased to preach tjpon.
AOerhe had tftok hts text, and pretichetl a lit*
tie while, he liaid, ' The petvple wriil flacking-
* to the king to cui-e tJjt? kinpf'h e*il, which he
* could not do « fortliev ou^bt to flock to them,
* that were priesta anif prophets, who by thdr
* pravers could cure Uietr gric vjinces.* Theti
h« ' a great while of the chapter Ibl-
lo :i J and then says lie, ♦ We have
* hatl two nicked king^ thnt hare suffered po-
* pery to come in noilei^ their noses, which 1
* «ui compare to uoihiuj^ but the most wicked
* Jerftboam.* Th#*Te was Rn*>ther king named,
^d I thiiik it waa TteholKiam. [ cannot be
positive as to that^ but Jeroboam I ain sure
wan named. Then he said, » If the people
' would stand to their ]»rincip}e«f he did not
' question but to oAercomc alt their enemies
* with broken platters, i"aros>h<nns, and a stone
* ui a sling.* Thcic \>tre Uic words Mr, Rose*
well was pleased to say.
L,C*J. Can yc»urcii;^etnl)€r what day of
the month this wan ?
Hifton. U was the 14th of September, my
lord.
L. C. X Do you remember what number of
people were tlicrc ?
Hi It on 1 btdieve tliere were 4 or 500 peo-
^|K > tl ret ful)« and two ruoriis
^M<}^' and the halt full ; and
pne Paul .-ML'«j ^a^ i»irs. Smith told me his
name tva«) let us in. I did not know any oi'
th^BO J nor ever had convicteil any of them ;
that was the first time [ ever was at a mc^etin^
ta my Ufe, and f had enough of it then.
L. C. /. You say you came on Saturday
ht to Mra, Smithes 'hotisa ?
iUan. Yes^ my lord.
In C. J, What tmie that night ;
tiiUttJim > t ornint^o^clock,
^ L. C. J* \ in ibc morniDg did you
fo along with her io ilua plaot f
SUUon. We urettiby 7 o^ctock in tbc mofn*
L. a i. Did :ilr. lan^c^veU come bdmt
you. or allcr you ?
miion. No, be came presetitly afWr vreirerv
there.
L.C.J. Do you remember any ocber wonb
he uttered there that djiv ?
lltiton. He ^^ " 4»f sercnl
things betwerii . atnouf
the rest, 1 heard niin fiei
said there was a worl , bii|[
he did not undersian«l >^ r.nt,
except it wert' the fellows i
a liaha-hn-ha-ha: tor my part, says ,
was ashamed to hear it-
L. C, J. Do you reaiembcr any otiier pail a
the discourse P
Hilton. lie had a great n
iho^e tiling, that 1 cannot no^v
affi i>;:litcd ine Io hear it out of -
L. C X ^^ heie did vou tfo ii
JiUhm. Wewentli - - ^'
\ias two o*cluck, an
bread all the while j o.i.. o^ ., ..,
hoiue^ Mrs. Smith took her pan and ink pre J
sently, and writ down those \%orde* ; 1 -^^^f Uhl}
band'nnd I and ^he were together :
we had tlone this, we went to the ^
meetiiig-.
L. C X What Quaker^s meeting is i\tit *
Hilhm. It is that by Chea^rside • ' tl
well remember the; naate, 1 think it - l|
the Bull and Moulh.
JuKt, IMioutty. What time of the day wiEsit
that the meeting was doae at Mr. Rosewtll'tr
Hilton, He came f*ora Mr. lio«efrdr« a
little aOer two o'clock,
X. C. X From »ev*.n l^> two did he bold;
that h pretty lont^* winded.
Hilton, No^ he went in to dinner, and left us
there, and abundance in the conpreirunon ♦ jt
«w eel- meats, or biskets, or such tuii!
had. Uut 1 am sure we had oothint: i
was never among you before, nor erar eonvicted
any of you.
Urn. 1 liunibly beseech your lordship to m«ke
her sensible of tltc obligation aIic is uudcr Uy
her oath.
X/C. X Ay, Ay : 1 will. Look vou miatfVMg
you must take notice, here is the life of a man
in question, whidi is a thing of (^req^t consi-
deration. And for you to have any con<H*ru in
taking away the hie of a man^ if it be upon
tiilse afroundfi, is a very dismal thing ; l»esides,
that there is a thing which is yet of {^jrvatcr
wtijrhtand moment to you vouJ'i^lf* it coy
your owtiimmortal soul. You must
what g'uilt you contract upon yourself |_
tdl a lye ; *^bul tliere is a much greater ]
contracted, if you offer to swear a lye in a i
of justice, upon a cause of this couc
Consider, I tell you, you are io the pr*
Almighty God, ibal aeeth into the hearts \
173]
STATUE TRIAIA 36 Chahles
; that is the aven^^r of all lying and
tha.t itiiy justly sink voii into HeU, if
_. ofer to swear a falshood. Therefore, 1
<iar^ yoo, in th^f name and presence of that
pfoX God, the judge of heaven and earth, to an-
nptr Be truly to this qiiestion : are the^e tliin^<
llmi jou hare sAvorn here true ?
HiifM. My lord, they are every word true.
Then is a gentlewoman here, one Mrs. Col-
lagwwid, that shall wKness I set them down
ttaday ; and went away to the recorder, and
|iic hifii an account of ttiem.
Mi, Gen. Well, if you have done, go over.
L.C. J. No, hold.'Sir, will the prisoner ask
hv loy questions ?
Mm, Yes, my loni, with your leave.
L C. J. Ay, in God*s name, what you will,
ifat ■ fitting to ask.
Bdi. Mistress, what isvour name?
Bihcn. My name is Hilton.
Jtoi. Was your name ever Shafloe ?
"EUian. Yes, but mv name now is Hilton.
Bn. Or otherwise Smith, I suppose : for I
taw heard so.
mM. No, Sir.
Im. Then, Mrs, Hilton, upon the oath you
kMetdtto (for I hope you have observed what
i^ltv^ has said to you'about the sin and dan-
frtffte swearing)^—
Mr. Rosewell, God forbid I should
e to tell such a lie as this, if it were
A to my knowledge ; I would rather
^ak loi than more.
Jfoeyou at Rotherhith that 14th day
Vei, I was. I waswith Mrs. Smith
« iMrftmse over night, and went with her to
AAsitt at seven o'clock next morning.
Mm. Whoae house were you at there P
EiltM. I cannot say at whose house it was
tf aj awn knuwledifis for I was* never there
Mr in all my life ; but they said it was one
OanielVk house.
Mm]
What street was il in ?
^ioa. I do not kntiw what stret't it was in,
itfiiueai West-lane.
What kind of baildin^vs were there in
Ktttm. Over-airainHt it, a little way from
time, i^ a hrid«j:c, tliat we went over ; 1
iere it ina\ be soine ten or twelve doors from
tikMse. '
In the street, you say over-against the
BZtov. A little way frf»m it. Mr. Wosewell,
9JN do remember (1 can remember these
very well) thercwere shutters in the win-
' the sun catne in, and you were afraid
tks that went by should hear you.
a was not lig^ht enough, and*vou
i that one pari of the shutters mfg^ht
M ; which wds doni^ : and then vou
dial half might be shut again, for Foar
lleslwuld over-bear ytm.
Wfatf kind of ehtnuioe is tliere into the
h. IWa is an entry^ and from the entr\'
1
11. I684.— /(w Uigh Treason. f 174
we went into a little hall, the rooms were but
of a low height.
Ros. \\'as it in an upper room, or a lower
room that I preached ?
Hilton. It was in an up|ier room, you were
n|) two pair of stairs, the chamber was hung
with sad-coloured ])aper, and a sad coloureu
bed was in the room ; upon the left-hand, as
3*ou stood, there was a chest of sweet wood
stood, and a little cabinet u|)on it, and a glass
over that : and upon the right-hand, on theside
of the chimney, was a closet ; I took very good
notice of all tliesc thin^.
Ros. Two pair of stairs, upon your oath, you
say it was ?
Hiltoiu Yes, it was two pair of stairs upon
my oath, Sir.
Ros. How many steps, Mrs. Hilton, were
there?
Hilton. They were low stairs, eight or nine
to a pair, I think ; I did not number them, Mr.
Rose well.
Rtrs. The other says, there was a little room
up six steps and that I was but one pair of
stairs high.
Hilton. And there was a garret, my lord ;
which I am sure there was above 400 people
there at that meeting.
Ros. Did you sec that uumlier of people
there?— H//^m. Yes, 1 did.
Ros. If you were within in the room, how
could you see them uU there that were below,
and in the garret, as you say ?
Hilton. When you went down to refrcjsh
yourself, to dinner, as I suppose ; sdd 1 to Mrs.
Smith, for theL#ord*s sake, let me go out, for I
am aifrightod out of my wits to hear such stulT
us this.
L.C.J. Frightful stnft' indeed.
Hilton. Says »i>(% you caunntcfo out (ill they
all go ; tlure is noCoily to let yon out ; but
I would fain havch-i^i j^'.»t ontlhcisc**.
Ros. What time did }ou come thither, sav
> ou ?
Hilton. "We eamc by seven (rdot'k in the
morning.
/^^^ How did the cXtn isc lci;iu ?
Hilton. Between scvni niifl cntrhi.
Rt». 1 du nut ask you what tiint;. but how il
began ?
J Jilt on. Vou made il kind ot'a prayer, I do
not understand your way, for I ne\ er was used
to vc»in' meetings, 1 ucvcr was at any before in
my life. \ on took your text (I cannot be po-
sitivi' which, but it was) either out of the *iOi\i
or 'Jlsf ehaptor of Genesis.
Ros. IJut can yon remember these wonls, and
not the chapter !'
Hilton. 1 can loll you niori; tliai \*in jsaid, if
you please.
Ror.. Mrs. Hilton
^ L. C.J. Ui her go oil : \oui.sLheraques-
tfrfn, and will not stay for ua answer, but gu
Id another thing. S\iv i ; teliiug yt»u what wan
done.
Hilton. This I am po-ilive in, it was tiic '2Uth
or f>lU chapter of licnif^iis : tiie' story wi**
STATE TRIALS, 36 Charles H. i5S4.^Trt«/ of Tk^mai RoMewtU,
^
P
I
nbcmt Alimham midSarmb, how he bid her call
hersejf hm sister.
Rif». Tbal i« rhe ^OiJi chaplcr,
L. C J. Na V) I su}»|iose you om remember
the text bttter thao thu womun.
Htiimu 1 believe it uas ibe 20tU, that jou
(Ud most ex|Kimi4l upoa tlibt day ; for you said
at loiit Abinietech tuade Abraliaoi a jtresent,
\rhkb you did tUiuk might be about ^ giu-
rteat.
ll^i. I see you aie thurougli^iiiiced.
L. C*. X I^letUinks sht^ brouglit away much
©f your precious stuff for one lime, upon my
word, *
Hoi* Hou' long* did you stay tlicre, 9irs.
Uiltou ?
Hiiton* I &taid ibere from tlie time you
came til to the end of all i about ek^ co or
twehe o'clock you weot down to dinuer j They
that uere tberJ staid till you c^ime up aguio,
irhieh v/ks in the attertioori^ ftnd Iheu you
began upon a text which you took in the
P^ms, i think ; I c2imot positively say where \
but a new text you did take, that you did,
itof . Iti the Rsalms did you Kay ?
Hilton. And if it nlease you, Sir, I never
saw you but thco^ and noWf in my lite.
Ito^. What habit wo^ I in ?
Hilton, You had a carablet cloak on that
had an eye of blue in ii^ and a mourning hat^
band about your hat ; and upon the beikido by
me sat Air. Atkinson in a mourning cloak, and
his two beys.
Mm. There was some stop or pause you say ;
yott call it a dinner?
Hilton. You went to dinner, I suppose ;
I know not wl>ere jwu wer^.
Ras, Pray bow did the exercise begin in the
afternoon ?
Hilton. \ cannot Tery well tell.
Ros. Was you there to the end of it f
Htiton. To the very end of all
Rot, What P»dm wis read, or w bat chapter
that I preached upon ?
Hilton, Sir, f cannot remember what your
Psalm is. These are the words that you said^
and that vou preached. Sir, I cannot remember
how all tnese ciroe in, nor alt the stuff that was
iaid.
L> C. X She says she cannot rememher all
your stuff,
Hilton. I was nerer used to a c^ntenticle in
my life ; and 1 would 1 had not been there
then.
Roi. What was the text I preached upon ?
Hilton, In the mitrnintf it was, 1 tell you,
the ^Oth or 5 1st cbaptcr ot Genesis. Bnt the
head* of your s4^iinon, and after you had
talked ahout tbe kni'^, and all those things,
ffis about Abrabani aih\ Sarah
Rifi. But what waa til e text in the afieniooo ?
Hilton. 1 cannot ttll that truly,
Rq$. Then upon what occcsio'n were thoee
words in the mornmg about flocking to tlie
kJQ^tociirc the evil r
Hilton. Sir, you said
X. C* /. How can any body tdl what oc-
fl [1T«1
at I knoW^
casion you could have. You bad no
from that text, nor any other text that ]
of, toialk of tbe kuig'or the k»«g*s etil-
Rot. But 1 speak of the coherence of the
discourse, mv lord.
X, C- J. \ ou oreach without any eoWciiei,
or you never hau been brought here. Wlioi
you give youraiclf the liberty to talk of then
lhtnpf»« yon ramble from your tejit.
Rot, 1 nieuii by it, my loni, m hat |*ari of tht
diapter it was that did lead to it ?
L C, J. No man living can tell ; «t waa ttut
devil led you to talk treason ; Tbe ii '
tells you so, that you had not the fr ^
bcfVjre your eyes, hut were moved ami icuuctui
by tbe nistigation of tbe devil to do kL Wlk^
leads people to do all »orts of wickedofSBi
ibetlevil ? You can give no reason for ityour«j
seir, nor no one eke.
Rot. Were these worda delivered b
fonmoon discourse f
Hilton, T do not know what yott call fcie^l
noon, or afternoon; 1 am sure we
dinner^
Rm, But was it all before, or after I
oif, and went down ?
Hilton. Before, Sir.
X. C. X She says it was before you weot i
dinner i but for her part she bad no dinner ai
all, she says. If you have done with IiqTv tbco
goon, 31 r. Attorney.
Att.Gm. Where is Mrs. Joan FarrvF
Farrar, Here 1 am, Sir.
At I. Gen. Pray, will you tell my kirf aorf
the jury, were you present at this house wHeo
Mr. Roseweitjjrcaencd there ?
Fur. Yes, Sir, 1 was.
Att, Gen* What did you bear him say t
Fur, Do you ask me of the 14th m' Sep -
letnber, first » Sir T^^Att. Gen, Yes,
L, C. /. Why, were you there at any tAh«%
time ? — Far, Yes, several time*.
A(t. Gat. Well, take your own way of de-^
liTenng your evidence, and give an account < '
wbat you know ot the prisoner,
L. C. J But, hark you, be sure yott tdl i
thing but what is truth. You muat
here is the life of a man at the stake, and ;
own immortal soul is at stake too, Y^ou are i
tlie presence of the great God of heaven i
eartn, that seeth into all your actions i-m^
thoughts, and searcheth the hearts of all maa*
kind, and therefore have a care of contracting
any guilt upon yourself by lelhng any lye j
be sure to say notning but w'hat is truth.
Far* Sir, I was not in tbe room with him ;
I was in a parlour or hall, what do you call it«
a low room ; and be was up stairs above it.
Alt. Gen, But were you in the congrega-
tion? Were there any otlveroflhe hcarera in
that room among whom you were ?
Far, Yes, Sir j there were a great oiany of
them there. Sir.
Att, Gen, Well, whatdid you hear htm aay f
Fur, Sir, oonoeming the evil was the first
thing 1 heard htm aay ; and he matle it aq%.i
that it was not tbe king that cared it, but ill
4
STATE TRIALS, 36 Charles II. l684.— /or High Treaion.
[ITBT
ihoald flock to. It is we they should
%y% he ; for we are they which are
Ks mnd the propbt-tK, that by our
» core the ipie% ances of the ])eople.
'n. What did you hear him Kay more
be next that I observed was, he suid,
IT two wicked kin^s together ; but I '
tell who he cumpai'cd them two i
ip to ; but he bid the ])eoplc stand •
mndples, and in time they sliuuld
tlidr enemies.
T. Pray, have you heard him at any
es, 1 have heard him at other times.
r. Did you take notice of any thing
ainaC thegfo?ernment ?
beseech your lordship, may these
estwns be asked ?
Yet, I hare told you already ; to
* practice. It is uot at all a leading
What did you hear him say at any
about the goveniment ?
I a mill, it was bv Hothorhith-wall,
liBn'a, tie pray eif that he might not
lisrd ia not ]>raying fur the king ; but
night please to open his eyes, or turn
Can you remember when that was ?
; was the 17th day of July, no,
I, to my best remembrance; and
tnh chapter of Genesis.
. That he preached upon there, did
.Yea, Sir.
'mJHd vou hear him say any thing at
•toe?— fVir. Ves,8ir.
Wm What do you remember about
nriet?
Tell us what you heard him say else?
t West-lane end, at one Paul Shcd*s,
a preach concerning the fire of Lon-
tifhleeu years ago. That there was
pmX rich*man, that lived in Grace-
net ; he said, lie needed not name
Moaed they all knew who he was ;
la there went a poor man to him, not
la aeitber, but a carpenter, an huiise-
kbonring man, ami told him how to
la fire; and then he preached, that if
tbcin for that great man, that tire had
I Mr the fires iu South wark or Wap-
il had not been for the lord mayors
Im Have yon any more to nsk her ?
kr. What h«i%e' you heard him say
hb No, my lord, we have dune, 1
i Aaswcr my brother Jenuer*s qucs-
i[r.- Whataliout people in scarlet ?
MB aAsr he hail preached concerning
■'■^idit was a fine sight to see fools
M ; and be heard the Itecorder
lia judge.
» ham atrange stories it seems.
■■hi of this, brother Jexmcr ?
Ros. God forbid, my lord, this should be
true. I
jL. C. J. You see she swears it.
Just. Mithint. Mr. lioseiVell, will you ask
her any questions ?
Hos. Mistress, you say you were at the
meetings on the 14tli of !*$eptembcr ; pray iu
whose bouse was it?
Far. It was at a house at the end of West-
lane ; there are a row of houses that lace to
the fields. — Rm, Hut whose house was it ?
Far. They said it was (me DaniePs house.
Rat. In what room of the house were you^
Far. In the lower room.
Ros. Did you see me there ?
Fur. Sir, you were gone up stairs before 1
came in.
Ros. You did not see me there upon your
oath ?
Far. No, my lord, I did not see him.
L. C. J. She said at first, you were gone up
before she came, and she was iu a lower room.
Far. But I knew his voice.
L. C. J. Did you know his voice ?
Far. Yes, Sir ; I had heard liim several
times.
Ros. Did uot you tell somebmly that you
heard none of these words ?
L. C. J. Were you asleep all the while?
Far. No, Sir, { was not asleep, I did not
sleep while I was in the room. 1 never slept
in your presence in my life.
Hos. Were you tlicre at the beginning?
What time came you in ?
Far. Sir, I believe you had read half your
prayer ; I was atthe beginning of the sermon.
Hos, Who came along with you ?
Far. I came alone ; my child was uot well,
and so I canu; lute.
Ros. What was the chapter I was upon ?
Far. It was upon the i3 1st of Genesis, Sir.
Ros. Upon what verse of the iiUi of Genesis
was it, that you heard these words?
Far. I cannot tell what verse it was.
Ros. I ask, my lord, because 1 went dis-
tinctly upon verses.
L. C. J. Prithee, man, 1 care uot how thou
wentest on.
Ros. Cannot you tell how they came in ?
Far. No, Sir.
L. C. J. Nor any one else, 1 dare say, how
such wonls can come in ?
Hox. Were the words spoken together iu
that exenisi" that you have sworn ?
Far. Vos, in that exerciM*.
Ros. How long did you stay there ?
Far. Till you had doue, 1 believe it waf
two o'clock.
Hos. Was it in the ioreno(»n ?
Fur. \\ e had no dinner ut all ; I cannot tell
what you call forenoon, or attcrnoon.
Hos. U as it all spoken uj)ou that chapter,
upon your oath ?
Far. Truly, Sir, 1 think it was upon your
tirst text.
L. C. J. If you have done with her, let her
go over.
N
STATE TRIALS, 36 Charles II. i684.--7Wii/ oJ7%mm Ramwdl, [ IW
!
I
■
I
Ait* Gen, We iKall call one or two inotre of
his uu<Uu>ni at nthcr times^ that will g^ive some
ftecouiii of \m way. \\ here ts your man, Mr,
Atterliun' ? VVhiiC is his liuroe ?
AtUriur^. P«tcr» But hereii one of tbc
Ait* Gen. Swemr him then. What if bis
nami' ? [He una sworn.]
At t a bury, FUihtTt Cout, he (^ys.
Httovdtr, \Vt;w you an officer m this place P
QkiA:. YeSf in St. Mary ^luuithu^s 1 was ;
8t- Mary Mfi^ihilpti, UenuoiuUt^y ^mrish.
liccordcr. VVeic v«w at tlu 40!'
any procesjs ai^ainsl IlosewelVs «
OjoA% It' it uitrajse you^ my loni, i luii .* uar-
^nt vVoin !»ir Thomas Jeniterf to nerve ut one
t^c4tly*s house, a luieklnyer m Hotiierhith ;
auii tk Urn I came to tin? itoiis*; to sene it, tUei'e
Wafc fihut|«iiino€ ot' peojile, ajitl a gTeal riot was
tnndp, but uo bloi«s 1 cimiess ; hut a greitt
tiiinwltoi'jw«jj)le. that had not J ami the b«^dle,
oneSttuiuel Bennt^t by tiiime, caused the peupW
to stiiml clear, I i]u not kuo«v but there might
hiive been mischief ilone* Of which i*c upon
that ffave un account to sir Thomas Jenoer,
«i»l he hnih bouod some of the |ieopU; over H>
thcsesiiqrms.
L. C. J. VVhat do yon mean by this» geii-
tlemen T
^^f* Gen. My lord, we have done ; this is
aijly ahruit Koiue disturbaoces tliat the king's
otiiceni meet with, in executing proceiis atptiufl
these convtoitictes.
L. C, J, But what is thiii to tht prisoner ?
A(i. Gnt. Here is ^>me woulif have him
enlled ; but { eotifess t»€ cannot make any iis^
of Itis evidence against ihtp pii^ner, oidy as
to what is bmitd in the imlictineut^ that he did
it to disturb ihe peaco-^ -^
L. C* J- Pish, that is uuthing, the officer did
hbdaty; but wliat is thai to this biisineiis ?
Have yoti done, j^^entlemen, for the kifiy; ?
At I. Gcti, Yi'«, my k>rd, we have done.
JL, C. J. Then* Mr. Hosew ell, now is your
time to make your defence j and you shall
have time to make it as fuli as you wdK
Sim. My lord, may I have the favour to
have iho ludictmcnt read aj^am in Latin ?
L. C. X Yes, yea, if you wilL Ilcad it
rain.
Tjim, I huriihly thank your lordahip, only
lie words, my lord.
CL uj Croun [reads,] ' In (juadam illlcita
* assf^Tubiat^ 10 pru^cntia et uuditu divensoruni
* aubdii* dieii Doiului Re^is, adtunc et ibidem
'tllidtcet sfditioise asiieuiblat* et cong^reg^t",
* as2feruit et declaravit <{Uod poputu^ (s»ulMtil^
* dicti Uomini Rvg'is nunc, intiuciido) coaduna-
* tionem ftcere (Anj^lice made a flock inu)
' tiicto Domino Re4;i none, bob prxtexta sa-
' nmidi morbum regni (Ang;tice the king's
* evil) ijuojI ipse (dictum Doroiuum reg-cm nunc,
* itcrum innuendo) facere nou piilest ; sed no«
< sumtiii illi (fieipsum Thohiam lloseweli et aP
' !iaiitio(>a!» tt proditor* person* innuendo) ad
* 9UOS ilU (ligeoii subilil* diet* Domioi regis
* uitac, ioaueado) debent accedcre '(Aoglicai
* flock to) ^uui DOS (seipsum pni*diat' Thomain
* Rosewell el at* nedti' el prfwIit^H * fttwam*
* itcrum innuendo) unmus sacerdotes ct pro>
* phctie, qui pr*^ibus doiorcis ip^orum (lig^etM
* suUtit* dicti Oomiui re:>is uuui\ it^rrum ttuiii*
* endo) sanaremus. Nos {nubdit* et hg^eoa
* hujus regni Ant;-li(c innuendo) habuionus nunc
* duo«J ini^Uus leges (!!)ereoi>sinium r';tro1uni
* pruuuui It u per regem Anglta*, et <i
* num rcgeui nunc, innuendo) in-
* periniserunt Uumauam su|>erNttUoti< j : vi-
* l^rlice Popery) itit^reili (intra hoe ir^juifo
* A ngliu% innuendo) iu eorum •
'' glice under their noses) i^oi y
* luu) pnioum nu|>er reyefu Am
* J>omitiurn rej^jem uuut, inuu^ 1
* po&iunt ad nullam perjionam i... . — . ..^.j —
^ i>imutn Jei'ohuam, El si i|»si (<Livera^ iua)«-
*' disiposit' i-t &edit* person^ adtunc et ibidvm
* cum prefiii' Thomam Rosewell ilhcite ct §«-
' ditio«t' a^^emblat^ et congregat'^ rxisttn' in.
* nuendo) ad lundameutar ipso runt
' rent (An>;:hce would atactd to their ^
* ipae (seipsum Thomam R<jseviell miiu
* noil timeUat quio ipsi (seipaum
* Bo'tewell et pnedict inaledispos' et
* person^ sic ut pretertur aMcmbhi* inauendd
* m«micos8uo5(dictuTn Dimunum reu
* ct li(reo& »utHtit' ipsius Domini r*
* innueudo) vincerent. *it ut in p-^'^t'
* Ctjm cornubus ariet\ pal mis i
* broktti platters) el lapide in iui :_ ^ ...^...^
* Siing) ^c**
Rt}i. If it please you, ray kirtl, ihal uhlrfi I
object agamst, and desire to b*
your WdAhip, is thi» ■, 1 ao>
dpeakingwo*^ abfmt flocking 10 ii
cure lb e king^s evil ; and it is in t
mcfit called ^ Morlma Regni Anglici,' liiai js
ihe disease of ihe English kini,'dom
L* C. J* No, no ; it is * Morbus Ite^ni, An*
* glice* ihe king's e*ilt
}io», 1 do nut understand how * Morbiia
* Regni* can he the Kirtg's evil
L. C* J* Therefore because th* «
word in the law for lliat distent 1
up by the word * Attglice/ to .si
meant*
f^o a|vl
rlptl
ihey
Ha$. Btit. mv lord, I understand there arc
proper words for the disease ; as Struma^ und
Snroftda^ Chose are proper words lor ii, not
* Morbus Reffui/
L, C. X Not at all lu law, those may be
tlie wonis used amoiig physicians ; but in
legal pnH'ef*lin|^ we are to ket»p up ejtacily
to the lef;al n^iittes and phrases ; and w her« wc
have not an usual iior«l, then we help it iii|i bj
Anghce's : and so we here express thatiety
dibtemi>er, which is called by i\w nanie ol ihc
king's evil, by a wonl framed as near to a law
plirase as we can ; and to shew our toeoiiing
in it, we add, * Anglice* the king's eviL
Rot. My lord, IS that Ihe phrase ibil it
proper for jt in law ?
L. C. X Yes, yes, it is very well eitpr
to shew what is meant.
HoicwdL But, loy lord, < Mocbtis
^181] STATE TRIALS, 36 Charles U. i684^>r High T^ra$mt.
kin Engiib |if«|ii^j^be disMse of tli« kmg-
i^ C J. It iH 80^ ihe Htsease of the kin|r-
4wn ; il'ibeybud i'<iuo n«i fiirtbt-n bul lelt it
tet» It mtgbt t. lU'h an inter|>r^tatton
ptttflponit. Bi the words nre so
iiiikiguoa& iu Li«fj(if ihc'v aio rptlufcil to a cer-
taUMj. by (luUifitf an * Atiifliee' ii> them,
Rm. I t)iought it bad b*«n Anglici. My
Urd^ tbere i« another ^*hra*e that I obie<?t
l^tnstf it says, * Nos hiiliuiuiu:; nunc Juos
* alfBOt Ri|?es imitmil/ Vly loni^ this cannot
he uuikiifoni) f^rtwo liin'is oni^ atler auothcr ;
bill innmnl mnketsi it to l»f l»e»th al once,
£. C X ^f^>, wehttvi* had uou lotjether two
" lliQt w€ do not use to exiiress so in
The trcrds do tlius sound in Eng-
HfTf* nrp fwn wm-ds in$imul and itwwf
^ time. My lottJ, t
Jiisuhile tipon the
tUM tin >* w L*t lU wrre spoken by
1 filill liup and ahvays must deny the
.C'J' Hetnkeitso.
||({»T ■■'■' ' ■-' t - -• -rnivK
I- C* X I (d wrtli your
vvtili. F' v.,.,j^.. ^ ,. I that you said,
VTeba* I V iiad tirti wicked kings together,
too) ^il> r» >^ii*Jy*
I Rm* H that he an Anglicism, this cannot be
) L. ^ . if it t^ a blunder in the I^tin,
. t of your making ; Ibr you
^AMiu Eu^libh, and the Indictment in
♦^Tiit'tJy |iurs«e your Eughsh.
^ Jln» '*" •! . bert' i^ anotlier exprts-
t lhJ, * iifimanam snper-
ta come in,
L* i hat well express<»d ?
H^, i'is *. ,.,vi*i may be superstition in
ife worship of the Cliifrch of Home, and yet
ikdEitJi Lwttir liiin ' we call Pnper>.
L. i y iif#, you siiy rig^ht ; but
liicuii I the same r<^i^Hon, as the
fmmtt pktnuh/t you objrcteit against aliout
but R«tfTii.' Beraii«c *■ llomana Super-
* is such a general word, and because
! jfCTcmi supcniitions in the Romish
ieb, abundance of them ; and this may
' it onrcrtain ; and because we have no
wnrti to rYpretui uhat we call |H»pery by^
there la an Ang-Uce put m, to shew
i tf Rirant.
Sim, Tben^ my loul, it is said * in eoruni
* Oqiil»^f*-tn ic ll.il rnrKl IQy lofd ?
L. » id'cr their nnses f
Roi _<^t.
£. C J- IVftv^ bow wouid ycra put that into
latio, uTirfr T th^ir noses?
RiK , iff sbould spcHk aecording
t^tbr ^ of the Latin of this Indict
mtnt, r lordship says muKi exactly
p«mu' ^Itsb, I wouJa r«nd#r li * sub
[182
L, C. J. ^uoh fieople suffer ccmTenticks
under their nosfs, •- in eonmi couspcclu/
Just. HoUimmf, It IS tyiA ymw nose thrit 5
L.C, J, Sutler relw'lluju ui>der your no-si'S
are these things * 8ub nsribus^^ or ' in co
" spectu V
Rtm, My lord, ibis could not po^sildy \m
spoken of the late kinqf, and I his Umu; ; when
the preecdent king died a professed zculous
ProlcNUint ; and tiis |ireseni tnojosty has so
oAen, and earnestly declared a^atnst it*
L. C. J. We know that rery well ; but yet
withal we know, it was the pietonce of Fopery
nnd arbittaiy powcr^ and thoj^c lUin^s, tbut
brought tbut' blessed Martyr to tlve scaflToM ;
and ihe j^real cry now at this day, by all f^ic-
tious and seditiou.'i busy iWlovvs, is ag^oiniit
popery ; as if it »v ere just breakini; in upon
us, and the government abctteil it ; when it
is all ffilse, nothint^ more uutiue : ilk: Indict-
ment calls it jo^ says these wortis are fipokea
* falso cL nialttiose ;* and all trea ons are so*
R4>s. Then, my Inrd, there is anolber thing,
^ 8i ipsi starent ad FuudaujenLabai'ornnrt, An '
* glicc,' If they would sland to their princ
pies, or principals ; tor I know not how it la ^
in the iiidii^tmeut. Pray, my lord, bowcoiucs
* Fundanientalta' to *i^nify principles?
L. C. J. Their firinciples, that is, their fouit*
datjons, or fundan^entalii. ^ U the fomid.itiun
* be destroyeil, uLat ean the ri^jliltons dof
savs the Pialniist. The Latin bible cx]»re
etb it b}' * Fundamcntalia,'
liu$. Then il is * si ip«ii' in the tliird person ;
now, my lord, in common sense that mutt
needs reler to the two wicked kin^that were
spokenofju^t before, or to the king, and hl»i
(subjects sjHiken of atterwards ; and then sure
it cannot be treason.
L, C J» No, * they' that ig, I and you that
are here. It was spoken to your congrefj'a-j
tion. If they would «itand to their pnnciplcgJ
then come the broken platters, &c.
Roi. If it were spoken to iliem, and of
them, itujust have been * you* or "^ we.' Then
it is added in the end, my lord, * Fialis l*a-
* tinis,^ broken platters i your lordbbrp has
remembered me of that wotd. My lord, I dk
bear that Mrs. Smith did swear at Kingsto
assizes, it was Pewter platters.
L, C J. I do not know wliat she swo
tbere ; now I am sure >hc swears as it is in tb
Indictment.
Roi, 2^1i$tress Smith, F*rav did not yo
swear it was pewter platters nt Ktng^stm ?
Smitft, No, I never said othtrwifie than I<
now, and that is, broken platters.
Roi, 1 did hear she swore pew ter then. Bill
my lord, I conceive if it refers to toe. and the
people that were there, it shoidd have lieen, as
the former sentence is, in the first person ?
' We' bare had, &c, hot here it is changed
into the third perion, and tberefore caADOt '
so meant.
X. C\ X But it plainly ipeaksits own i
ing, that it \h meant of the people there.
Rm. My lordi itien as to the luouenda**. f *
18SJ STATE TRIALS, 36 Ch arlbs II. l68i.-*7Viii/ oj Thamai Ihfiewtlh [ISl
I
•ae there are eijj^lit or ten of Ihem* Whether
Are these to tn^tke such a constnictinti of n
iriiin*ti tfn?Anin^, whicli doth not oihcrwisfr siiiti-
ciently ap|Kiirf as td briug' a mna uuilcr the
guih oftrrnsonf
X, C. J. t i«ll Tou the inedniintr is ptain ;
if you ftutl lie, such f.)lse trnitorsi im are samJ
to be ilicre aisv^rtihtecl \iith you^ will but stnnd
to our |>i inriplt-M, we &h:ill overthrow and de-
stroy our ciietnlei ivith brakcn platters and
rani'S'hotiis.
Hiir, ItiSsaUl here *i [I'M? won timtUat<juin*
— Of whom hhouti) I spenk that * ifite ?*
/-. C, X You were speakingof \oiirseif and
ttmt is in the third pcrsoo, aad
III _ ! number.
SoL Ocn, (Mr. Finch) No^ the jurors that
find thi> Indict meiitiay, that he said so, and
thftt niuA be lU the tliird person.
Hot. Thnt is not accordiuir to the rest.
Just. IVithins* 'They/ is the people with
him; and ' he,* is he himself; thai is plain,
aud can have no other construction,
Hoi» Now, my lord» will your lordship
please to accept a froe declaraUou of the Irutli
of this matter r
L, C\ i. Ay* ny» go now to the fact ; now
we are &r^t o?cr (he exceptions to the indict -
toeflt. To answer the fsct is most proper at
thui time.
MotetvclL Theti here in the presence of the
great God of Heaven, the rififhteous jud^e of
all the enrth ; htfore whom yuu and f , and all
that are here, must one day a[i|>earf at llist ter-
rible bar of impartial justice (and a glorious
tribunal it will be), to give an account of alt
thinjips that wa have done in the body» whether
they be good or evil : and I am told by my
blcsNcd Redeemer (who shall also bo my judife
that day), that an account must be given of
every idle word tlmt I ?»l)all utter, how much
more lor lying' and nnrjurVf and false- witness
bearing? as \our JoriUhip (I humbly thank
you fhr it) dicf very seasonttblyiiug'i^.'Stto tho<se
that have witnesseil these thmgs against me j
1 say in the presenoe of that ^rreat God, and
HHslionoumnle b«»nch of rcvertjud jndgea, and
you gentlemen of the jury, ami m\ dtJir coun-
try men, lim! have been now sworn, as well as
retui ncd by the process of law fitr that end ; 1
do here must solemnly declare tlic truth luito
you, a:4 in the presence of this God I shiiU ao-
Bvvi r It h^^rmfWr. Ami I shall bt^yin with ibe
I t" these Wfirds first, where this in-
II uds ; for that seems to rcler to some
thinvs of the laie Ijioes; and aluo to my trea-
sonable intentions now. My lord, and dear
cotmtrymen, because I lieaM somclfiiu^ men-
tioned as to the lai^ unhappy civil warn in these
nations ; I can declare^ my father was no ways
concerued in those wars^* fur he was dead lis-
if ' ' ' ' ' n hut a child,
■« But for the
.SI MM, 1 N.iy ? that is Ion
•^ r, the barbarous u^tuxicr
4^ ^._ _,^_ J ^.,.^ Charles the First, ^?hom
I had once the happiness to see the ^oe of,
rather the unhuppiuess tu si'»^ in rt-Sf»cetof hifll
condition at that tiuj r under
tree, with some few J. m, whirls
very much atfrcted itiy httati, UuMi^h then but
young". So far wus i fnmi hfinir ''^i*? thai
would compare him to Jev
lordship will hear, that) I
abhorred that art. Fur ni
1 declare in tl»e presc^nw r '
bifll
with my snul, :
I could do him
my life uv^-* -
at bis foot
] was ouLc
kJ, [ woul I
■ .1... it ; I v;
Mj<L My lord,
la*-* of my hfs
for declarin^T tor his majesty m his exile ; wbwi
it is well known, few durst appear in thofit
days on tlie behalf of nn injured prince. It
was objected against roe, that I neve*' pfnyeti
for Oliver Cromwell, that had iwurp'
Fernm^-nt, My lord, I knew he stu'
i ; 11 ; he was an usurper.
that the kingdom would n t J
ptact: nil the ri^^ht heir, our itoxrr
IS, were restored to his right, 1 I J
that a gihb<.t sihuuld be set ul ...^
porch, and I hanjfed upon it, or at my owi
door, I preached upon that place of siriptur
Ezek. XXI. and the 27lh verse, * I will <*tc
* turn, overturn, overturn; and it shall bei
* more until he come whose rig^hl it is,
* will give it him/ And 1 declared i
sennon the several ovtrtumtng;s thni^
had ^iventhern then in powt-r. And tholl^
threatened me, yet God preserv< ' ii|
nt home, as he i^id my dear sov' ^
for whom I have prayed many unnMroi
thousunds of times, Aud it is well knowi
mediately after his majesty ^s happy ri**t(i
I did upon one of his majesty 'ti days
upon that subject : * For th*' itauk t
^ of a bn<l many shall he the y.
I preached coiicerning the ex\
narchy, which I shewed to be the cK
l>est of ^iwerumentJi, practised alu
where: aud I proved it from the t
the great God of Heaven, the mon
the world,, down to someof themeaii-
of creatures. I shewed it w as the p
God had s€'t up in his church, app^'
Lord Christ tu be the kinjf there ; ;
ani^cls there was the prince of them . uiuuiti
the celei^tial bodies, the suo in the tin
ment*^
£. C* J. Mr, BfiseweTl^ [ am very unwilUii
togireyou any tnlen'uption, becoUvSe td'th^
dition you stand in, being' a prisoner pk
for your life, U|.wn an accusation of hi^li
son. But 1 tell you, these thin^fs thatyot||
now insisted n(>on are not at all toHlie pu
as to what vou are br<mght heixj for, Vvu ai|
not here arraigned for your {|iioil works, bi
for yonr evi! works. If you commend yc
self'for two hours together it signifies null
farthings; antl the gentlemen of the jury mil
let it iro for notbin^^. if only seni^s to ph
your humour oi talkiii^, aad captivate the ;
STATE TRIALS, S6 CuAtitES II* 1 684— /or High Treti$on
I ^t it is not At aU to thepurpn^. Keep
tOfatter^ that tt is iricumbent upon
to ibe biisifwfiw you Hre iijion
QQf ^,.ft ^.Ilo jjcu upon our oatlis,
tld vbo are a to ilie govcrnmenl
iftdllMi hw far V _ ilo, to sec tbut thiiiy:»
ht^ooe aeoonlingtD bw. You are not here
' m tor votir goo^i Morks ora*!-
yon had never done worse
Atv ttaid of younidf. But liere
^ tVir IraittTfUts |»reachm^at one
lace imd one particular iitne ; an-
TUe jury niu^t ^fo, not according
' ' ii'cordinj; lo the
l^itd in this in-
"-»--- for
■ ver-
. .^, , ,,.. .- .,_^ have
you, you h:ivc at once over-
^^►od you ev<ir did, or said in your
bct4>rc.
.fiat. My lord, I know rrry inrdl, one such
fltCtMMi'is eiioujfb to nuur a lil'e of former
mmHimm, Rut thin thai 1 have said, was to
•hnr, liovt •lit those thtngii that lht>y
my constantly declared
bav««ifton
joikinitsit
L a J.
»lb<r
• e of people to
nljfbts pardon, i
■mbittortsf:imit- ^.,^.., ........ ^^„,-
l^rflii : bi3t iti<> ^vell kno^o, the devil has not
riidv liislruiriLrits ti>enn'v f-n Ijloodv
(tiiuti gratiited and advanced by hiin.
p «tircan say nothing; to wlratisal-
I of Ibrxner loyalty ; the devil surjirises
wmmh/^^fh^^ things : 'they do them, as tbein-
Aditi' liy the in^li^'aiioa of tbe devil.
Kw( 3ier bel'ore you,
iitaf. i' ly lor<l, to cut ghort. As
In idiA buv bis mi^je^tyN rctiim : I
kmn b*«!fi ' ■ — " of hi!$ days, and
pviliciilai '. \ I bave always
rifcjgnedat _ ... ...jon i and I did
upon one of itiose days preach upon that
X. C. /. And nil this ^ig-nifics just notbinc^,
1 upon thiit day you went to a convenlicTe
IfiinHtthe taw, and preached there; which
•bvw, what H coniormiihle man to the govem-
Bcni and tlie law you are. Yon can bavfj; your
OMlgfegilions of hundr^s of people, aad 1
^aW not what ; now t tell you all this makes
ftotlkiaif&gatiiflt you, nor doUi all your com-
imidatiofi make any thin^ for you.
Hdntr My )onl« 1 do not know any law of tko
iJnvdthaiiij ii^in"-' * hiii^ the Gosiiel.
JL t X \t
b4 the law "'.
Hat* My lord, 1 Uunihlv conceive it is the
of number tliat makes the trans^-
tticles to preach, ia
:d.
L. C* /. f I is not only a circumstanee^ but
l^tiifcata«ic« to pccach m a convcutidei a^d all
icuaj^lair.
Rot. If yoti call that a tmus^ession to preach
the gospel, 1 humbly acknowledge myself a
transgT^or.
L. C. J. I tf*1 '*"'*•♦'** a transgrresston ; bqt
it is not such n ^»un as that for which
you are here i n but, hecausie you com-
mend yourself «o much ; a nian« I must tell
you, thai every day doth noifirioosly trans^resi
the ]a\i^ of tlie land, iwvii not be so fond of
^viufr himself commendations for his obedi-
ence to the government amJ the laws.
Roi. My ford, I was only ^ayinif that upoa
the 30th of January 1 pi-earhed u]>on that text
1 Tim. ii. 1,2* ** 1 exhort, theref«>re, that first
* of all, supplications, prayers, intercessions^
*' and fifivmg'of thanks be made for all men ;
* for kiiigii ikiy\ '" "^" ' lie in authortiy ; thai
* under iTiem v J quiet and peaceable
* lives, in all ^i .^ ml honesty.
L, C. J, Amen ! I say to that pe'tiUoli,
Has. Amen ! 1 am sure I sity to it, with all
my soul ; and it is my daily prayer to my
God for my sovereign. And here I shewed,
that it was the duty of subjects to pray for their
prince
L. C. /. I tell thee, I care not a farthings
what I by text was, nor thy doctrine ; I wish
vou had been at church thougl), and been con-
Ibnuable to the lans. But this ls nothiog to
our business.
Ros. I had therein a sharp reproof and in-
vective against tbo^e that instead of praying
for their civil head cut it ofl'; and those that de-
sign and plot against the governtuent.
£r. C X You did abundance of goo<l by your
sennon, no doubt ; J shall not .now stand to
c^xamine that*
Ros, So far was I from harbouriog any trai<
terous thought
L, C, X Come, come ; all this is besides the
cnshion; eouietothc matter that is here before
us, man. 1 would not restrain you of any part
of your defence, either in time, or any thinj;^
else ; but let us not have the time taken'up with
that which no way concerns our question. Our.
business relates to what was said at your meet*.
iug, at that time the witnesses speak of.
Roi, Then, my lord, as to the truth of this
particular case, I'shall now declare all that past
then ; as in the presence of that God who
search eth the heart, and trielb the reins, and
who shall judge us all. U^»on the 14lh day of
♦September last, I did preach to some people
that were met at a friend ^s bouse, one Capt,
Daniel in Rotherhith : and as my course hath
been to exnouud the Scriptures Ttomake them
tinderstand them), I was, my lord, that day
u[ion the *2nth chapter of Genesis. The chap«
ter is about Abraham and Abimelech king of
Gerar. Now, my lord, will you please that I
shall <leliver to you what ^va^ said, by repeating^
it by^ word of mouth ♦ or read it 7
L. C. X Ijfo, lio ; I do not desire any of your
expositions, or nreachmeots ; answer tt/ the
lodicUneut, ana what is charged upon you
there.
Rat- My lord, I am about it, in
]87] STATE TRIALS, $6 Charles II. i684 — Trial of Tkomat Reaemett,
what was renlly said ; and I ask the favour of
deliver! ut( in court what I then delivered to
thein. My lord, it was thus: la the 9d verse
it is said, * And Abraham said of Sarah his
' wife, she is my sister;' from whence I ob-
served, that he had been gfuihy of this once be-
fore, in the 12th chapter, when he told the very
same lie to Pharaoh king of £gy |>t. And thence
I raised this note, * That a goofi man, or a
* friend of God, might fall into the same sin once
* and ag^n.' And in proof of it, I brought three
or four uistances. That of Lot in the foregoing
chapter, his falling twice into the same sms of
drunkenness and incest with his own daugh-
ters. T)iat of Samson, in the 16th of
Judges,) and there came in the mention of
Dalilah, that she spoke of, she only re-
memlters the name of, and not the truth of
the quotation), that of Peter's denying his
master, once, twice, and again; first, with
a he ; seconilly, with an oath ; and thii-dly,
with an imprecation. But the proof which
they in this point have most distorted, is that of
Jehoshaphat, who sinfiilty joined nith two
wicked kings : first, with a uicked father Ahab
in his ex{>eidition into the laud of the Syrians
against liamoth-Gilrad, 2Chron.l8tli chapter,
for which he is reproved as a gi-eat trangressor,
and threatened by the prophet in the 19th chap-
ter, and the beginning : and yet he afterwards
joined with another wicked kins*, Ahaziab,
Ahab's wicked son, to go to Tarehish- ; as ne
mav «ee in the SOth chapter, and the latter
end. And here, my loni, is the whole of the
bunneis concerning the two wicked kings.
In the presence of the holy and great God
there was not one word spoken of the kings
of England, either kinif Charles tlie first,
or his present majesty. This was as to the two
widced kings. And then, my lord, I came to the
7th verse, which has these words, * He is a
* Prophet, and he shall pray for thee, and thou
* shah live.' Upon this i observed, * That the
* prayers of God's prophets have been very pre-
* valent for the healing, and helping of others in a
* time of need.' And three proofs ] brought of this :
The last of which, was that of the ])rophet
Isaiah^s praying for king Hezekiah in tlie time
of his great and dangerous sickness. But that
which has reference to this business, was that out
ofthelKingsxiii.andthe beginning; ' When
* die prophet came to Bethel, and there rebuked
* Jeroboam, and prophesied against the altar
* there ; Jeroboam put forth his hand, and shook
' it at him, and said, lay hokl of him ; uiioii
* which tlie king's hand was dried up. Then* •
* upon the king intrcated the prophet, that he
* would pray unto the Lord his God for him,
* that his band might be rcstnretl. which the
* prophet did ; and the king's hand was restored
* again and became as it was before.' And
here is the business of Jeroboam. In the pi^e-
pence of God, I speak it, there was not any
the least comparison of my dear sovereign to
that accursed wicked pmoe Jeroboam, who
made Israel to sm; No, my ver}' soul trembled
atthathougfauof H wImb I heard it. Upon
this head I had this sentence, or obser
(which I will give you to a word) if I W(
die the next moment^ and appear before tli
rioiis tribunal of the heavenly majesty,
not the least he, or equivocaaon, or prev
tion, * That a godly man's prayer ia a
* reign cure of the king's evil ; whereb
' meanest, or the pooresit christian may gi
* and serve the greatest monarch.' And
not my saying neither, but the saying
exjiositor upon that veiy place of seri
out of whom I did quote it. Nor did 1
of it, or he write ot' it, with respect U
pnilicular disease that the indictment
* Morbus Regni,' but the king's evil a
king's own disease, in reference to Abime
who was king of Gerar. For it follow>
the close of the chapter, * God heard
* ham's prayer, and healed Abimelech ai
*■ his house/ But as for that word they
of ; 'of the people's flocking to his majo
* cure the kiii'^'s e\'il, uliich he could nc
* and that we were priests and prophets to ^
*tlicy -imst come for cure ;' in tlie presei
the eternal Ood ll;ere was not a word
Then, my lord, for that of the rams-h
I shall observe linw that came in by and
but first I will premise, that all this tha
been now spoken of, was ujion the expo
of that chapter in the morning. In the
Boon I preachcil upon a particular text ; 1
yith the reading of a Psalm and a chaptei
so far i conceive it was afler the rnanne
usage of the church of England, whid
joins the reading of the scriptures as pari
worship. I preachcil upf)n the lltli <
Epistle to the Hebrews, and the 19th
(tliongti one of the witnesses saiil it ^
l^lni)
L. C. J. She would not be positive, b
thought a Psalm, she could not tell.
Rixt. xMy lord, it was the 11th of If el
12. the words are these, * Therefore a
*' there of one, and him as good as dei
* many as the stars of the sky in mult
* and as the sand which is by the sea-she
* numerable.' Upon which I had this
* Tliat tlie great God can effect great it
' by very small and unlikely means :' A
(ot one)\vhiit was less than one ? None i
And this one too as good as dead ; and ve
him to raise as many as the stars in the
and the sands on the »«?a- shore. What
tilings did GchI dfect by the rod of M
which was but a little wand in his hand
yet a sign and symltol of authority ; a
sherifi's white Nta\ cs are. Never was tliei
great plaifue to be sent upon the enem\- ol
and his church, Pharaoh and his S^yj
but u|ioii the stri'tching forth that little i
came. And so, at the sieu[e of Jeriuho ;
dreadiiil dilapidations in that great city d
sound of the rams-horns make? What
rible anny of the enemies of the Israelit
Gideon's small host destroy with a few b
pots or pitchers ? (much less did 1 vm
plattci-s, or pewter dishes 5 M I have be
STATE TRIALS, S6CbARLE$ II. i68t.— /or High Treason.
[190
31 tU tiiiii oi lit I
liiKt ft» I bfive now
t iJac^ first swure). " And vrb^t a tfom^u*
lipiit dumiptoa diet Daviil itrtke tfoviii wUb a
fUMUf ta «^ ttbu^ ? And Mrlttt a i^tonoas work
W^wf I ^-''l ri»>i<it tUe sou of David, itn m
liiscii It %%itb a little clay ajid
tpillk ; i' ilirni iijilhe eyfs of one
MlGO«Uii»t:li &c?t\ itiAii to Open tlie v^sp^ t>f
^born l>liu«h Noiv here, oiy lurd,
^liolc truUi »u ibe iircscucrc of the cteniul
Hrrr yoiir lorasUii* sets in menUtm
upmi Uic second vejrse of the '^Oth ot
' t of two wicked Uiag?J ; but bow, not (ss
t ii) with any reHeclmu
: '^Haud ; noi were they
'' *:Te sworn thciu,
rm. Here i«
, -> tnjl, and of Je-
«t. juunuer a» ihey
nMntion of rams-
iie if) u liUnj,^ ;
WtCHH - ; ^ktl to the i^o-
f«fOiiA*niti or retcn xjice to tt, or refleclrun upon
it, «c the lun;:f mitl thi-s 15 th^ truth. I have
: m of the who?e a^ it
nay see htnv mitch
wrttches. And if
.s as really and in-
r vvIkiI «as thiMi said, their
• if con9<!iences cjinnot but ^0
, and roiitirm %vhat J have mid j
L ott ibftt was %t token by me thtit dur, wan
am I h»^^ rr' ' ' '-.r nboul the least refle<Hioii
r*J*! inwfoTiiior majesty and
<» L .or either of theai^ or
[t ire lEfyr eminent. And if
^lL•rt>^ I Jim m re there will
|f»? I yoa wilHind nnd «ee,
the kinsr's friends, but
^tiini th«»s have ftvlsly nccnsed ftti
, faithful, loynl silbjef t of treason ; a
[•rh«*-h my ^*ry souJ flhhorBthelhoii^hrs
In fif*y»r «hrrfof» if your lofdship will
4 re, 1 uill now orill my witnesM«fito
^ilh of nil thiM ttiatt* r. Atid alW
1^ coufe<5sion of the truth,
[ ^hall call ^vill te^iitifv
uMi iru«it in my jjitml God,
11, my dear countrynwn, see
' ■*■*!' ot ray heart in whatever
Me, Ha** I l»efii ^tltv
ti laid to my chanr*', Tl
•, Fray, Mr, Ciier, call
f^ C. X Ay ; cooie eall \f*%\r witoe<!SP^.
■" n. Ify lord, one thioyr ^ »ouhl desire to
^^irik lo yocrr Umhlnp. Your lontshiji wm
^Hlttntf thill i^hHi I declared of my former
li|fih') "i>tr ^^ whnt tiK' witne«»ies have
^tfAK* (d, I hftre read in a trwe hw-
teiy ^1 MMok iiie scrif^tureK will be owned by
fmwao* llMt fcre here tu be ^u<^h) of two false
•itar^*-^ •* ■ were siK-h ; they »re called
■»»i't ! prt^y God thesic be ikH i»c-
•■■ttr «**^ f»f lielial) that «wore,
*^3?«i»"' nte Gril and the kinjf.'
Llie^«Mt:'
klmt would yon have of us, imj),
Aay
/{47<. I am confident, my lord, yoiir loed^htp
and the court do not believe he itid »o.
L, 6\ X Tlie Scriptures tell us it was not
true ; Ho vou think we do not believe the
seriptui"efi» beeanse we lU* not heur yoti (oeiich
iu your oouveoiicleii ? We do behr\ c tlR' vcrip-
lures, iiiaui and \ie livlicTe too iltey have
lieen |jerverte<l by you, and other (>eojde, Iu
very ill |»ur|>oses. \ cs^ [ do rumemlH>r the
story of NulMiih; and (o Mhewyou that I can
remember some ludy history as well u« you^ I
can tell you of anotlter story, and that m the
titiiry ol 8u«anua and the elders, and there nas
I irciinkstauce of time imd place le?,tified lo i
but tt seems they uere deftciive iu ihrir proof,
and thereby discoverml. You would do w«U
to detect I be witne^^ses, if you can, in ^somc
contradiciiou, or talshood ; that will ilo yoit
more service, than harangues uruJs}>eeebes.
RosetL-ell, The God of Heaven will ilo it thii
flay, 1 trust ; far to hinu 1 have opened 011
cause.
L. a X Well, well, call your witi
and prove w hat you can*
Ru&ewdl. My dtiiir Reileetner himself wi_
served so \ nay condemn eit by the te!i|iiiioti|
of false witne^es, [Mr. Hudson came i«.} ,
L. C J. Come, here is your wittiesa ; nhi
say you to him ?
HosvuelL Mr, Hudson, were you present \
the meetinij;^ at RoLlierhith oa Lord's iJ^^ the
14ih of September last ?
Iiud$'m. YeSy H^r^ I was so.
RosewtiL Here is IVIm. Smith hatli swor^»
that eiince the beginninir of August we had il
meeting; iu our public Meeting-house r Warn
thei^aoy, pray &r ?
HuiliQn. rhere w&b none such, tltat I kiiowoC
Ro$ew€lt. She swears, that we were At Iftie
house of captam Daniel \Veldy*t» the )4th of
Sep tern IxT. Was it so P — Hudmn, No, Sir.
RoMCwtlL Vi hat pUce wasi it then ?
HuU»vn, It wa^ one cupluiti Daniert;*
Ln C. J. That is the same nn Ihey say,
R4f9rmeli. The tirst witi»eH»,.AVlr;i. feimilii/
said captain Weldy'if : ioik-ed, tlie other i<uil»
cuptaifi liun el'ij.
L. C. J. 8he sM she wiis ttild yo, but she
CKiold not tell ; but «be remend>er» yoa prayed
i'iyt him, and his child too, who wa« theo ill.
HmcMcti, Pray 8ir, as to the truth of the
buAiness^ ; Did you hear me speak of two
wickeil kujg«> i Thai^ my lord, iume in, I say
u{*on the M*eond t erse ut the SOth vf Geueait^
which t ihtn wai; eitpouuding^.
L. C. /. Nay oftk him in ^oeral what be
heard you say ; and %vh«lhvr he heard you
aay any thing of two kicked kiu^, and what
it was.
RmewetL Ay,&bout Ahah, and Ahaztth hii
son
L. C. /. Nay, nay, I must have luioe of
those thin^, w"e mtjht hare fair questions put;
for, as you tict.' we will not admit the king*i
eount^el to }»ut aoy questions to the witnes^es^
Dor profloce any vutneases i^aioat you, tliat
are lesdincTT or not proper, so nior mtiil you :
1913 STATE TRIALS, 36 Cbaklbs II. l6S4^TrUa of TXmum Rofewell
nborning ; you did only expound^ as
to do in the morning.
X. C. J. If you have done wii
should ask him a question or twi
vou, 1^, Pray what time did thi
beein? — Hud»on, It beffun about 8 <
L. C. J. What number of peopi
think there were there ?
Hudion, I cannot judge how n
were.
X. C. J. How many do you think !
Hudson. I believe there were a
40 or 50 there.
X. C. J. No more than 40 or 50 :
Hudson, Alas, we could see but in
X. C. J. What room were you in i
Hudson. I was in one of the chan
X. C. J. How many pair of stairs
Hudson. Two pair of stairs high.
X. C. J. Did you see Mr. R(Mewi
Hudson. No, I could not see him i
X. C. J. Was tliere ever a bed it
where you were ?
Hudson. No, my lord, th^ was i
X. C. J. Was there a dinner time
Hudson. There was at noon a res
tic while.
X. C. J, Did Mr. Rosewell go dov
Hudson. Yes, my lord, he cud, 1 1
down stairs.
X. C. J. Do you remember any i
was spoken of Samson and Dalilah
Hudson. Yes, as I said before,
about fcjamson's goinsr downtoTimi
Dalilah ; shewing nis failing, ho
twice into the same sin.
X. C. J. Did you hear any disco
canting ? Did you observe he used
canting?
Hudson. No, not that day, as I ki
X. C. J. Did you ever hear bin
word ? — Hudson. Yes I did one day
X. C. J. Ay ; What did he say
about canting r
Hudson. 1 am not able to tell y<»
actly.
£. C. J. You must, you roust ind
Hudson. I do assure your lordshi|
not how to repeat his expressions abc
X. C. J. For look you, Sir ; th
are not upon your oath, because th
not allow it ; yet the same thing
those witnesses before, the same I
you; you must consider, friend,
here to serve no turn, nor party ;
the presence of the g^reat God of El
eartn, who will call you to account
thing you testify here ; and tliereibi
any subterfuges, tell lui the trutli, and
plain truth without welt or guard.
Hudson. My lord, I will not den;
of the truth, nor tell any thing that'
i know I am in the presence of a i
of justice, and in the presence of tl
Heaven. .
X. C. J. Tell us then, what 111
said about canting.
But if you have a mind to ask him any ^ues-
tifins, what he heard concerning two wicked
kings generally, do so.
Hudson. Upon the 2d verse he was then.
X. C. J. Of what chapter ?
Hudson, Of the 20th of Genesis. I was
then in (he place, and writ. He was upon the
jtad verse, and concerning Abraham^s denying
of Sarah his wife. Says Mr. Rosewell,' Doth
Abraham here fall again into lying ? I thought
he had smarted enough in the 12th chapter,
for the same he told to Pharaoh : And doth he
fall again, and not take warning by it ? From
that you may take notice, that the best of God's
children may fall again and a|raun into the
same sin. And there you quot^ what mis-
chief good Jehoshauhat had like to have
brought upon himself, by joining with two
wicked kings : first, with wicked Ahab king
of Israel ; and after he was reproved for it by
the prophet, yet he fell into the saoie sin again,
by joinmg with Abab's wicked son kins' Aha-
siah. And so he quoted Samson, who got
mischief by taking a wife among the dauefh-
ters ef the Philistines ; and yet after he had
felt some smart and hurt by it, yet like good
Jehoshaphat, and good Abraham, he falls into
the same sin again, by going to Timnah, and
taking DaUlah.
Roseweli. What said I, pray upon the 7th
verse? ^
Hudson. The 7th verse was concerning
God's appearing to Abmelech in a dream ;
where God says, * He shall pray for thee, for
* he is a prophet, and thou shall be healed.'
And there Air. Rosewell spoke concerning the
worth and value of the prayers of God's pro-
phets ; wherein he instanceth in one thing, that
they were good to cure the king's evil. And
be Quoted several texts of scripture of the
worth and value of them ; and among the
rest was that in the first book of Kings, the
Idih chapter, and 6th verse, wherein the pro-
phet came to reprove Jeroboam at the altar at
Bethel ; and the kin^ stretched forth his arm,
and bid lay hold on him, and the king's hand
was dried up : UiM)n which the king said to
the prophet, * Intreat now the face of thy
* God. lor me,' and he did so ; the prophet
prayed unto the Lord, and the k\De*B arm was
restored whole as the other. And He did quote
that of Hezekiah too.
Rosewell. My lord, this man did take notes ;
and therefore may be the more exact.
Hudson. Yes, my lord, I have my notes,
and can read them at large ; and I Jid gene-
rally write, my lonl.
Kosewell. Tiien pray, Mr. Hudson, will you
declare, whether you heard any thing in that
exposition or discourse, concerning rams 'horns,
broken platters, and a stone in a bling ?
Hudson. That was in the sermon, Sir, in the
aflemoon.
Rosewell. She swears it was all in the morn-
ing discourse.
Hudson. There was not such a wonl in that,
m 1 know of. The semoo was uot in the
iSS] STATE TRIALS, 36 Charles IL \6U.—/ar High Treason.
Hudmm. He was speaking of the wicked
■en of the world, that when they spoke con-
cmuag serious religion, called it canting, and
«jra he. What is canting ? Canting, says he,
k a whinioff tone.
L. C. /. l>id you hear him speak anv thing
coacerning organs, and surplices, and white
govu?
Hudson. No, my lord ; nothing of surplices
Mr whhe govms.
L, C. /. Nor any thing concerning or-
Hudaon, No ; but something he hail con-
cerning the caihedrahi, and their canting tone
there.
RottwfelL Will your lordship accept an in-
gfnaoo^ oonfeosion from me myself about this
i^ C. J. No, no, Mr.
Jfbv
Roseuell, that will
_ __n neither acquit, nor
nnyourseiruv these thinj^ cither con-
1 or denied. It is your witnesses that I
■Ml ask, and that I expect an account from.
Ihcidbre I ask you, friend, and pray recollect
yoaraeif. How was it that he talked concerning
lie cantiiig in catheilrals ?
IfadboK. Truly, my lord, I cannot give a
later deM^iptiun of it than 1 have done.
fm I Mhher do particularly remember what
iaeii was that f heard him use that expression.
«R on I tell you where it was ; neither
■Imubsi when,
twntf. Shan I tell your lordship the oc-
LC. J. Why, do you think I belicFc any
wmk jm mf^ notwithstaudiuff any iinpreca-
tim sr aweratious you make about your-
adf.* IrsBst aeithor weigh with the court nor
^jtrj: we roust go according to the evi-
Mse. 8t. Peter himself, that you say you
■U of, denied all with a mat many asse? e-
■iMs; hut that denial did not make him in-
•MBl, DO, it was his sin. 80 allyour imprc-
■im, and assererations, and amnnatioi:s of
fwravB innocence, do not signify one farthing
lM||i cause.
Jut, Gen. Hark you, Mr. Hudson ; let me
9AymL one oacslwn, Pray when Mr. Kosewell
iiifiphiiied those texto of scripture, diil he
■t Me frequently to make application of his
T^Mkms ? — Hudwn, Yes, my lord.
An. Gem, Then, i>ray. Sir, •i'ier he had
iAn of the two wicked kings, how did he
%that?
Imm. My lord, I will tell you how he ap-
|[|hiiL After he had made those quotations,
[ t%i he. Take notice, if Abraham fell, and
ejchoshaphat fell, and Samson tell, and
Ml, tlien what are we ? ' Let him that
take heed lest he fall :' and tliat
I the appUcatktn he made of it.
*ir. Gen. Do you speak to all that Mr.
mD spoke in that discourse at that time
lUagtliese matters ?
Udmn. No, Sir, not all ; I cannot remem-
1 : Bat the substance of the distinct heads
1
^oux.
[194
how
RosewelL Tlien about the king's evil ;
did you apprehend it was meant f
Hudton. My lord, I do not believe he spoko
it with respect to that disease which we call
tlie king^s e\ il ; bocaiise he spoke^it with re^
femice to the disease that the king was
under.
Roseudl. Did you hear any thing about 20
guineas ?
Hudson. No, I did not hear a word of any
guineas that daj.
Sol. Gen. Did you hear him say any thing
about the people's flocking to the lung ?
Hudiun. ^fo indeed, Sir, not I.
Rosen efl. Pray, Rlr. Hudson, did I name
the word priests ?
Uudsoti. No, Sir, I did not hear yon name
priests, but ministers and prophets ; and what
a judgment it was to have the proj^hets taken
away.
Att. Gen. Pray recollccl yourself ; Is that
a phi-ase they use*, ministers and prophets ; or
do not they call themselves priests ?
Hudton. Miuistci*s and prophets, my lord,
aYo tlie usual words.
Ait . Gen. Priests is the word I am told they
have.
Roscrceil. Then, Sir, pray will you give an ac •
count how tiiat about the ranis-horns came in ?
Hudwn. That, my lord, was upon that text,
xi. Heb. 12
RosLu't f!. Do you rcmendier what time it
was ; forenoon or altcrnoon :'
Hudson. 1 do remember it was in your ser-
mon in the ailernoon. Tlie words arc these,
* Therefore sprang there even of one, and him
* as good as dead, so many as the stars in the
* sky in multitude, and as the sand by the sca-
* shore innumerable.' From wliencche raised
this note, or doctrine ; * Th:»t the groat God
* could by very small means bring great thinj^
* to pass.' And then he eamc to prove his
doctrine, by several instances. Says lie, \s hat
works diet God do by Moses's ro<l? And
by Gideon's broken pitchei-s routing a whole
army ? What great works has God done by
small means ? That by the stmnding of rams-
horns the walls of Jericho should fall down !
And what great wonders he wrought when
David slew the tremendous giant Goliali with
a stone out of a sling! And what great works
and wonders did the son of David, our I..ord
Jesus Christ do in opening the eyes of him
that was born bliutl, with a little clay and
spittle ? The application of that was, A little
grace
L. C. J. We do not desire to hear your ap-
plications.
Smith. My lord, if your lonlship please,
Mr. Hudson used to cxpouiul liiiiiself.
Hudson. My lord, 1 used to rcpcAt what I
writ in my own family, that is all.
L. C. J. Yes, no (Umhi ho is ;i most cwvU
Kilt expositor; th«Ti* nrc scvi-ral poplr tako
upon tliem to expound, ih:it vnu lu'ither rt'»d, nor
write, lint i»ray, lVi»Mi:l, ]•-•* nie ask you ot»o
qncstiun nion.'' W us. t tic captain, »t v^huiitf
U
195] STAT£ TRIALS, 36 Charles II. l684.— Tm/ of Themoi Rnemdh [196
bouse you were the 14lh of September, at
home or at sea?
Hudson. My brd, be was not at home, but
at sea ; and is still at sea.
L, C. J. Do yon remember that be prayed
forbim attbattimo?
Hudson. Yes, my loni, it was bis common
practice to jii-ay tor the i'amily wberever be
came.
L. C. J. And did be pray for bis son tbat
was sick ?
Hudson. I cannot tell wbctbcr be were sick,
or no, I do not renieinbortbat ; but be prayetl
for the fatbcr and all bis cbildreu, ibe wbole
family.
lioj. Pray did you bear any one wonl men-
tioned of the Uinus of England, or of bis pre-
sent majesty britonly in prayinpf fur liim, as J
bless God l dady ud, tbat God would gi\e
bim grace nod all good things berc, and iiis
glory bercatier ?
liudson. Not one word did I bear named of
the kings of Kngland ; nor of any kings, but
those mcntionetr in the Scriptures, tbat were
quoted, the kings of Israel, and the like.
Mas, Was there any word spoken abfint
po|icry being permitted to cumc in under their
mwcsV
Hudson . Not one word of tbat was spoken,
tbat 1 know of
1.. C. J. Did you bear the king of England
mentioned at all 'that day ?
Hudson. Yes, in bis prayer. It was bis
coii<itani coin-se to pray ibr the king.
/-. (\ J. Ay ; what did be pray for?
Hifdfion. He usi'd to express *bimself very
heartily in prayer, that God would enable bim
to rule and govern the people under bis charge,
and bless bim. And be used to say, God forbid
that he sbouhl sin against God in' ni'glecting to
prav for the king.
Jffos, It was SamuePs speech to Siuil. Pray,
Sir, did you bear that ?
L. C.'J. Nay, nay, ask bim what be did
bear you nray.
Jios. bid 1 pray about opening the eyof?--
L. C. /. But you must not open your wit-
nesses eyes : Do not lead bim.
Hudson. It was bis common practice to
{iray for the king, that God would preserve
lim from all his enemies.
L. C. J. And we say the same thing too.
Hudson. And that Uod would remove all
evil counsellors from him.
T.. C. J. Ay, no question.
Hudson. And cstjihlisb bis throne in rigbte-
ous-ness, and lengthen bis lite, and prosper his
reign ; and he uschI to pray as heartily and as
savbinly for the king as 1 ever heard any man
in my life.
Xl C. J. So there was praying in this hall, I
reniemJMT, for his late majesty ; for the doing
of bim justice : We all know wliat tbat meant,
and wliere it ended.
Ros. Mr. Crier, pray call Mr. George Hill.
fWbo came in.] Mr. Hall, were vou present
iiiiis i4ib day of Sflcptember at Rotherhitb ?
Hall. Ves, Sir, I was.
nos. When I expounded npoD the SOth of
Genesis?— Ha//. Yes, you did to. Sir.
lios. Pray will you lAfonii my Uwdi wh«l
you beard me say r
Hull. I will inform them to the best of mj
tnemoiy.
L. (;. J. What trade are you, friend?
Hull. I am a meal-man, my lord.
L. C. J. Well, what say you ?
Hall. The I4tb of Septcmberlast it WW m
lot to bear I^Ir. liosewcli expound the SOtt
chapter of Genesis ; as it was nis iisnal ooune
to expound a chapter.
lim. It was not of choice, but taken in
course. And pray what do you remember was
said by me atwut two wiekcil kings ?
Hall. Sir, I remember vou bitmght a scrip-
tun* cone<'niing Jebosliapdat joiniug with two ;
I first of all with wicked .\hab, and atierwanls
I with wicked Atiaziab bis son; and you TOored
! it out of 2 Chron. xviii. chap, and 19tn and
'iOtb verses.
lios. Do you remember there was any one
word spoken of the kuigs of England ?
Hall. There was not one worn of hia present
niajesty, nor his father, nor any of the kings of
Kri'glaiid ; but of the kings ot' Israel, Ahab and
bis s<iii.
lias. Well then, concerning Jeroboam, what
do yon reincm'ter of tbat?
Hall. As to Jeroboam — * You were ex*
pounding from the 7tb verse of the 20th chap-
ter of Genesis — And in the 0{K;ning of that
7tli verse among several texts of scriiAnrCp
Mt. Itoscivcll bad this Note,— Ilokl— nlaro-
boani —
L. C. J. Ay, about Jeroboam.
Hall. My memory fails me
L. C. J. Ay, so rperceive it doth wonder^
fully.
Hall. As to Jeroboam, be brought a text
from the 2d book of Kings, the IStb, and tba
former part of the chapter. There was a man
of God tbat came to Bethel, and prophesied
against Dan and Iletbel, and there were theta
wonls, tbat Jeroboam —
Ros. He bad bis band dried up—
L.C.J. What do you mean by that? If
your witness be out in bis story, must ' jo«
prompt bim ? Go on, friend.
Hall. He prophesied, tbat the bones of tba
priests should be laid upon the altar and bnmt»
as tve rea<l in that text of Scripture, 2 Kii^
13, and the beginning. And Jeroboam was
there, and put forth his hand — and bid some-
body take bold of him — Whereat the hand of
Jeroboam dried up.
Ros. If it please your lordsbipi I will call
another.
L. C. J. Ay, ay, you may set bim going, fov
he IS out.
*' *" This witness was wont to say, that i
person or persons pinched his legs as he waf
giving bis evidence, which oocaaioned theao frfr
quent breaks.'* Orig. Edit,
197] STATE TRIALS, 36 Charles IT. l6U.—far High TnasoH.
[19S
HM
fiiitfaer.
If it please yon, I can g;o a little
I have something to say. as to
L. C. /. You had best go out, and recollect
jounelf; you haveforgoc your cue iit [i;-c-
tent.
Rm> Mr. Crier, pray call Mr. James Atkin-
son. I^Vho came in. j
L CT. J. You, Mrs. 8mith, I will ask you, (I
wiH not ask him himsdf, because lie may ac-
CQse himself by it) Is this the miller, at whose
bottse oneof the meetings \Tas ?
SmkL No, my lord, the former witness Hud-
son is the mtUer where he preached .
L. C. J. Well, what do you ask this witness ?
Ro§, 3Ir. Atkinson, were you at uur nieetuig
the 14th of September last ?
Atkuuiuu Yes, I was there the 11th of Sep-
tember.
Rot, Were you there at the beginning ?
Aikkuon. I was there from the beginning
to the end.
JL C. /. Pray, what trade are you. Sir ?
Atkinaon^ My knd, 1 am a mathematical in-
stniment-mAker.
Roi, What chapter was 1 upon ?
AikiMMom. The SOth of Genesis in course,
and not out of choice. His usual custom was
lo expound a chapter before lie preached.
Am. Pray, what do you remember was said
by me of two wicked kings ?
" Atkimon, Of two wicl^ kings ! I remem-
ber that was upon the second verse ; how Abra-
ham said of Sarah his wife, * She is my sister :'
and upon that Mr. Rosewell had this note,
' That a efaOd of God may fall into the com-
^ miasioo of the same sin again and again, after
^ be had been reproved and smarted for it.'
And he qooCed several instances ; as that of Lot
committmg incest over and over again ; tliatof
Feter denying his lord three times ; that of
Sampson out of Judges taking two wives
uaoDg the Philistines, one after another : and
then Quoted tliat of Jehoshaphat joining with
tvo wick^ kinffs ; Ahab, in the Qd of Chron.
xriii. chap, anu afierwards, though reiiroved
bjr the prophet Jehu, he joined with Ahab'b
vidwd son Ahaziah.
B4fi Pray, what did yon hear of the king of
EjHdaod?
JUkinson, Not a woni, nnlcss it were in his
Mycr ; in which he always used to pray earn-
tM^ for the king.*
Bm. Wliat do you remember was spoken
iboot the king's evil ?
Alkinson, 7'here was an expression concern-
ing the evil, upfin the 7tli verse ; ' he isapro-
* |»l)et, and he shall pray for thee, and thou
* Shalt be healed.' And lie had this expression
er to this same effect, for 1 hope you cannot
expect 1 should speak every word exactly ; but
I shall endeavour to speak the sense, and the
truth, as near as I can, and nothing else. He
said, the prayers of God's prophets were very
prevalent for the hiding and helping others in
time of need. And he quoted severalinstauces^
as that out of the prophet Jeremy, xxvii. chap,
and li^Hh verse, to the best of luy remembrance.
And he also quoted that of the 1 Kings 13, con-
cerning Jeroboam. The Prophet came tn re-
prove him, and Jeroboam sfretclie<louthis hand
a^raiiist Inm, and it dried up ; and then he de-
sired of the prophet to pray for him ; whidihe
did, and his hand was healed.
L. C J. Look you, what you say may be
true, and so may what they sny too ; fur he
miglit say both.' \ou user! to say abundance
of g04Ml things, as well as some bad ones;
therefore I would ask him this question, whe-
ther lie heard any thing of the king's evil, or
that had any reference to the king of Eng-
land ?
Aihlnson. This is all that 1 heard that comes
to my memory concerning the king's evil :
*• That a godly man by his pnivcrs may help to
' ciu'e the king's evil, and thereby f the poorest
* Christian inavirratify the greatest king,' as
says our Knglish Annotator upon that 7th
verse ; but I never understuud hira to mean it
of the disease of the king's evil.
llos. Do you remember that I preached in
til is discourse about rams- hums, or broken
platters?
Atkinson. J did not hear of any stich thing
tliatof J upon all that chapter.
L. C. J. Hut 4lid you hear him speak of any
such thing at all that day ?
A t lunsoii . Y ex, i ny Ion I , I did .
L.C.J, Cuinc then, let us have it. \S\u\i
was it ?
Atl.insvH. His course was, after the exposi-
* See in this Collection the Arguments of
Mr. Erskine and other counsel upon thepro-
pQMd Eiamination of Daniel Stuart, when call-
ed for the third time in the Case of Hardy, a. n.
17M. See, too, the like examinations in lord
Kmell's Case, vol. 9. p. 596, in Mr. Hampden's
Cms, vol. 9, p. 107 1, of this Collection. See abio
the two first questions which Fitzharris put to
Smith, v^. 8, p. S50, all which, among others,
aie referred lo by Mr. Erskinc in his ui^ment
ia Hardy's Case as above.
tion, to preach a sermon.
Rt)s. Was it in the
furcnoen, or in the after-
noon ?
Atkinson. Tt was at>er the exposition ; he
nraycd, and then ceased fur a quarter of an
liour.
Rus. Was it distinct iu the afWnoon ?
Atkinson. It u as another di^^inoi discoarse
after the people had receive;l some refection iu
the af>ernoon ; I cannot toll exactly t!ie time.
Hut the discourse was preached from Hub. xi.
1'2. 1 suppose that i need not repeat the
wonls.
L. C. J. No, no, 1 care not for that.
Atkinson. Rut he thence raised this doc-
trine, * That the great God canetfeet gieatmat-
' ters hy very unliKely means ;' and he instanced
in several particulars to prove it. As the mira*
cles of Ciod wrought by Moses's rod -, and the
wallsof Jericho falling down at the soiuid of
rams- horns, in the Oth of Joshua ; aud then ht
Rot, Yes, I own it was lo ; Init not at the
other witnesses swear.
Atkinson. Truly, my lord, I woaM not tall
our tittle of a lie ; to the best of my remem-
branee •
Sol. (ien. Pray, Sir, let me ask you one
qiiestiuii : I sec you are very perled ia the
proofd of the serjiion ; did voii take notes that
day ? — AtkiriMtn. No, I did not, Sir*
}iol. Gen. Can you remember then any one
observation that he made u|ion any other verse,
d he nwke upon the
199] STATE TRIALS, 36 Charles II. 16*84.— Trtir/ ofTkman Itmrntt, [SOO
quoted that of Ciideon, a dreadful rout of a preat
army by a few earthen pots ami pitchers ; and
what a tremendous champion diet David smite
down with a slinc^ and a stone !
Rm. I have this one question more to ask
you ; did yon hear me s|icak any tfiini; of
standings m their principles ?
AlkiuHon. Not one word : ami I was there
all that live-lonr; day, from be^innin^ to end.
L, C. J. Then, Sir, I would ask yon a ques-
tion or two, if Mr. Uosewcll have done with
you ? — Ros. I have, my lonl.
L. C, J. Tniy, what mom were you in ?
Atkinson. I was in the same room that Mr.
Roscwcll was, he stood at the door.
Xn C J. "VVhaf, one pair of stairs ?
Atkinson. Yes.
£. C. J. is there not another room littwccn
the floor, or the ground room, and that you
were in?
Atkinson. Yes, Sir ; there is another little
room, a little lower than that.
L. C. J. Was there a bed in that room you
were in** — Atkinsim. Yes, Hir.
X. C. J. Did you sit upon the bed ?
Atkinson. I did sit upon the bed sometimes.
L. C. J. Had you a mourning cloak on that '
day ? — Atkinmhi. Yes, i iiad. I
L. C, J. Had you a mourning hatband ?
Atkinson. Yes, I had
JL C.J. Do you remember who sat by you ?
Atkinson. No, my lord, I do not know.
X. C. J. Do vou remember any iKMly gave
you your Ixjys shoes from uuder the bed ?
Atkinson. Yes, my lonl ; but 1 cannot tell
who.
L. C. J. ^\ ell then, I ask you, did you hear
any mention m:i(Ie thiit day aliont Dalilah and
i^amson ? -^Atkinson. Yes, my lord.
L. C. J. You did ?
Atkinson. Yes, my lonl, as an instance of a
good man's falling twice into the same sin.
L. C. J. Did you hear any mention made at
that time concerning any other matter that you
renu-mber .''
AtkinMn. My lonl, that i>f Samson and Da-
liiaii u as one of the instances that I repeated
iHjfore.
L. C. J. Mrs. Sniitli, was it the same day
that he spuke nbout canting ?
Smith. Yes. it was.
/*, C. J. Dtiyou remember, friend, any thing,
that W!is s|M»ken by him that day concerning
church -nuLsic ? '
Atkinson. No, my lord, not a word that day
that I know of.
L. C, J. Did }on hear any thing about cant*
Ingthat ilav 7— ^Atkinson. Sio,nota won).
L. C. J. )>i(l y)n lii'ar him talk any thing of
surplices or \*lii'le gowns .^
Atkinson. No, my lonl, not one woni all
that day; but that of* Samson and Dalilah, my
/.. C. J. \uu remember that ?
Atkinson. Yes, it was on«; instance of a good
man's committing the same crime once and
fltgain.
Pray what observation dkl
eighth verse ?
Atkinson. None at all.
Sol. Gen. What upon the 12th or 13th
verses.'*
Atkinson. I cannot tell ; I can apon tfae5di.
Ros. Will your lordship give me leave to ac-
quaint you with that.'
Atkinson. He only explained that which was
difficult ; but when it was a little historieal,
he on I3' read it. But what he observed upon
the second and the seventh verses, was the sob-
suncc of the whole exposition almost.
Att. Gen. Has noluidy read the notes of thai
sermon to you sinei^ ?
Atkinson. I endeavoured to recollect my-
self, after I heard Mr. Roseweli was aocnsed ;
and writ, what I could remember, down.
Att. Gen. But did any body read theur nolei
to you since .•*
Atkinson. No, indeed, there has nobody read
any notes to me.
Att. Gen. Upon your oath how came you
to remember the word Tremendous T
L. C. J. lie is not upon his oath, BIr. At-
torney.
Atkinson. Because when he made auch short
notes, I endeavoured to remember then; 1
thank God I have a pretty good memory.
Att. Gen. Ay, upon my word, a very strong
one.
Atkinson. He did use the word ' Tremend-
ous champion.'
Recorder. Had you and Mr. I^udsoa any
discoursf* about this matter since ?
Atkinson. Yes, Sir, we might talk what we
did remember to one another.
Sol. Gen. Did he write down the aennoa ?
Atkinson. Yes, 1 suppose he did ; but I did
not sit l>y him.
Hos. Mr. Crier, Pray call Mr. William Smitb
[Who came in.] Were you at thia meeting
the 14th of September last ?
Smith. Yes, I was, Sir.
Ros. Pray will you acquaint my lords, what
you heard me say there Y What chapter did I
exjMund ?
Smith. The 20th chapter of Genesis.
Rns. What do you remember of it ?
Smith. I remember the chapter coooenied
Abraham and Abimeleeh.
Ros. What did you hear of the people's
flocking to the king to cure the king's eril f
Smith. 1 heard no such word.
Ros. Or that his majesty could not cure the
king's evil ?
1 1 STATC TRIALS, S6 Cit ABLES II. l684.— /or Higk TnatM.
[SOS
Ko, Sir, liot a word of it.
Did Tou Ucar any tbb^ at all concera-
ik. Str. I'oii iriil liuote st^mclbbg out of
^•imolat :4^s evil.
Ao«* Uo ^ ; >vhut ttiat was?
Smith, I uaanul reineutber it Mty at length,
Ri I- i! you uodfrslaiiij it a<i mc^nt uf
Ihtki , vr of the evil of A hi lae lech
Smiths 1 did not understatid it of ttie diseaie
s^CAlied ; but of the evil nf Ahimelecb.
Jto$€4f)tiL What did \ou hetir coitcernitig
|mils aod prophets ?
^mitL You s«id it was the function of tbe
^ fiPuv lor ihe |)00|lk*,
II you remember was said
OC two \\\'
Sm ii«i n»;ike menlioiiof two wicked
lan^« '\ Aha/.»»fi ; tJiat Jehoshanhat
'h them one after atiather,
reatiy thiti|^of tbe kingn$
•f Ellfiatid, or ui uiy Hovertigu f
SbdiA, N*>, lint at alt, Sir.
X- L\ X Did you hear anything concerning
Jerobuun ?
Smm, Y«>thtifJ^ *"-i^ ^tretchcKl forth
|hs liaml* and hi% hiria i ; and tin* ]iro-
fl»t pnyed for him, ..i.-. ...- .-.iad was restored,
L- C J, Did you htar any lliiugin the ex-
^tallififi ^ifltn^lrn i»Itrhi'i'&, I meaii in the forc>
OMv 1 iiunk nut*
L. i I .( juu hear of tbeiD ; and
mhmf
SmitL To tlie beat of my remembrance* it
^tm» m tJte allemoon ; That God could tlo
gfWil oMUcfs by smalt means ; and sou quoted
jmtll i4ifti||^. I did not stand weft, so tliat 1
'1 imtbetf all the f>articulars.
X* C» X But whtit did you liear ?
lUteweiL Pray did you hear any wortl ot
ortir ' * f'Hr principles, or of overcoming,
that I '/i. iNo, I did not.
Jii " If seeuiA ) oti did not stand
ia*L ir.
liiL ' 1 ler, pmy call Mr. William
&t(«». [ W hich ho did, but lie did not appear 3
Crier Hi? is not here, Sir.
Km^&ttL Pmy, 8ir, csiil Mr. Cieorvre Hales
AcB. [Wb'> came in.] Were you this I4th
liy ' ' kT at ihia meeting. Sir ?
li I was, 8ir.
hoica^l. Ucre yon there from the begin-
»!» tbe end?^>ftf/ef, Yes, 1 w»^, 8ir.
nfmewtU, Pray llieu will you tell my lord
ute you heard me say, with refereuce to flock-
ifigtDtlie ^'' '/ >- 'T'"v- »«. kiugf'j* evit
Buiei. I you sliould say
«f {i#op)e'>. ;i- „ ,, :. :....- ; but you were
iMkiaiC of tbe king's i*vd, and that was thus :
Jly lonl, it was fr<no tbe 7lb verse of tbe 20tb
CUJMtr of Geiiestis, He ik a ]»ropbet, and
•Inil prmy for thee, and thou shalt be healeiL
God ia speaking to Abimelech in a dresiui j
ud iiWr a httle uaraphra^ upon the words,
He* RowvrtU aid. That a godly man's prayer
waa a sovereign cure for tha king's ovil ; and
quoted somescripture instances, an in 1 Kingly
where God having sent a insui of God to re-
prove Jeroboam for hi« idolatry, he atn-tcbed
out his hand, and bis band withered ; and he
desired tbe prophet to pray to the L<ird bis God,
that his hand inigbt be restored ; and accord >
ingly it was accomplished.
HQUiiidI* Did you hear any thing of the
kings of England?
Hiilu, No, not one word all that day ; only
you prayed for his majesty, as you used to do.
lunevfeli. What do you remember was said
about rams- horns >
Hale$. I remember you were preaching out
of tbe xi. Heb. 12, and thewot^a wereUiese,
* Therefore sprang; there of one, and bitn aa
*■ p^ood a^ dead, as many as the stai-s in the sky
* Tor multitude, and as tbe sand upon the sea
* shore innumerable/ From whence be had
this observation, That God is able lo bring
great matters to past by small means. And
so accordingly Mr. flosevicll instanced how
the walls of Jericho were shoi^tk down by tlie
sounding of rams- horns ; or somotlung to that
puroosc.
Kit^eircU, What do you remember of broken
platters ?
Hates, I remember you brought In an in-
stance concerning Gideon, and I tbink it wi
thus, that by breaking a few earthen pitch€
he rouletl a great army.
lioxcwtiL And so 'of a stone and a sling*
But was there any thing of standing to prin»
ciples ? — Haitt, Sot a word*
L, C* S, As yon heard ?
Hules. That't heard.
L, C. J. Or that you remember ? ^
Ua!c$, Yes, my lord. But you said, What
a tremendous champion did Darid slay with a
sling and a stone*
/>» C. /. Did you lake note* f
Hates. No^ my fowf.
L. C. J, Then pray bow came you to i
member that word trenicfidons ?
Hahi, I do remember he did use that word.
L. C. J. Have ymi hud any discourse about
this matter since ? — Hales. \^e8, 1 have,
L, C. J. With whom ?
Hales, With several fnends.
X. C. J. Did v«u discourse with Atkitiaofi
about h?— Hales. Yes, I did.
X. C X Did you with William Smith P
Hates, No, I do not remember I did.
L, C. J, Did you discourse with Hudson ?^
Hales^ I canuot say 1 <lid.
Att. Gfn. Nor you cannot say you did not;!
X. C. X Did voii hear any notes read ?
Hales. I thlnt 1 did.
X. C X W^hose notes were they you beard f
Hales. Thomas Huditou^s notes, I think;
I am not sure of it.
X. C, J, It is so hard and didicuU to giet
out the truth from tliis sort of people ; they do
60 turn and wind. How lung aftrr the sermon
was preached was it that you heard the nofea
read ?
I
905] STATE TRIALS. 3ti Charles II. l6S4.^Trial ofThmoi Rotmeli, [9M
Ilahn, I wu in the connlrv when Mr. Rose-
wcil was taken ; and when 1 came home again,
I heard of it.
JL. C. J. Hut you did not remember it till
after he was takkn ?
Htih&, No, my lord ; and I read the chapter
mysclt*, nnd rcmfmhcred these things.
^v»/. Gen. Pray is the word tremendous in
Hudson *s iiotvR, or no ?
i/a/(..<i. I caiuiut tt'Il whether it he, or no.
Att, Gen. Pray, when was the next daj
after this ?
HuUs. I cannot tcil. I was in the country.
L. C. J. Did he take notes in long hand, or
short?
A Stranger that stood by. In characters,
my loixl.
Att. Gen. TI:;ve you not heard Iiiiu preach
since that time :'
Hales, Sir, I went into the country soon
after.
Att. Ctn. \V here was his test at auy other
time, can you tell ;' — Hales. No, I caunuf readily.
Alt. Gen. Nor what he diacoui-sed upou.^*
Hales. Asm any particular time I caiuiut.
Att. Gen. Do not you remember his text at
any other time?
L. C. J. "When was the time before this 14th
of JSeptember, that you did hear him pi'each ?
You have heard him before ?
Hales, Ye», my lord, I have.
• X. C. J. Was that upon a Sunday ?
Hales. Yes, it was.
L. C J. Did you hear him the Sunday be-
fore ?— //.//*'*. Yes, 1 dill.
L.C.J. Well, what did he preach upon
then?
Hairs. This I know, that in his course of
reading and exposition, he was upon the 19th !
of Genesis. I
/.. C. J. What was his discourse upon that
rhaptiT ;'—//«/«. That I cannot lell. j
/-. C. J. Nor the day afterward ?
Hairs. No, my lord.
L. C. J. Upon my w ord, you have a lucky
memory for this piir^jose ; to serve a turn, it
4-an just hit to this very day. You arc very
puiu'tuully instructed.
Soi. Gni. Do you remember any other part of
the sermon of il'iig day than what you have re-
lated .^— //«/«. Yes.
L. C. J. Ay; tell us what you remember be-
sides.
Hales. I must coiisidcr a little ; I am not so
i-eady at it.
L'C» J. Ay, come let us hear it.
Ros. These things he might have more oo*
'asioii to recollect by reason ofmyjcharge.
L. C. J. You say right, jnsl occasion for
tl>is purpose. But 1 thought these men that
have such stupendous memories as to (ell you
th«y remember the chapter and the \erse, and
particular words, when it serves a turn, might
remember something before or alter, at least
in the same sermon. Why do you think they
were enUffhtened to understand and r<'nu mber
that one day more than any other ? Tlicv can
8
remember particularly as to sochthingK, and
can clan it together to answer such particular
questions ; but as to any tiling before oj: after,
they are not prepared.
Just, lilthins. Have you any more wit-
nesses, Mr. Rosewell ?
Ros. Mr. Crier, pray call Mr. John Warkw.
[Who came in.]
J ust . Holloway, Where do yon dwell, W bar-
. ton?— ir/iar/oii. At Rotherhitli.
Just. Hnllou-ay, What calling are you of?
W/utrti/H. A gardener.
Riis. Wei-e you at the meeting the 14tb of
> SeptcnilxT. — Wlutrton, Yes, I was, Sir.
j Hoi. What do yon remember, pray, of the
! ex|K>aiuon then concerning tlucking of the
! people to the king to he cured of the king's
: evil ?
I Wharton. Sir, I do remember upon your
, exposition of the 20th of CSencsis, yqu were
j s|ieakiug concerning Ahimelech king of Gerar ;
and you took 3'our exposition thus, that
Ahimelech had taken away the wife of
I faithful Abraliara, that 1 do remember jery
well ; and that you did say in your expositioii,
that the prayers of tiie prophet were preralent
for the curing of the king's e\i\. And then
you brought your proof, to the best of my re-
membrance, concerning king Jeroboam : that
JerolKMim stretched out his hand againsl the
Erophet of the Lord , and that the king cried, lay
old of him, when he came to cry against the
ahar at Bethel, and his hand dried up ; where-
upon the king desired the prophet to prsj to
the Lord that his hand might be restored ; and
he did so. This was the exposition that you
I madcu]Mm that verse in part.
Roit. Do you remember any thing of com-
paring the king of England to Jeroboam ?
W /tartan. 1 do not remember any anch
passage.
Mas. Do you remember anything about two
wicked kings?
Whartvn. I do remendter this passage, cod«
cerning Jehoshajdiat, that he had fallen twice
into the simie sin, by taking part, first, with
wicke<l Aliab, and tfien witli his wicked sod
Aha/jah.
Rus. Was there any thing of the kings of
England mentioned in this discourse ?
Warton. No, nothing. Sir. It was but an ac-
cidental thing that 1 h»;ard you then. I heard
nothing of thi; king of England in your ex-
position or .<iermou, but only in your praycra ;
when you prayctl for his long Lfe and happj
reign.*
X. C. J. Did yoti ever hear him before that
time? — W/uirtun. Yes, my lord.
L. C. J Di<l you ever hear him since ?
Wharton. Yes, once since.
L. C. J. Now let us know his text, and the
sulyect matter he was upon since.
Wharton Truly, as to the time since I dkl
not take much account ; for I did not write.
L. C. J. Canst thou tell us of what past at
any time before ?
'Wharton. Once before I heard him u|K>n the
«5j STATE TRIALS, 36 Chables II. l684.— /or High Treaam. j 20(i
or. of Genesis, where he made his exposition
—Truly, I have not any notes
I.C. J. Then hark you, friend, baie you
spoken mth any body since that 14th of Sep-
tember that did take notes ?
Wharlon. 1 am not acquainted much with
them that were his constant hearers, that did
t^e notes.
X. C. J. But answer my question that I ask
yoa ; did you erer discourse at all about this
matter, and with whom ?
Wharton. I came thither by myself, 1 say ;
I had not much acqaintance with them.
JL C. J. Nay, do not pre?aricate, friend,
with tiie court, but speak the truth out plainly.
I ask you in the presence of Almighty God,
did you ever speak with any body since tlie
14th of September about this business ?
Wkartm. Mr. Ilndson did speak with me
about it.
L, C. J. Did he read his notes to you ?
Wharton. Yes, he did.
L.C.J. It is a Strang thmg*, truth will not
come unt without this wu%-drawing. You can-
not help this canting for your life ; this is cant-
ing, if ymi would know what csntinff is. Did
ym erer speak with Hales, or Atkinson, or
tr Smith about it.
Wharton. 1 do not know Atkinson or Hales,
1 know Mr. Smith, but I nerer spoke with liim
about it ; nor he with me.
JL C. /. >Vhen was it that Hudson and you
spokelngetber of this thing ?
Wharton. It vras last Thursday.
£. C. J. Did he come to you, or you to
him? — Whmrton, I met him.
L. C. J. Where did you meet hiro ?
Wharion. At Hotherhith.
L. C. J. Did he speak to you of it first, or
you to him ? — Wharton. He spoke to me.
JL C. J. Then I ask you (and remember,
though yon are not upon your oath, yet you
veto testify the truth, as if you were upon
voaroath) did he mention any thing of Jero-
vma?^Wharton. Yes, he did.
L C. J. Of Jehoshapliat? anti of Abime-
lech?
Wharton. Yes, he did.
L C. J. Did you mention any of these things
10 him?
Wharton* Yes, Sir, I repeated nnore then
(Un I ha>e done now.
Att. Gen. Was your meeting accidental or
Wharton. It was accidental in the street ; I
^well below him a great deal.
Att. Gen. And where was it?
Wharton. We were talking in the street.
Just. Withins. Did not you go into some
hoasr?
Sd. Gen. Had you any discourse at that
^ of being present at the trial of Mr. Rose-
" €h r
Wharton, Mo, I did not know any thing of
ittiU I nw the Subpoena.
W. Gen. Before vou discoursed with l/uu
^^ you remember all these things ?
Wharton. Yes, I could remember them aa
well as he ; and a great deal more then.
Alt. Gen. Then cannot you remember wliat
was done the next day ?
Wharton. No, I cannot.
Att, ixcn. How came you then to remember
so well what was said that day ?
Wharton. Bccaus^c there was a reukUikabU
passage, that 1 had never heard before ex*
pounded. I had not staid at tliat time, but
that he was expounding of a very remai'kable
thing, which 1 had never heard expounded be*
fore.
L. C. J. Have you any more witnesses, Mr.
Rosewell.
Res. I have some witnesses to call more, if
your lordship pleases, to testify concerning my
life; and that J always prayed for the king,
that God would crown him" with grace here,
and glory hereafter ; and that he would re*
move all his enemies from him.
L.C. J. Ay, Mr. Rosewell, first remove all
his friends from him ; and then remove his evil
counsellors.
Hot. Pray, Crier, call Mr. Charles Arthur.
[But he did not appear.]
Just. Withins. Come, it seems, be is not
here, call another.
Ros. Call Mr. Tliomas Jolliff. [Whoap.
pcared.]
L. C. J. What ilo you call this man to?
Has. My lord, this person I call to testify
with iv?spect to my conversation and carriage
towanls his majesty and the government. *
L. C. J. What is yoiir name, Sir ?
Jolliff. Thomas JolKft'.
Just. Hoi. Where do you live. Sir ?
JollifT. In Mary 3Iagdalen's parish.
i. C. J. Why not St. Mary Magdalen's ?
llns. He is my neighbour, my lord.
L.C. J. But, I suppose, he thinks tliat
would have made the name so much the longer ;
or else, he thinks that there is popery in calling
it 80.
Jolliff. No, my lord, 1 have called it a hnn-
dred times, and a hundred times, St. Mary
Magdalen.
L. C. J. Prithee then do it again, it will
never be the worse for thee, I dare say. Well,
Mr. Rosewell, what do you ask him ?
lios. Pray, Sir, will you testify what
you know of my conversation towards the go-
vernment, and particulariy towards his majesty ?
Jolliff. My lord, in the time of indulgence 1
have heard Mr. Rosewell once, or twice, or
niore ; and I heard liim pray for the king, and
the peace and welfare of the nation, as heartily
as ever 1 heard aiiv minister in England in my
life. /
Ros. Pray, Sir, for my conversation; Did
you ever heiir any thing of my disloyaJty or
disaffection to his majesty, or the government ?
Jolliff'. No, Sir, 1 never heard any thioff of
any disloyalty, or any sucii thing in my Hie ;
* See Hnrdv'v case as referred to in the note
to p. 197.
QUI If
m
mail
I
I
but ftll the parUh will g-ive you an ac€ount^
that you have bt^haved joursetf* as an lionesl
lUAn ; aurvil I [lever knew (lmt« ettlier iu i^tiril
or deed, you were necuaeil of iitiy di^layaltj,
Aod, njy lord, it' you |>le.i^ Ui j^ve me my
oath, 1 ivill swear it ; tor it is tlie same thing
to me to te.stify liere iti such a court under ao
Oiit1f« or without it; fw I ought, I know^ to
^ Itify the truth.
Hos. My loril, I am oonfident lliut what he
B he would swear : and he is a very hoticst
L, C. / Well, Mr. RoHe^vell. if you have
anymore witiiesfteK, call them ; aod make what
mnarks upon the evideijee you pleoiic afler*
ward»» tor this is Dot llie time tor umkio^ re-
marks.
Rot. 1 humbly thaukyour lordship for your
gr^tt favour.
L, C. J. I do not speak it to cramp you
Id your time ; but call your witnesses, and then
make whnt ren^arks you will : For God forbid
we should hinder you from taking your full
time ; toi' you stand here for your Ufe.
Rat. U Mr, Winaacot here ? [He did not
»ppear.1 Then pray call captain Hichard
Cottoo, [But he didnot apjicar.] Cult Mr,
Thomas Fipps. [Then capt. Cotton appearwl.]
Rot. Thus prentleman, my lord, hath known
me for severaTy ears. Captain Cotton, 1 pray
Sifi will you sneak what you know ot my coU'
versalion and life, and loyalty, i»1th respect to
the king and g-overnment ?
Cotton. My lord and gentlemen of the jury,
of late I have not fre<[uented I^fr. iio«eweirs
company, or his cotip^egation ; but when the
door stood oiiea> without opposii lion, I have been
tliere ; and have heard him pray for the kin^
and government several times ; and bless God»
that we live«l underso peaceable a prince, when
all our neighbours were in blood and war.
Roi. Pray, Sir^ have you ever heard, that
aither in word, or deed, I should ever declare
tglklit his majesty or the government f
Cotton. No, I never heard any siucU thing
in my lilc ; but what I heard now upon this
trial up and do^ n the hall, as I was walking
below ,
Just. IViihim. flow long ago is it, that you
speak of. Mr. Cotttm/
iJot!itn^ I was abroad most of thptirae at sea ;
but this was three, or lour^ or live years ago.
Just, Wifhm. iVbai lime was that 1-'
Ct/tt&n. It was in thetiAie ol'thc indulgence.
Just, Withins. Ay, then, it may be, be could
speak kindly enough of the government.
Ros. He has knowa me thessaten years.
Have you not, Sir?
Cotton. Y'esj I believe 1 have* ever since you
came thither. [Then Mr. Fiupeieame in,]
Ros. This gentleman has known me sere-
J*! years, have you not, Sir f
tippt. Ye», Sir,
Rat. Pray, Sir, will you give my lord and
the court an account what you know of roy
life and conversatiou, and of my loyalty or dia-
tnjf«!t V tJi th^ IriiMT Ijy tfOHOfiillftilflt f
F'tppi, My lord, I have known tbia
man divers years. He lived in Wtllabirci, _ „
there he ha J tlie reputatKin of a rery Itooest
man, af^ood )»cholar, and a \m\\iK man. I nearer
heard him preach in my liti T •
go to conventicles; butt ht^
where I have heard hiui priv ;
and there be pr\i yed very earno- *
and governiuent, fort! ' • "
I came to London h»
hds been herein Lou^
has bpcn often in m >
tbf late tmjcs, the Btt I
bo<ly did take liberty to say what li"
of the king and goveiTiment ; 1 !• i
often in his company, and heard hiLii &pt.ik
with a great deal of respect of tlie king, ami
of the govenim«uit, and ihauk God for the h^
berty he did cujoy, and the protection ho bad
from the govi^rnment \ but I never li ' ' n
speak an dl word of the governor ^
life ; and I have known him as much <^A «AiM.ir)
as any other man that was not his bearer ; he
was always reputed a very ingenioua man,
and that is all I can say* 1 never heard or
knew any thing of ill ot him inmv lile.
jRflf. Pray call »lr, Caleb Veenng. [Wlio
came in.l Sir, you have known me aerenl
yt^rs. Pray be pleased to te^iiiy to mj lonl«
and the court, what you have known of my
conversation ivith respect to his maje^y aiid
the government.
Vccting. My lord, I hare known Mr. fiooo-
well these several years ; and I hare bec» in
company with him upon the oci t ■ rrccir*
ing money on account of rem id of
mine ; and likewise have bearil M^.i ^^'iHtetiy,
when he preached publicly ; and never tievd
any thing from him that reflected u(>on the |r^>
vemment, or shewed any disrespt'H to tlie king.
I hare beard him pray often very hcariily for
the king, and he never mctldltfd with any pub-
lic busintss, nor spoke of any news wluk 1 wia
eonceroed with him,
Ros* l^y, Sir, did you ever hear of any ill
I should speak of my sovereign ?
Veering. I have ficanJ him often pray for
the king and government \ and I nevar hemrd
any man say that he did otherwise, or that ever
he ftpoke an ill word conceroin*.*- any of thofti*
Rm. Call Mr, John lJiiLh<.<ock. (Who aum
in.] — Sir, you area gentleman that hti*^*' t^t.^wT*
me lor several vearsi \ pray, will ^
what you have known concerning niL
you have heard or known any ill of my con-
versation towards the king, pray speak it out«
and let me be shamed before God^ and lliii
gpreat assembly.
Hitchcock, I have known him, my
several yeai's, and have heard him formerlj
though not of late ; and when I heard Vn^
he used constantly to pray for the Ling ai
govenimenl ; I never knew him to s{h i«k ai
thing against the king and gov t)rnmctu in
life, but always sp4>ke very w orthily of tliei
Kof, Have you heard me oftou pray for tli«
king? ^—
i
9D9j ' STATE TRIALS, 36 Charles II. l684.-/or Nigh Treaton.
HHcA€Ock, I have lo, Sir, a great many
[210
Ros. How long' is that ago ?
Hitchcock. Alwut two or three years aj^,
nv h>n] : and I never knew him to be but a
fWT worthy gunth*man.
Rm. Vnkf call Mr. Michael Ilinmati.
C^bo caroc in.] Mv lord, here is another
HEDtSetnan that hath known me several years,
my, Sir, will you speak what you know of
■y cooTersatiun, with respect to his majesty
aid Ibe gvi\iTument ?
Himmun. My lorJ, I have known him many
jwi, and been in hjs company sr-vnal times,
Mincrer ficanl him speak any'thin*^ of ill rc-
IHb^ to tlic king or government.
Jm. Pray, 8ir, have you not liecn (upon
use occasions) present where I \m\v prayed ?
Uiftman. Yes, Sir, 1 have hcanl yon pray ;
■i I have heard you pray for the king very
bnitfly.
Bm' Have vou heard of any evil I should
otfKr say or do ? Or any thin^ by word or
ini against tlic king or government ?
HinmaH. No, never in all my life, one way
Mm. Phiy call Mr. Nicholas Wanlcy. [Who
CHKiD.] Sir, you bate known me lor these
Wtn years ; pray will you be pleased to
ifaBtiie triitli of what you know of my con-
hbmmb, with resfiect to the king and govern*
lUty. My lord, I have known the pri-
Mffttthe bar sc^veral years ; I have been
ipfHMli IB Ills coin p my ; and never heard
titt^oltB in word ;i^»mst tlie khig or go-
VBOBril it my lile ; but have ot)en heard
!■«■& dial the kiu£r niigbt live, and have a
l^faidiiro»pen>iis m^n : I never heanl him
■f aedi worci ot the governnunt in my life ;
k<«hny% when he sftokc of it, it was with
difherrspeirt that anv person cnuld do.
Mm. bid y ou e\er fiear from anv utlicr per-
Mii dinMTtly or inilirectly, that I [iu\e spoken
Rieetively upon his mnje^ty ?
WnUgy. Never in my lite, my lord.
Mm. One w ay or cither ?
Vfl«/f». \o, not any way at all.
Mm. rny, call ^Ir." John Stnuiff. [Who
jffttrcd.l * Sir, you arc a geiuleman that
IlKknowu mt.' iiianv ^oarstiMi, w <>r IJ ycai«,
tWiievc. — 6'-'r»'/f.e. \es. Sir. \
. Mm. Praj, wiii \< 111 tell my loni, and the i
}qr, w bat you know of nu> with respect to i
I^Mia^iuur in word or deed, in rtltriiicc to I
JK Majesty, nr t hi' government f j
Aroa^.'Sir, I hate heard you teach several
iKsfonnc-ri^ ; I wris not at this time indeed
jh wbirh yoti rkow staml accuseti) at tlipt
jMk : But* I never heard you sjwal: u wdrd
■B'iM' hia mujcoty, or the government ; liiu
always prayed very earnest! v for his ma-
r. * '
L Did you ever hear tlu«t I sltfuild iiay
fcin^ iU'of the king or (>'o\L'rnuitMit ''
rmig. No, never.
Mm. CaBMr. Joho Cutloe. [Who appear-
TOuac
ed.] Sir, you have known me too very many
years: What do \ou know, pray, concerning
ray behaviour towards his majesty and the go-
vernment?
CutfiK', My lord, I never knew him sjKMik
one word disrespectfully of the government,
or the king, in my life ; though I have known
him some years.
Rot. Did you ever he-ar from any Ijod}*^ else,
that I did speak ill of the king or government
directly f»r indirectly i*
Cutloe, Mi», never a wonl, I assure 3'ou, Sir.
lio'i. Have you been where you have heard
me iiray tijr his mnjesly ?
Cut he. Yes, Sir ; I rememlier at Bristol
once occasionally 1 heard you in the time of li-
berty : otlii-rwi-ie I canitot suy I have heard
you. But 1 never hc«Fil any thing against the
government *, but you always behaved yourself
loyally and |>eaceaLly tint 1 know of.
lios. Call Mr. Charles Melsum. [Who ap-
peared. J My lord, 1 call this gentleman, who
will accpiaint you that he lived with me many
{rears in an honourable lamily, a pei-son of qua-
ity of this nation, one of the JIuu^erfbrdB^
where, my loni, I was tutor to sir Ldward^s
son for near seven years ; a gentleman well
known for his great loyalty to the king and go-
vernment : So that if I had been such an
enemy to the kini^, or so di8affecte<l as these
people would make me to be, sure he would
never have entertained me. Pray, Mr. Melsum»
will you phrase to acquaint my lord, and the
jury, how many years 1 was in thatikniily p
MtfiunL Seven years ; and I was above 14
myself.
Ras. Pray, what do you know of my car-
ria^ in that honourable family, with respect
to tlie king and government ?
Melsum. As far as 1 know, for my Hie, I
will declare. I do not remember he did trouble
himself, or meddle or make with any man's bu-
siness but his own. He was a man that kept
iiiurh to his study : And when he came* up to
prayer, heprajied licartiiyibr the king; and had
tiie rfO(Ml wonrorall his neighbours tlicreabout.
l\in. Have you ollen heard me pray for the
kinir .'
J/' <•'/.'. 1 liive heard him a hundred times
pray \<,\' l!ie kir^:^: I never missed pniyei'S when
I J wu <i at huiuf; and it was his constant practice.
i L. C. .'. Dill Ik ]>niy in the lauiily then ?
MiffUitt. \ Cs", h.rdid.
L. i\ J. i)i«l he I'M- iti go to church ?
.'/i />■.•'••. N »*s, hi* wont t" clniirh, to the be-
^iiir-iiiitr ollh'^ prayMs ; he did Irequi'ntly at-
t**ud d'vini"*«*T'. !v«f.
L. ( . J. I»id In n.cei'.ctlic sacrament in all
ll>:»t tJ|»ii.' .'
Mil.M't;. Vrsj I hilio*.- ].u diti ; I cannot
savit dip ciy.
.h'fi.. 1 \* ;fs u vniv \:\i\i uttriidi r upon the pub-
lic iiiinistr\ . Itisnc)\v Jmw iid<»z«'ii \ cars ago;
it w;i«j ill tin- yr:if 1» t^. my Pud, and so doMii-
wavd. Sir, yrMi k:io\v i u:u; a coustr.lit at' "i
duntnpim thV ini.iiM y ot the church, and iii<^
worship of Cod lli'.rv.
P
ill] STATE TIUALS, 36 Cu arlrj 11. l684 Trial vj T^ma RdiiweU, [8M
I
I
I
L
Z. C* J, Did you ever hesir him umke tuie
o/lburoinmon-prH^er liimseU'in the tiiuiily ?
McUuhk I caiiuot hay he did.
^X. C\ J* Well ; bare )ou any more wit*
I«R, Kir ?
!<;^. Ve5, my lor*U Pray c«U Mr. Hubert
Medham. [>V ho an|«etiTd.] Hej c is another
e:«titleifiap, M>y lord, tlittt Uvecl id iliat i'auiily.
Vrsky^ Mr. M^dham, ho^v lusg did yottlWeui
that hoDourahle rainily ?
Mtdhum. Abont folii' ye&rg.
J^fJit, Was thut iu the liiue thai I wm lb«re ?
Mtuihnm. Yes, it ^vns*
Jl^. Pray then, Sir, will you declare what
ycm kuoivufmy conversatiun in that fiinilly
with ri'iJpcet to the jiubhc ?
Ahitff • ^'' ' "' '♦ - ! jrrcal while ago ;
but lit i«: ldjdaKv»>8 keep.
tn thi '^j^ ..... . r uH chaplain to my
kdy Jlung^tTtord ; and always prayed for the
king at lMiI^ tituc of prayer,
Y Ji*'*. Did you e\er hear that I should speak
Of declare any thing i&guinst the kfng' or go-
▼emiTiont, in all my lite, all my liaie, oryuur
lijlie that I was there ?
Mai ham, 1 must needs say, I tie^er did hear
auv »«iich thing In my lifu»
Jitsl. Ihd, But ilVas not the pray era of the
church tlipt be used ?
Mcdhtnn. J cannot say that.
L, C. X Did \ oil ever hear him use tlie
paversof ihr"'-..- t. •
Mcdhum. I r thai I heard ^ was lliot
f?hichna« um: . , lein the femily*
L. C. J. Btit pmy apeak plain ; cFid he use
the c^mvoioii-piiiyer f
Alcdham, 5? o, my lord ; I eaanot say he used
tht cormnon jn-aycr.
X. C J. 1 tell you what I mean ; Did he
out of the book of the Conuium^prayer?
^edhmn. >io» my lord, J • ' that.
C,J, D*ist t Iron take ht' prayer
'' ', ers urthe churcn
i/i*. My loifljj he does not know
,f believe j 1 liehtMc be does not
Yes, 1 nscd 1o attend upon the
soiiid iVIi% r{03*ijw«ll.
' '!i«i. ^Vdl,8ir, have you any more
witnesses f
Roi. Yes, my lord ; pra)^ call Mr«» Atme
Broadhurst. ['fhen Mr. Wiunacott appeared
and rtffered hmiteJf*]
WinnacoU. >ly lohl, I heurd I ^va^ ealkd j
• ttd am come as soon as I coubl g'et iu.
Hoi. Ay, Mr Winnacott, you have known
me many years ; I desire you woid<l testify
what you know concei'uiag'my conversatioii
fttid behat'iotir.
WtnmicolL Formerly, when 1 heard him
I tir-ver heaitl him apeak a wonl a^ainiit the
kins.'- *>r •rrit*>rnment; uid it %^ some three years
a^ earj him.
' • you heard of any tvll that I hiive
i4iit or done agfiiiiAt the kin^^ of the gavemmecitf
Wtrmacott, No j but I hafclt«U^ IlitfldWti
pray for hia majesty.
4
JuHt. Wukmt. Well, there la your Other vrit
ness Anne Broadhurt<t ; what aik you her ?
fifli. 2*Iy lord, this was a servant that lif e<
several yejin# in my fanulv* Pray, Nan»
many years did you hve tCere ?
Broadhunt. Four years, my lord.
Kof. Pray declare what you know of mctoi
my family, lUth respect to the king aitd go-
vern menu
Broadhurst. 1 hare generally heard you twioi
a- day pray in yoor family ; and I nerer heard
you pray in my life, but 1 beard you pF*y it
eamaidy for the king as you did lor your own
souL This I can declare during the' time that
1 lived there.
Roi. Did jou erer hear me speak evil oftlie
kiogf in my family ; or reflectively an the go-
vernment f
Brmdhttr$i. No : you always prayed for
the kini^ ^as I say) as earnestly as mr yoursdf
or yf^ur family,
Rus. If you know any ill carriage in won!
deed towards my sovereign, 1 desire you
speak it out, without favour or afiectioDj or aoj
respect to me in the world,
Broadhurit. No, I never did ; but hM%
often heartl you heartily pray for him*
Jufkt. Wit him. Pray, how lang ago is ibli
Brmdhuvit. Two years ago I lived wil
him.
Roi. Pr4*Vi tell my lord again, how bog
waii, and when that you lived thei'e.
Broad hur%t. I lived there four years ; and
is two years ago since*
Just', Wit hint. Pray, how often were you
church in that time?
Broadtiurst, When 1 had occasion to go,
did go ; but 1 did usually hear my masti
when 1 dwelt with htm.
JuiSi. IFithint, Well, who is your nevt wit
II ess ?
H OS. Cal I An ne Mati ni ng . [Who c&me ti
Vou lived with me in my faauly i»evertt1 yeari
Mnnnitig. Three years, ?Sif,
Ron. Pray^ will \^\i dt^clare what ytni k^,.
of m y cji r riage and beh a v io ur t o v> a rf U ih e ki\
andgofciuuieat, iamy faniily, whileyoutf
thei e f
Maffhi/i^^. My lord, he prayed for the kill]
for his looj; liftj, in his family duties, monif
atide\ Oiling ; and iu [uifate, when nc'
lieard hiia but my^lf.
L. C, J. \\\m% I you and he were at c»
i(»y:elher ?
Ahtnnif^g. My lord, I have gone by
stud V -dnnr, iuid iittve heard him pray for
kiiij^\ lonu*" lifi% when he knew not thai
body heaifi luui,
Roi, This, my lord, is more than 1 esrncctedi
ibr I litllelhoiiL'^ * *1 * uiy body could give
a testimony ol - devotion; ilmugti I
never then on a,.. , ..ly for the kiug, and
never shall as long as 1 live.
Alonning* My lord, he prayed as
for the kind's life as for bis own soul ; and
have heard him ofUn prayittgi *md d<
Cod to preserre him in his kiogdomi Itttd gi^
STATE TfUAIil, 36Charlbs1I. l6u.—/or High IntMA.
tve buutl bun iosisl ii(K>n
k not eiil of the kiosfi "Oi
tin ir; for tli« birds of the
Roi, Pray spuak the trntli. Dirt you ever
he«r me utter an ill word or reflection upon^iis
msuesty or ibe ^t>Teriiineut ?
i^rnHg. No, tuy lurdi be was always
ily for the kixig.
8p€ak the truth of what you know ;
I you would speak the trul1i,aod nothing
i the truth, as if you wett ujioii your
AfyniifTtg, I do speak the truth, and it ia
^1 can declare, nui would, if I were to
ft next moment ; and 1 vttn safely sMxar
^It w^anaolJeiit aodcommofdy received
f, [8t, TriaW 1. |nLS»ilui.] (derived from
■ law, riTid wUlcU also to this ihy obtains
-^f France) [Douuit, pidd. law.
a- 8p. L. b. 29. c. 2.] that, as
~ J J I M.^ t'd to any nristtn e r uce used
I a neither siiould hebciiur-
' ! lesljuiuny of
jBby »^ deserves to be
HiFcrrtiu, nj ijir innuMi ni Mary 1, (ivhose
mente^ till Ler marriage \vith Pbiliti
, s«?em to have been liumane ami ge-
laa) [S*!e pag. 17] that when dio ap-
iiA Sir tUcbard 'VIli'^hh rhi- f justice of
n pleas, no, * ti»U
tiidui^^lhf I "i *hd uot
vriiuess to s^itak, oi any other
ta be heard, iafavoitr ofthe adversair)',
J part}' ; her [iii^hMi*:ii5's
1 3 atM»e V er could \m hrou ^ h t
ui liie suljject should be admitted to
: and morcofer, thai the justices
suadf ibernM-lvestosit ipjudg^-
for her hi^huesii than liir her
taijy
LiiulUn^h. 11 1-2. St Tr. L or>7.]
dsi in one partieulur iiistanee (when
the (jut'Cirs loilifury sUiies \%us
by statute Si E!i/. e. 4,) it was
at any person, imijeached ibr such
' shm\hi be received and udrntUi rl to
any Uwful proof that be could, by law-
jiness or oUicr\viie,for Itis discharg^e and
?»nd in g-ijocnd the courts grew so
> d of u dt>etj'ine ao uureason««lde
Hid i^ that a piactice was gradually
tfitroduLLil of txaiatniii«^ wiiuesses for the pri-
T, but not upon i»3Hh : ['J Huliilr, 147, <_'ro.
'\ tV jiieuce of wbicb still was,
ar > credit to the prihoner'ti
[TfMhiced by the croivn.
x\ III 7i>.l protest* very
i\i luitirnl practice: de-
dwii;. ^ ul .11 iny act of par*
Eaini i . nrru, iliatin cnmiDal
flieH accused »houhl not have wit^
MMi^' I him ; and therefore there waa
tnlao uiiuit iii>Mcin[ilia jurU against it. [8ec
ik> ^ Ual. p. C. 2ti3. and hbsutumarj^ 204.]
IftdlJac liau;se uf Comtiiouit were uu sensible
Rai, Then pray^ call Isabella Dicke^on —
[Who appeared.]* My Lord, surely I would
uot speak evil of his majesty or the goviTument,
m public in tb*' rnii<rr»'».4U(»nt when 1 prayed
for him in my I I my closet. But here
is another sers lived in my famil}* i
Pray wHl vou speak wliat yon know concern-
in^ my behaviour ill my family, with respect
to the king and goverumcDt.
Dickt'Jitm. He usefl to pray twice a-flay itk
his family, morning' and evenings, and he always
tkrajed earnestly for the kioi^, for his good
tesitih, lont^ life, and prosperity.
HiKi. Did you efcr hear Tue^peak any «vil
fif the king or i^overiuuent in any respect ?
Vkkcson. No, never. Sir, in my life ; nor
do I t>elieYe you ever bad an evil' thought of
thekintr,
Ros. Pray then will you call Mr. James
.ilkinsou.
Just. THMiW. We have bad him alreaflyj ^
and I stH>|K>*je he is gone ; he is not here.
Rm, I callhinmow iotetttity auotber thin^
if your loidT^hip pleases; and be is at hand
my lord, 1 suppose.
L. C* X You should examiueyour witnesset
to^^^elher, but we will not surprisje ) ou ; we will
stair.
Just, Hof. Pray call any body else, m the
mean lime, if you' have any other.
L. C. J. ?iay, brother, it may be he Itath
obst ned a method to himself* he is lor bii
lite ; let him take it. [Then Mr. Atkinson
came in.]
jRos. That which I call you now for. Sir, is
to testify what you heard lipon Ihe 30th of Ja*
nuarj' from me, about praying for the ktngf '
and all that are in authority,
Atkin&m. My loitl, he kept that day. I be
30th of January, os a day of failing and
ol' this absurdity, that in the bill for abolishing
hostilities between England andScotJand, [Htat,
4. Jae. l,c, I,] when felonies couirajtted by
Englishmen in Scotland were ordered to be
tiicfl in one of the three northern counties,
tbty insisted on a clause, and carried it [Corn.
Journ. 1, 5,19,13,15, U9, SO Jms. 1607.)
again!»t the eflorts of both the crown and the
House of l^rds, against the practice of the
courts in Etigland, and the cypress law oi'Scot*
hitid, [Ibid, 4, Jun. ir»07.] * that in all such
' trials lor the better discovery of tlie truth, and
* the tietter ii»h>rm»lion ol' the conscience si of
* the jury and justices, thire shwll bf idloweil
* to the parly arniigneil the l>enefit of such
* credible wiinesfccs, to lie examinrd upon Oatlt,
* as can be pt oduced for his clennJig and ju&-
* titicalion,' At length by the statute 7. W. 3*
V, ii. the same metisure of justice "as cs^ta-
hlisheil throughout all the realm, in casfs of
treason within the aL't ; and it i^as aJlerwards
declartnt by statute t Ann. si, 2, c. 9. ihiit in
;ilIcHses of treason and felony, all Wiine»sej« for
the prisoner should be examined upon onih, in
like maimer us the witaeSMi again &t hlui.^'
4 Blaekst. 359.
I
t
I
I
215] STATE TRIALS, 36 Charles II.
pravcr ; and he preac'lied from that text on the
1 l^iin. ii. 1. pray for kings, and all in au-
thurity : And tnen he did assert iImiI kingly go-
vernment was most a^ceable to the word of
God, and the constitution of the government
of England, which was the best in the whole
world ; and had lieen so approved by writc^rs,
Imth foreign and of our own country : And he
did urge it as a duty incumbent upon all people
to pray for the king aud magistrates, that they
might * hvc a peaceable and quiet lite imder
them in all godlluesk and honesty.' [Then he
seemed a little faint and stopiiecf 3
Rat. Pray, Sir, will you recollect youraelf ?
My lord will indulge you a little.
Atkinson. 1 have been acquainted with Mr.
Rosewell these ten years.
Rog, But, pray, Sir, what d» you remember
of the application of that sermon upon the text,
about prayinof tur kings and uil in authority P
AthinMm. That persons were to pray for
them, and to olH;y them, and that it was their
duty. Tills is all that 1 can remember.
J\(H*'. ^\ h.U d<.' y..i ic'!n«»!a1»cr of my in-
vectives iigaiii^t lIiuNc* tli.f irarliscd the con-
trary ?
Atkinson. "Why truly us to th»»...c liiiii^x, he
did highly condouui those pcrscui^ ihut hiid any
ivav actcil again.st it. And f hrtve l;p::rd Iiini,
iMitli in public and privale, inveigh against those
that liuil any hand in the murder of the late
kin^, and condemned the fact as a diabolical
design.
Ko.;, Is3Ir.Smitlithcici?
Afkhtson. f was very ill <iti Sabbath-day last,
and I tliouq;hi I should nothawroinroutunw ;
and I would not, to th« best, of my reixicm-
brancr, speak a lie, us I am in the pn'sonce
of this hoiifiiindile court, and in the presence
of God, touhoni 1 must give an account ano-
ther day.
Ros, Go<l will reward you for what you
come to do f»r an innocmt ])< -rson this day.
Atkinson. 1 never licaid an ill word a:;*iiinst
the king or governmeut drop from Mr. Jtose-
wellinmy hie. I am not upon niy oath, but
know myself to be bound to dr cjurc and tell the
truth, and nothing hut the truth.
Ros. lam conhdent, my lurd, he would not
speak what he would not svvcur.
L. C. J, The jury are judge.-* of that, 31r.
Rosewell, 1 must leave it to'them.
Roi. Pray, Mr. Atkin.>un, was 3Ir. Smith
with you ? '
Atkinson. Yes, and I have scnl one to cull
him.
Ros. Pray, Sir, let measky«»u as to what
MistrcfiS Smith ^.1vs, that I should soy of the
recorder being muile a j ui Ige ".'
Atkinson. 1 never heard youspcuk any such
wonls in my life.
Rot. V[Mi\ the last day of August last, at
Mr. Shed's house, she says, that 1 did use
that expre^ision.
Atkinson. As to Shed's house, I was then
sick, and was not there. If my lord will giv e
Bie leave to look upon my note-book, I can
tell what day 1 was there.
1634.— TriV/ of Tkmas Rcmeell, [il6
Smith. It was at one l)anie1 Weldy's bouse,
as I think, that you spoke about the mayor,
and the sheriflii ; but what you said about fbolf
in scarlet gowns was at Shed*s house.
Ros. Was there any meeting at the meet-
ing-house, since July last, upon the Sabbath-
day ?
Atkinson. Truly, I lie not able to it^member ;
but if my lord please to give me leave to looL
upon my note- book, I can give an account;
for 1 writ down every day the place where we
met.
L. C. J. Prithee, look upon thy note-book ;
for I have a mind to know something ont of
tbat note- book. Prithee tell me what w as in-
sisted upon the 14th of September?
Atkinson. My lord, I only have a note of the
day, of the place, and of the text.
Ros. Pray, Sir, did you hear me speak of n
great man in Grace-church-sti*cet at the upper
end ; and that if it had not l>ecn for him, the*
fire hail been qucncliird ?
Atkinson. I never heard that expression froni
you in all my life. [Then 31 r. Smith cams
m.l
nos. Pray, did you hear any such thing;,'
Mr. Smith :' — Smith. No, my lord.
Ros. My lurd, 1 can bring all the rest to tes-
titv the siime thing, if your lordship viill let me
call them ovt again.
L. C. J. Do as you will, I would not restrain
you from any thnig of a legal indulgcneeji
that is fit to give to any -man in youroon-
dition.
Atkinson. What day of the month dojott
say it was. Sir, that you spake of the recormr ?
Rm. The :>lst of August, 1 think.
AlUnaon. At that time I was sick, and irift
not there.
Ro$. Pray, 3Ir. Smith, have you ever heai4
me priMcIi upon tlit* 30th of January P
Smifh. Yes, Sir ; I have heard yon upoo
that day, and upon that text, that we should
pray fur kings and all in authority. You kepi
it as a day ot uuuiiiiatiou, and you abhorred tiM
r.ction of that day. It was kept very solemnly,
tor the bewailing the horrid murder of our tale
king. And you were so far from giving any
Luuntenance to the action of that day , tbat joa.
detested it, and preached very much affauHt
it, and you have always preached up kingly go*
vemmeut.
Atkinson. Sir, you were asking me, if there '
were a meeting since July, in the mcetiug-
h'Uise '.*
Uns. Yes, l)ocaur:c she says there was on0
npnn the lOlh of September.
L. C J. h' youlouk uiMin your notes agaiBi
Mr. Uusi: well, 'you will fmd it was the Idth af
.August.
Ros. Where were you upon the lOtli of
August?
Atkinson. I was at homesick then; itiii,
written down, your lordship may sec it.
L. C. J. Do you take notice where jotV
heard the meeting was, when you were sirJtf' .-•
Atkinson. Yes, my lord, I have a short timt
of it.
STATE TRIALS, 36 Charlus !I. l6S4.-*/or High Treasm. [US
Hecorder. Not a penny that I know of, or i
Any a^croent for it *
Has. Pray, 8tr, will you acquaint the courts j
i C, X Wbcre wag ihe meeting then ?
f^itA?:!. In ihe tnc^i ^ tr;e, aa I heard,
. a X P^y, recti! . If; and look
I your book, h"*v '^ , ,. ,1 there ?
ikinton. Mv^' ^ *be lOlh of Aug,
2' J VVh'ta -i:„.Li take that note,
your word, now t
inmn. When my family came home,
o<ly did tell me that day, or the next day,
i;. J, Well, wJicre was u the time before" ?
kuuon. The 3d of Aug^ust^ at Mr. Crook-
'a ; the text was the Heb. xith 7> The
the racetinff- house, myself at home ;
tldca the 8Ui and 13th.
My lord, these gentlewomen say, they
seTeral meeting*. I desire, my lord.
Be witnesses may be called.
C. J. Call whom you will. Who do you
I fint f
, Tliomas How, My lord, I conW brings
pJb of witnesses as tv this point.
C. /. Well, there is Thoiiuis How ; to
t purpose do you call him ?
f- Bly lord, to te!stfty to that she should
■ bcfcTtv sir George Treby, that Mr, How
\ at a contenticle such a time, when he was
Mil Bod tlipnrfnre I desire him, thnt he would
flhaUr t lit truth of that matter.
lina i will testify the truth a3 lar
[kiiaw jr ; biit- ypnt thrtieteU' ■
t\ / How do voii know tkat ?
r. So they %',m,
.C* J* Thiit is no evidence ; and I lare
rliat tl»ey said : If you know any thing
'T«l y*»ir own kuowiedge, speak it.
,_. 11l^ offered
.CI/- 1 tell you their oflering signifies
Iw. My lord, it is an year and a linlf a^,
* *^^'' ^* '* ^ never so long ago» if it
I they Httid, it signifies nothing, H
^ etrideuce ; but if you can say
ir own knowledge, you say
tiie we will hear it.
' some questions 1 desire
« to Mr Recorder.
J * .. fifder be really to answer
Eh all my heart.
n *f* r, 1 ile&ire you would
nee to testify, whei her
B13 teeming >!rs. Baihoe ?
ICJ, Who IS she?
My lordf it is whether there was not a
"cle »wom before Mr. Reconler against
'athoe :'
^1 cannot well tell, Mr, Rosewell.
on>irtion before me (;*s I remera-
r r.iif ^^ 1^ !nfce for a eonvenlicle j
i I • witneJs told you just
t ijud IT [1 oiii iic'f own conffssjon*
Oo you l<now any thing, pray, 8ir, of
ntiun that was made upon that cod-
r. No, Sir ; ynn do not think, snre,
I I stake compoaitiona, or know any thing
h«io?
%9. Was Of I the mc^tjeyy^ir, patd back
bow that matter was really ?
Recorder, ^\t%, Bathoe came to me, and ^
said, she was mistaken if any f^uch worda did
pass from her ; for indeed there was never any \
such conrenticle as Mrs?, Smith swore aha had <
confessed. Upon that I sent for 3Irs. Smithy ,
and bid her consider of it, whether there 1
really any sucli conxenticlc ; and Mrs. Bathoe
had brouffbt her appeal and it is dependini^ ^
now, and will be beard the n«Btt (][uarter«
sessions,
Ros. Prav, Sir, did you tell her, that sbo
misiit have Ker money again ?
Recorder, I did tell lier, Mr9, Smith wa»'
mistaken, and did not insist upon if, and she
would have her money returned again.
Ros. Pray, 8ir, did you send yotir warrant 4
foroneCartivriffht imder your band ?
Recorder. Yon ask me a hard q\iestion ; I
might send a summons for several pereonS| t i
cannot remember all their names.
Ktyii. By whom, I prav>8ir ?
Recorder, i catiiKii leU who 1 sead all my ^
suramotis by.
Roi. Was ft not by these two women, Mrt.
Smith and Mrs. Hilton *
Recorder, I cannot tell ; it may ho it might
be so.
Ros. Pray, Sir, what did you say to Mr-
Cartwright When he came thither P
Recorder. I cannot rcmc?mhfr pnilLCularYv*
Ros, Sir, did you not ask him whathefiail
to !^ay against ihe«e wHoessei that are produced
against me ?
Recorder. My lordVl remember, when Mr^
Cartwngitt carue to me, I did ask him socot
such question ; for they had told me that liev
had, by a person, been tampering with thetn
to take them off from prosecuting a great niaogr
persont.
Ros. By whom were you told so, Sir ?
Recorder. By ihemaelTes. I know nothing
of it : But I tell you the reason why 1 sent for
him i because tliey told me, ihcv went in dan-
ger of their lives ; that they could not walk the
streets in satcty, hut they hatl stones thrown at
ilipm ; and they were ri^vo.'iched qs common
inlbrmcrs, and Were beset hard with applica-
ti on $ of money, to tiike them off from prose-
cuting. And, among the rest, ihey conuilaioeil
of one Cartwright, that he had been dealing
with them ; and it was upoo ihat acr^ount that
1 sent for him, to know what be bad to say i
against them.
X, C.J> These questions, Mr. Roae well, pet- '
haps, may Ik? bviter let alone.
Recorder, I have aeen a letter that dots
ihreiiten them very much ; but 1 cannot say
whence it comes.
Rm. My lord, 1 desire to ask Mr. Recorder^
whether or no he did not send lor some of my .
wiiuesses ?
Recordc r. I do not know your witnesses, S&*,
Roi. Did you send for oot Riihard Oibha of
Rotherbitb ?'
Slff] STATE TRIALS. 36 Chabibs II. i6H4,^Trial of Itawm Bnn
fetsed in truth they were not;
[dications to compound for the foi
they should have their money agi
L, C. J. Prithe^i ask him in g
does he kuow of her ?
Harvey. Elizabeth Smith cam
of mine m April or May last
Alt. Gen. Were you by ?
Harvy. Yes, I was by. Sh
friend pf mine, I say, and she t
she could swear against him, and
for a oonsiderabte value of for
conventicles —
Z. C. J. What friend of thine
Att. Gen, Where does that fri<
Hai-vey. In Southwark.
L. C. J. What is his name ?
Harvey, One Games.
L,C.J. What trade is he P
A sail-maker.
Whereabouts does he
Recorder. Yes, he was eonitable at Rother-
hith.
Ras. Pray, Sir, upon what account did you
tend for him ?
Recorder, I did it, because I heard the con*
atables of your nde durst notexecute their war-
ffants, for lear of the rout of the people.
L. C. /. I tell you, these questions were bet-
ter let alone.
Rot. Mr. How, that which I call you for, is
whether Mrs. Smith has not offered to swear
before a justice, that you were at a oonventide
when you were not ?
L, C. J. She says she does not know any
thine of her own knowledge.
Roi, She cMlTered it a year and a quarter ago,
before sir George Trebv.
L, C. J. Were you by when she offered any
sochthiiM^?
Ho», fwas by, when she was before sir
George Treby ; and she went into a yard, and
offer^to inform against one Mr. How for
being at such a conventicle ; but 1 was not the
man, she said.
Rjos. My lord, she had sworn it.
X. C. J. No, no, she had not sworn it, slie
only offered it, and for aught I perceive, she
is a very careful witness, to see that she does
not fix upon the wrong person.
Ro8. Then if it please your lordship, I de-
sire John Townsend may be called. £Who
came in.] Pray, will you testify what
you know concerning Mrs. Smith's swearing
ihat Mr. How was at a conventicle f
Tuwnsend, Sir, 1 will tell the truth as near
as I can ; I cannot tell the day, it was about a
year and a half since, that he was out of town
of the lx>rd's day, and that day was remark -
able, for I met him coming to town, and it was
about the ereuing, about nve of the clock, and
that day they hi^ brought him some notice of
« warrant for the seizing of his goods, for that
he had been at meeting: Now he, understand-
ing when they were to make affidavit of it be-
fore sir George Treby, he desired me to ^o
with him thither, and I went with him, and he
asked her if she knew the man. There he was,
and I was, and one more, and there came one
Stranger : And we went out to the light, and
ahe looked upon all of us, and knew never an
one of us.
X. C. /. You use to go to conventicles, all of
you, 1 warrant you f
Just. Wit hint. She was not much out in her
conjecture, I dare say.
X. C. J. But she seems to be very careful,
that she did not swear against the wrong fier-
•00. And (speaking to Mr. Townsend), If she
had sworn that thou hadst been there that day,
I warrant you she had sworn true.
Rot, Is sir George Treby here ? [He did
not appear.] Then I desire Mr. Thomas
Uarvcy maybe called.
X. C, J, There he is; what do you ask him?
Rut, My lord, to prove that this Elizabeth
fiknith swore that strml pertona were at se-
TttalooBfoitidif, wUokalM aftsrwaida eon-
Harvey,
X. C, J.
wark?
Harvey. By St. Mary Overy's
he came to me, and desired me, i
meet and speak with her ; I me
it was about the Exchans^, at th
there was she and anoUier felU
She told mc she could swear aa^aii
such ; and desired me to give
drink, which I did, and then she
story, and demanded either 10 c
and that that should take her off
ing against them. I told her, 1 c
thing to it ; but I would acquaint
I did, particularly, Mr. Games. '.
not fit to give her any thing ; wh
returned to her. She tidd me si
])oor, and if she could have but sc
would declare who it was that v
but upon reasonable composition
had offered to swear^ she would i
had taken the copy from a sister i
I think, she said her sister's nan
Farrar, as I remember.
X. C. J, Did she offer to swe
against you ? — Harvey. No, my
L.CJ, You know tliat Gam
don't vou ? — Harvey. Yes, my h
X. C. J. Does he use to f requc
constantly ?
Harvey. I do not know that,
have known him many years.
X. C, J, Do you live near liim
Hiircey, No, 1 do not.
Rot. Fray call 3Ir. John Cat
Mr. George Norton. [Mr. C«
peared.]
Ros, 3Ir. Cartwriglit, I desir
please to testify what vou know ]
ing Mrs. Smith, who Lutli testifie
Carf, My lord, nuiv it please
the t2d of July last, 'Mrs. Smitk
together from seven o'clock in th>
half an hour afler eleven ; and
we went to a constable, one Alex
in Aldersgate-street ; and from
went to Moorfieldi to kwkfinr
"A
STVRl miALS, 36 Charles II. l684.-^or High 7V»rmi.
ce; but there was none : And from
re went into 3Ioorfiekls again, and
neimtman.wboni we supposed was
neeting; andtbismanwc followed
f almost an hour's time, that it was
time of day tbat it now is tiiat I am
Hiatdaj she convicted Mrs. Batboe
I meeting in ber house ; when she
e, and another man, that she never
hooM of Mrs. Batlioe ; and then
me morning tliere was one Rice
it was convicted of a coiifeuticle at
, Dpon ber oath.
Sow do you know tliat?
I I was told.
But it may be yon were told a lye ;
oly speak what you know yourself.
rheu, my lord, several times she
M to coDTict with her, when I never
•meeting ; and also, she has of-
irict with me, when I have been
ihe hmth not been there ; and she
DT wife to convict one Dod^s mect-
editcfa, and my wife refuserl it, be-
vs not there.
Were you by when she asked your
■y end please your honour.
Who did youteli this first to?
aeyou bunted along with her, why
go and roniplain, when she had
■ propositi such a thing to you Y
jbrd, I did not so well understand
did you first of all tell it to, I
Jhl of all told it to one Smith.
Was this before Mr. Rosowt^ll was
kr ? — Cart, It w as afterf* anls.
Did you go to Smith, or did he come
waa throuG:li aiiothcr^s means that
ipeak witli Mr. Smith.
Wbowas that?
(was throiigii u OoUlsmith's means.
What i^ His niur.e .'
Gi name ia Ferrv ; he lives in New-
L
, Huw can^c he tu ur'i'ici>:tand it, to
together?
ieeaiise he luidiTstoorj tiial I was
Smith thai tmiL tl:iit shr; e-onvictnl
MC^and was CMncoriK-ii »iiit iier. I
•vany thiusf <if 3Ir. l^o^c ivi: A that
L
Ki ibe DOttell you, she would do as
me?
fk^ did offer mc this ; that if 1 would
Wver anv met'tiii^'-, slif woiiln coii-
IPlagh litie' w:is n<tt tiien;.
U.f/bo didst thou icll a thinp^ of this
ff^tif to Mr. Smith, aiul that Ciuld-
I it first to that Mr. Smith.
VIkb these witnesses ant I thin^
bs dondfLl never put any j^cat
tttMrn ThttK come to serve a
[SSS
turn, and never make any discovery till you
are taken.
Ros, My lord, you may observe it was her
common practice to convict upon a report,
nor havinv any eye or ear witness. —
L. C. J. Well, I will observe what he has
said ; but I tell you what I think of it.
Cart, 8he has asked me to do it several
times.
X. C. J. AH that I can say to it, is, it seems
she looked upon thee as so very a knave, as that
thou wouldest have done sucfi a thing* ; and, it
may be, she was not mistaken.
Ros. Then call Mr. George Norton. [Who
appeared.] I call you as. a witness, to declare
what you Know of Mrs. Smith's importuning
you or any one to swear c^ainst meetmgs.
Norton, Yes, she has oftcretl to swear,
but 1 cannot say with him ; for 1 was not pre-
sent all that time. All that 1 can say, is, that
she owned she was never at Mrs. Batboe's
house.
L. C. J. So she says still ; and it agrees
with all the rest of the evidence : It was only
hear -say.
Ros. Then pray, will you please to callJohii
Holison ?
L. C. J. There he is : what say you to him?
Ros. My lord, 1 bring this witness to testify,
that Mrs. Smith swore there \\ as a conventicle
at such a place, when there was none.
Hobson, Sir, there was none since I came
into the house, to my knowledge,
L.C.J, What house?
Ros, At Mr. liales's ; she swore there was a
meeting upon the 13tli of July.
Hubson. There was none to the best of my
knowledge.
Just. Withins. We must not convict people
of perjury upon such evidence. • Indict her of
pcrjurVj'if you have a mind to it.
L. C. J. 'Where is the instrument-maker f
Atkinson ? Bid him send me his book. [Which
was done.]
L. C. J. Were you at every meeting always
that he preached at ? — Hobson, No, my lord.
L. C, J, Then there might be many meet-
ings that yon do not know of ?
Hobson, I live next door to this Mr. Hales.
L, C. J. You used to go frequently to hear
3Ir. Uosewell, did not you ? — Hobson. No, Sir.
L. C, J. [Having fooketl upon the book.]
Was there any meetmgthat you kno^v of, the
l.'Jthnf JulyV
Hoh.'U)u. \one there ; he lives the next door
to me,
L. C. J. U'as there no mettinf/- no where
there -awa^ ?
Uohsini. Not that I know of.
L. C. J, She swears to that day, at Mr.
Halfs's.
/i<).v. Ay, and to tho very place.
• L. C. J. Do you know oiu.^ Hodgeson ?
Atki/ison, ll'is Hudson, loy lord.
Hohaon. No, my I'inl ; J do not know him.
L. ('. J. ^\ovv \ou ever at his house at au^
meeting ^
SeS] STATE TRIALS, Stf Charles IL i6S4.«-7Wc2 of TImm Ibm
Hobton» No, ray lord ; I never was at any
aieetiiig thefie two years.
Rot. He liTes next doorto the house.
L. C J. There may be a meeting next
/door to my hoosetwenty times over, and I not
know it.
Ros. Then, pray, call John Crook. [Who
came in.] Pray, Sir» do von know whether
there was any meeting at Mr. Hales's the 13th
of July?
Crook. No; I never heard of any such thing
bat what was according to his own use amongst
his family. I liye under his roof, and never
yet did know that.tiiere was a meeting there.
JRm. Pray, call Sarah Whibby. [Who came
in.][ I desire she may be asked, whether Mrs.
Smith did not swear there was a conventicle at
Mr. Hales's the 13th of July: and whether
there was any such thing ?
Whibby. lliere was none.
X. C. J. That you know of, you mean.
Whibby. I am certain of it.
X. C. J. How came you to remember the
day particularly?
iVhibby. I can tell you by a very good
token ; because the chimney of my honse was
on fire that day.
X. C. J. nfow do you recollect it was the
13th of July?
WhUfby, Because there was a neighbour of
cur's, that is a waterman, that was sent for to
wait upon his majesty ; and I went that day to
call him to quench the fire ; not finding him at
home, I went further to call more help.
X. C,J. How can you tell that it was the
13th? It might be the '^Otb, for aught you
know.
Whibbi/. No; it was the 13th.
X. C. J. How can you tell that ?
Whibby. Because tueie was another meeting
on the 2ath day, for which I paid 20 shil-
lings ; and I can remember my chimney was
on fire that day.
X. C. J. \Vhat day of the week was it ?
Whibby. It was Sabbath-day.
X. C J. Why, if my chimney was on fire
the 14th or 15tb, it may be I can remember it
a little while, but how came it that you do re-
member it so long ?
Whibby. ItwasthciathofJuly.
X. C. J. How can you be sure of that ?
Whibby. Because it was the Sunday before
the meetinff at Mr. Bowen's.
X. C. /. Where was the meeting that day
your chimney was on fire ?
Whibby. I did not know then ; but I knew
since,it wasatMr. Hudson's.
X. C. J. Then you have been instructed
about it. But pray do not think you come hero
to serve a turn.
Whibby. It was at Mr. Hudson's.
X. C.J. Was there a meeting on the 13th
of J. sly?
Whibby. By relation there was ; but I was
not at it.
Ro$. My lord, I bring her to testify there
was no meetmg at MrTiiales's that day.
X. C. J. We know wellodough
linff saints can lie.
Whibby. I have answered the tr
I know.
Ros. I only ask her about Mr.
X. C. J. Sne shall answer sdch
the court shall thmk fit to ask her
Rot. How far is your house froo
Whibby. Next door.
X. C.J* How far is your houi
Hudson's ?—IF*t*5v. A great wa'
X. C. J. Wasit half so fiu* as'
fetch the waterman?
Whibby. That was but three d(
Mr. Hodson's is half a mile, I
mile.
Rot. Then, pn^, call Anne Cc
Just. Withint. Well ; what do
JRoi. Mrs. Smith hath sworn, tf
a conventide at Mr. Hales's the 1
I desire to know of you, wheth
such an one, or no?
Coliim. The 13th of July then
Rot. Upon your certain knowlc
CoUint. Upon my knowledge
none ; I can justify it.
X. C. /. Not there you mean, at
but do yon know there was an^
else?
Collins. No, not to my knowled
X. C. J. Do you know Mr. Ho
there any there that day ?
Collins. I know one Hudson.
X. C. J. I thought you liad sail
Collins. No, it was Hudson.
X. C. J. Was there any convei
Collins. I cannot tell any thing
Ros. Then, pray, call Sarah
Susan Bathoe. [Sarah Bathoe a]
L. C.J, Well, what say you to
Ros. That wliich I call Mrs. 1
to pro?e that Mrs. Smith was mi:
she swore that Mrs. Bathoe pen
venticle at her house the 20th of
which Mrs. Bathoe was convicted,
lier appeal.
X. C. J. You do mistake, Mr. R
says, that Bathoe confessed that tl
a conventicle at her house, as she
Bathoe. She has convicted me.
X. C. J. Ay, but it was upon
sion.
Bathoe. No, I ne\cr confess!
thing ; for I had none there at t
did confess any such thing.
X. C. /. Had you ever any c
your iiouso ?
Bathoe. Tliat is not it that I a
to now. I desire to be excused frc
that question.
X. C. J. Then I will not bcliei
talked as long as you preach.
Hot. There was an api>eal t
lonl.
Att. Goi. She is not a witnes
own ease. It would be a fine tl
4
fiSS ] STATE TRIALS, 36 Charles II. 1 684.— /or High Treason. [9SS
womaii's story slioald pre? ail here a^iiist posi-
tive testioiooy. [Then Susan Bathue came
kid
Im. Mrs. Smitli hath sworn, that Mrs. Ba-
Iboc had a couirenticle at her house the 20th of
Julv.
L, C. J. No ; she only swears thai Mrs.
Bathoe coalesscd it ; hut herself was not there,
Jtof . Did you confess it ?
JLC. J, So matter what she says; it all
l|ieu with that testimony that she has now
givefl : tills matter, it seems, is depending^ u|K)n
SB apfieat, and so she testifies for ficrsclf. And
vkra I ask her whether she ever had any cou-
Itsiiile at het bouse, she will not tell me ;
vbich induces a suspicion, that she does not
MM fi>r a fair pur^iosc, but only io serve a
Bm. Pray, Mrs.8usanBathoe, was there any
Wh coorenticlcff ?
B§tho£. There \«as none.
L C. J. Why, I tell you, you mistake still,
k Souih swears that Airs. Batlioc confessed
to her, that she had a conventicte, but slic
she was not there. And take all to-
fHho', Ktring' she will not answer ^Uieihcrshe
OThad a cum enticlc ; and so it may bo «nily
tMake just nf the day : or she might teU Ikt
i^Wany thinir Appears; and for oug-lit 1
%■» Hales has had convent id cs : and what
Mtti to the purpose of \^hiohyouarcac-
Mai Call Mr. John Feme. [lie did ap.
fnr.') II7 lard, I desire 3Irs. llathoe may
MtfiiMaT.
jCC/'Let her stay then. What do you
olAiijaiafor ?
Mm, It'ntty |>ri)\eslie has compounded ron-
Pray , Sir, citi \ ou know whether !\lrs.
bath e«iiiipoundt'd with Airs. Bathof,
conviction, to set by the pruseciitiou ;
fliHn. Isathoi* was prevailed with so to do?
hrme. >1r^. Fiathoccauic t<i me nboiit r. or
■4ysaj^i ; s:iys she, I niiist *^v\. you to *^o
^■t to the Ht^cunlfT's. I uiu pi-i>ini?(-'l ruy
S again that was paid upon il:o ai»rM'al*l
t. I wasi j^Iad to hciir it, and w:iit with
ht\ UH'time appointed ^as five or six o'clock.
IvMthi-it: a little after tive ; and Mrs. Hmilii
maot there, thut was one uf the v> itue^scs
i|lB her c'jrivictioii, Eli/.ubcth Siiiilii, for \
, Britd her with a notice to att( n<l the Ui.-forucr.
Vcvcre iIktc a second time, al the Bccordor's
teibrralHim si\oVlock ; «he w^usnot roiiu*.
W«mfited hard by, an>I wr-ittii thi:d Liinc ; ai.d
iiilbevi -IS iht-ix-, ai'd <lcsiped my sister lo *>.-
btrthkt she wa^ r.otthcn- ctulirr; but she
ilMldouU but she should have hrriMUTicy ;
to *e the Recorder. Mr. Utrorikr
liifRcral above with him. We waited an b^iir,
Witfif. Mrs. Smith went up and my sis-
wot up w'tiii her, or ti^llout-d her: uii«),
ilheRcGonler to her, arc not \ou ihu
npnthitwas %vith inesuch a lime, with .Mrs.
■■»? Yes, Sir, (says she) I was. Says
WkMmifle vu.maka surji haste away P
I
Upon that, Mr. Courthopc steps forward with
the l>ook ; Sir (says he) I have paid it in to the
clerk of the peace, Thtm, says the Ilcconler,
it is out of my hands, 1 can ^o no further:
but promised a1\erwai*ds to speak with sir
William Smith, the chairman of the sessions,
about it.
L. C. J. I can make nothings of all this.
What a business is here !
Feme. 8lie seems to be a rash woman, ready
to swear any tiling;.
L, C. J. Oh dear. Sir ! and you seem to be
a grave, prudential sort of a man.
Ros. If she did not swear that this nieetinnr
was at Mr. Hales^s, why was he convicted for
that meeting P
L, C. J. I know liothing of the conviction
at all ; it is the first time that I have heard
of it. ,
Hos. Then if your lordship nicase, we desire
to have the rt»coril of It read ; here it is.
L. C. J. Make it appear that she sw ore, and
that what she swore was false ; and then you
say soim'thing".
lio:f. We desire to 'have these copies of re-
cords read. Here it is ' per Testimonium
' Kjizabethflc Smith, or per sacramentum.'
L. C. J. Prove that she swore it.
Jio!'. My lord, v.'o had a very gracious an-
swer concerning the petition that my poorT^iii:
delivered to his sacred majesty in reference to
her coming to me ; wliir!i his majesty granted
with a great deal of compassion. He remitted
it to your luixlship, and your lordship did second
it, for the having the use of what records should
he necessary for my defence. And tiponwhat
application \vc made to the Attorney- Genera!,
it WHS readily granted: but for the searching
of the records, we ha\e desired the Recorder,
an- 1 cannot have it.
L. C.J. You are much misinfiirmed inthat
I will tell you ho'v it was: Yom* wife und A
yoiM'LT niau came to me, a matter of a fort-
niglit ago, and did tell :iie. there were srver:il
■ree:»ri!s, thiit wen* necess'oy for your de/eiu'i-,
ami iln* iKv-'ircKr refused to let > oil luMceopiis
(»f liieiu. I toI:t her then, Codtoiliid but thut
\i)U sliouM h:i\i* .-ill manner of helps from n-
eo;<ls, that wrre neccssriry for your trial ; and
thereiipoii I did ivipiire my brother Jeiiuei\
who is Itf^cnrdcr, to atteml to shew cause, why
Ih* did refuse tv» Ivt ymi have any records thai
\«iu til'. light iu;.'ssary for your defence: Ami
lu y-avi' uietliis li»r onWerj'lliat they were w.-
<!M-.l>«.-.l e«>nviciiuns, :ind were retuvn«'d to the
si'-.^i'Mi'" if peace ; some toSarre\ , uiid soiiu'
into ill.' lloi'X, ami svnue w.MT ill "lu; clerk of
ilir jj- ;•.(■». S hands. *\ hereuji.ui I told your
\ni*» . it *:he woulil iro to the i l(il» of tli*' peace
t'Tecjjiiis of the re< ordf;, iftht-v i!id not reudiiy
givr \(»u eopi-.s :'.lj, our eliaiiie, I uoiild make
tluiii ilo it, if .siieVaiiM* to eomj'i;i:ii to me;
and it' tiny would not, I would l.iy tiieni by the
heeN. \\ ln:ii in\ hiolhi r J«-mier e;iuieto' nie.
said 1, I hi'lieve that which they have a mind
to, is to know upon whi»si' testimony the con-
victior.s arc made. -Novy that is tio part of th#
U
9S7] STATE TRIALS, a&CaABLis^lL iSU^—THaU/Thomat Rt^twrtl,
conviclioa ; tnil tlitl we tbought ouj^ht not to
lie grautei). Sqt in there any law tor it ; for
that is to open a way to tite taiupi^ring with
the kinr> W]lni>s^!!^. Ailcr ihk, theSre i»ii«t
Mr. WaTlopf that came and moteU the court of
Kingf's Woch about this txialtfr ; aii<i we jLfavc
hitn the Rame anstver, that for any one to dls-
«0f erthe k\»^*ti j^iUicssw beibn> thc^ eorae to
trial i^as not to be allowed by law. If Mr,
Attorney had come here, arwl wiid, pray, gi*c
IIS a list of all the witiu'>ses that Mr. Hiosewdl
will oiakc use ol* at his trial ; we shouM have
denied his niotmu. <jihI Ibrbid l^ut that tlit;
mritoesses you brio^ sbouhl be heard ; and that
tlie witnesses they brin|^fihoutd be heard ; but
Hre tnuRt prevent tampering wilb the witnesses
on all sides,
Boi, If the wilncases are snppiTssed, it is
inpoiflsiblc to encmiiiter their testimony.
L. C.J. What do you roe^ia by snppreaaing
the tvitnesses ? They are here proilured*
Mm. Their n&mcs, my lonf, upon the records.
X. C J. Their nanica are never exposed, nor
«uffjit to be.
nv$. >ty lord, it is that which must enable
Ave to mal^e my itefcnce. If we could have
tlieir names, w% CMilA prove them peryured,
L, €. J. It c«DDot ne by law. Yon have the
wine benefit that all the rest of tlie king's sub-
jects have. If any one be convicted of trcasou
by witnesses (twenty in number) we never
^iter them upon the record ; and ti* any be
aeijuittcdf the testimony of the evidence upon
that a<Mpiittal is never entored upon record. It
may be in your matter^ it was not upon the tea-
tiiiinuy or wUnesst!s that the convictinii was;
lint upon the notoriety of tb*' lact, ur by con-
Cession, as in the cuFf t»f Mrii. Bathot; ; that
was by confession, and wrtne«»soiJ. Th<- noto-
ri<*ty of the fact» or tlie coutes«>ioh oftUc piiiiy,
are oU, and each of them sufiicicnt to make a
er>nviction by record. Yon have tliesnmo li*
bcHv that every sidijecl ha«.
ifojL MrCourtbopeisthelleeovder^s clei^^
that saw the convictions in the tieiL of ll^
peace's hand*
r.. C. X We cnnnot tell tliat, without tjie
rli »k r»f tJie peace was here,
lioi. Pray where is Mr. Charles Walker?
f He appeared »] 1 desire you, hir, to testify
whftt yrju know conccToing the coiiviction t»f
l'fi/alnjth Smith upon Mr- Hates* for a con*
vtiitic'le at his house the 13tli of July.
llV*7Axr. You had a copy of itftom the
clerk of the jujace ; 1 made it out.
Rom, Of Mr Hales and Mra, Bith'^e, do
you mean f
Wuikrr. No, only of Mrs. Batlioe.
Ein. Then 1 suppoHe we may have it; and
thi^ clerk will testify it to be a true copy,
IVnihrr. Thisi<i a true copy.
L. C. Jf, Then tualte what use you plra e of
It W ill yon Iwive it read f
l?oi» No, my ford, not yet, If your lord-
shr- ; ' - I'desire Ktchord Drew may he
* u I we ver, if your lordship w%U let
\kiw. .v.v> .iiui paf!!t>j^e in it^ that 1 ctiuaoi so
pt^
so?
would
>k t3fl
well read, it is ilk court b^' ^
Crown reads.] * Memomi
♦ ralem Sesi^ionem pacts pro Loin Muhl ^r\
* timo dieOctobiia, tricesiino sexti»» \c.'
L. C. J\ What do you make from t!j
Here is a record of the conwction^ which sayi
tl«it by two eredible w itm^scs^ unCi the no-='
toriely of the fact she \iascunf icted
Ho*. Pray call Rieh«t.l Ih.-.* rvviro
came in . T PVa y Hi r, \v 1 1
M rs , 8mit]i *s prat-tice in n i
Drrw. Upon the lltli ol July iiLst tbi
was an aei^uaintance of mine, llj^t «ho did
tend M'as at a moeiin^
L. C. /. Who was that that did pretend so ?
DretP* Eli7iibeth Smkh ; and vtie would
have bad some money of him. He eaoM l»
\%ye^ atnl asked my advice. Yes^ said I, 1
)ou lijul better ^ive her money, than to
the ha/.ard of swearin*^ a^atma you : So
did» He took roe alontf wiiii him to a
where they were to meet, where she tnolt
shillings, and pr<ocaiscd lie should come inti» oa
further trouble »1>oat it r
X. C^ J. Hail he ber ii at a eonventicle or not t
.Dreii'. That 1 cannot say.
L. C. J. Do you believe lie was, or w ;w!
Drew. My lord* I eaaiMit say tliat he
or was not.
X. C J, But that IS not the nucKiian I ajiJi
you : for you would not penwifwie him to ~
her money, if he had nothi-eu al a coiivvtil
Drew. My lord, 1 did not know whetliar
was, or was noL
X. C* J. I ask yon agpain, did you believe
i;i as or was nt»t f
Dreu\ I believe he mif;ht, by hJv >- ■"*
wilhnjf to take my advico ; tbouf^'h
was a base thing to give her any moii:
a matter.
Rat, Prav, call James Howard. __
L. C, J. There he is ; what would you Iti
with tiim.
Ros. ^I> lont, I crave leSTi* Hrst to ntik M
tress Shaft oe ; Are you Mr HiUonn wilbr
Smith. Yes.
Ros. Then 1 desire IVfr. Hmvard may
what he know s < " (♦listrtss 8mi
But Hrst, wlii* ire you ,*
Smith, GeOP^r nniu* s.
Hoi* What then do you know df her,
liofuurd. r was once drinking a cup of
ill Grub-street, where she did lake a parcel
money in the concern of the king, my loi
X, C. X Prittiee, speak up : In w hat
cem P
Hofwtitd^ $1ie look a bribe in the eoacem
tliekin^.
X. C.J. What dost thou me^m?
liowwrd. Uf a person that had breti H
meetina.
X. C. J. Priibc5e, what bribe wan It T
llouard* About II or 12 siiillinys^
X. C- X Prithee, of whom was it?
H ' 'I* he man t never saw, vm
woiii 1 came in by chance.
X. V . .■ . . *v V ioo^ ajio \%\Sx\& ? ,
^29} STATE TRIALS, SG Chari.es IL J 6Si.^for High Trtifsom
HoKCTxL AlH>ut the middle of July last.
L» C J, Who ditj you di$cor«r tbis luttlter
Homnrd. My lord, I was only drinkiiifT a
oip nf ale ; ami 1 disecovered it to Mr. Dreu ,
wmat inillcd last.
Jl C. J, Was Mr. Drew one o£ them ?
HcnrairJ, No; Mr. l>rew 1 tirii nciitiainted
; tie is 111^' aeighboiir.
L\ /. W lieo were you at ckurcU last ?
tfc«K«rt/p The last Lord's day.
/*, C. J, WbettJid you receive the sacra-
tiarard. Hy^ord, t ocfCf did* We have
10 piiri»fa -church at pn^ent ; it is now *-
kidob^.
/* €, J. Where do yon live?
Motparti. lo Mugwell street.
L. C X Uaie you no {>ulilic preaching' in
isb?
I do hear Br. Fo\*ler, and Mr-
too, eotnetiiues.
That is» V hen there is no eouveu*
ipose) iu the way. That Mr. Hinytliies
dwler are both very well known,
t$ Mr*. Anne Farry here ? [She did
ar ] Pray call Mrs. Anne H i^jjirenson.
Aneai>t;d. ] Do you know Mi^. Shaftoe,
ridtoB* as fihe is called ?
M y lord , 1 ha v e v cry Uttl o kno w -
a^it ber ; I Itave known her hut a very
litil^.
.Bail What te^^timony can you give of her
CUBWIMlJiOll r
Bm$auon* Smoe I have known her, 1 have
h^xmmmt lil thinga of her : iiut 1 cannot
9ptak to any thing^ of mine own knowled^.
X. C J *Wfi\% so jieople may say a great
■M8I i^fyou that you do not deserves
nartih iiii^ of.
Hm. Call Aane Carter. [8hcdid not appear.]
Idatie sir John Talbot would please to fie ex-
Mt appear
J. C. /. Here ts sir Jolm Talhol by nic.
iKof. Sir, i desire you would please to testify
tslhr court and the jury what you know con-
' '•' ■" -iventation of nui^tress Sbaftoe^
Mrs. Hiltno.
.-„.. .».iA>£. She was a aenrantt that
my bouse a great many years ; but I
t tise to converse with her.
^Soi. No, Sir John ; but what do you know
' her conversation while she hved in lOur
wumf
% /. Tafbot. AH that I know of her, is,
ifce had nov^y good character in the family.
L (', X Do vou know any thing of your
«wnk ■ ?
Sir As to any thin^ of my own
bowknigf J I cannot speak ; it is all no other
in hiear->«av from all the family.
. C. X But I ask you what you know of
r own knorwledge, Sir John. TeU us tl»e
tlUr* vnii yOUnilf kuOW.
It was the complaint of all
l^le house, that she was guilly
^ ttihay to and stories io the taimly.
Jloff. Was she reported in the family a Ire-
tjuent lyar ?
Sir / Talbot, She had that cha^-acier in tl>c
family; all the servants ('omplaimtd of it. I
only inow of other ihinj^s siuce she v% as gone
out of the family ; and lliat she has been coo-
cerneil in an odd sort of practice<» about at-
tempting to steal away a younof lady.
L. C. J. Do you know of a of your owa
knowledge f
Sir X Talbot, I had it frotn herscH; and
upon her own af&rmation.
£. C. X What wtt» that ?
Sir J. Talhvt^ It was alnjut the practice that
had beeii set en foot of chL^atinq: people of
raone}' for procuring Ibrtuiwis ; iiuriiculariy
eoncernincrltie daughter olone sir H airy Jones.
And there have a great many gentlemen Inrca
abused about town in that 'matter, and made
beliete that this woman had an interest in her,
and would put this great fortune into their
hands : I have not been privy myself to a»y
of the negociatioos, 1ml 1 have understood
iherL* were such practices; there was one
Salem and she that wei^e engaged.
L, C. X Look you, sir John, Do you know
this of your own knowledge ? For %ve must
not hear evidence to take away people's repu-
tation by hear-say : If she hnth confesseil
any thing* to you, you may speak that, and
let MS know it.
Sir J. Talbot. My lonl, if it be not too long
to give yon tlie circumstances how 1 came to
know if, [ will tell you what 1 have been in-
formed about it.
X. C. X No, that k not evidence, sir Jolm ;
unless you know it yourself, or had it by her
confession.
Sir X Talbot, IMy lord, I do not come here
as a voluntary evidence, but I am here called
upun. And J "in v lor<l, I think I ought to give
my lestiinunv, Tlu ntan's hie be concerned.
J., C. X iind s^ ought %ve who arc upon onr
oatlifj, to insist n^m it, that you give legal evi-
dence, what you know of* your oivn know-
ledge ; and 1 ask you here again, whtdher
what you relate he of your own konwledge,
or what was by hear-say ?
Sir J Tot hot. My lord, 1 had notice sent
me by a letter, That there was a gentleman
come to Thistlenortb with a coach and four
horses, with a design to steal Mrs. Jones. I
cannot ftemembcr vmether there was any name
to the letter, but soch a letter was sent, and 1
was to inquire about it of this Ellinor ShaiV>e,
who was engaged in the design. I sent to
her to come to me, and she did come; and
told me that there had been such a practice of
one Salem, and she would bring a ijentk'man
to discover the whole business, and she did so ;
and brougtrt this Hilton (by whose name, as
her husband, she owns hersett^, and he came
to me, and gave me a note of several gentlc-
men'.s names that were toaccrticd in it j and,
t behcve, I have a book wherein their names
are, 1 then asked. Why she did let it sa
long rem, and the busi&ess go oa »a ^ ? Mr.
931] STATE TRIALS, 36 Charles II. l684.— TV-ia/ f^ttomai Rauwetl,
Hilton did confegs, that one particular fj^entle-
inan had been kept in treaty, who was a coun-
try-man, and came to live ui town, and was in
town the greatest part of the winter upon this
de4>!vii ; and did walk that way, expecting' that
this Nau Carter should hrhigf clown this Iieiross,
eto that they mitjrht have an opportunity to steal
iier. Mr. llihnn had no otner way of an-
phmtion to me hul by this Shafloe. ; and he
(lonfissed himsflf, that he was a party con-
cerned in tho dcsif^ii.
L. C. J. Ay ; but what did Udton*s wife
say ? For wli'at he said is nothing^ to the pui-
jioso in this point.
Sir J. Toihot. 81ic is one that I had no com-
munication with, nor couTcrse, while slie was
in my tamily, othcr\vise than as an ordinary
servant ; but this same Mrs. Junes was my
ward.
L. C. J. Did she confess she had any desi^fn
in this matter ; or was to have a reward tor
scttinfijf the matter on foot ?
Sir J. Tulbat, \o, my lord ; she did not
particularly confess she had any hand in the
desii^^n, but it was that which several other
persons have come and inquired since of my
tiinuly abiiut ; who have told me, that there
ivas one Shafto^, otherwise Hilton, that was
cpnccrned in it.
L, C. J. That is no evidence, Sir John, 1
inust tell you again.
Sir /. Talbot. My lord, I cannot make the
evidence otherwise than as it is. I tell you
>vhat I know.
X. C. J, You understand yourself so well,
sir John, that you know it "is not evidence ;
;ind you arc not to talk of what other people
havetoid \ou.
Just. }i'Uhin$, How long did she live in
your family ?
^■ir J, Tfiihot. I cannot tell how loni^, my
lord, but 1 believe she was there ten yrai*s.
Just. Withins. Th^t is a strange thing, that
you sliould keep an ill woman so long.
Sir J. Tttlhot. My lord, v ilh your permis-
sion, she was a S'jnant when thi't child came \
to me, )ind when the mother died ; and my I
wife did not think tit to put her away ; s<i she
came and staid v»ith the child as lonp^ as my t
wife could keep her ; but at last bhe did fa. '<
Oitnit ditfei'cnces in the family, lies, and stories, !
and was found to be a pers«)n not fit to live in {
the family ; and therefore my wife was afraid '.
to keep tier any longer and put her away. j
£. C. J. Well, i\lr. Rosewcll, have you any I
other witnesses !*
Ras. Pray call Anne DilUnarham.
J.. C. J. \Vell what do you ask her P
. Hot, My lord, I bring this i\ it ness to prove
coneiTo-ng Mrs. ShaAoe, alius Hilton, that she '
off CI ill to sweur against people, as being at
Vou\t..itiL'!e.'i, uliom she had never seen.
DiiUngham, ^9^e lodged in my house, . iid
is a VfM-y ill woman ; and asked nie to hwcm *
^ racetiugsthat 1 nevtTrkncw anythimrof at
•U in my life. I never was at meetings but \
l^lmt thvteoii yoar^ a^ { asked her why I J
should s\vcar, or what I coold swear to ?
told me, 1 should have a share of the mi
if I would swear to what she said, whet
wore right or wittng, 1 should have a slia
I would but swear.
L. C J. How long ago is this ?
DiUingham. Two years ago.
L. C. /. Who did you tell this to first i
DUlingham, My lord, I am subpo
here to give my testimony.
L, C. J. That is true ; but who did
tell this, that you Ulk of first to ?
DUUn^ham. My lord, I never told it t
body but her, except it was to my own
banil.
L. C. J. But why would you keep t
a secret, and not tell it to any body ?
Viltin^ham, Why, my lord, Tdo not i
it for any malice to her jat all, I assure yo
L. C. J. Where do you live ?
DiUin^ham. In Long- Acre, at the Gn
Ball.
L, C. J. If you live in Long-Acre,
came you to discover any thing of a n
that was transacted at Uotherhith ?
DiiUnghum. 31 y lord, I know nothing
of my own knowledge ; but what she }
have |)crsuaded me to.
X. C. /. But how came she to talk ti
about a matter at Rotherhith? Or, yon to
any thing about her ? That 1 desire to k
and how you came here ?
Dillingham. One Mrs. Peirce, thai
neighbour, asked me what I knew of
andso would subpoma me, because she k
at my house.
L. C. J. How long did she lie at
house.''
DiUingham. I cannot tell ; I believe
half a year.
L. C. J. Well, what iHwame of her ?
did slic U^have herself?
DiUinghtim. My husband turned her
the house, and would not entertain her
cause she kept compnny with a man thi
none of her liusband.
L. C. J. Why, can you tell when they
niarrif d i*
DUlinehmn. She went as the wife o
George IJilton, when she was nor married
L. C. J. How ! Was sho not married i
lJtUin"ham. No, they witc not ms
then. He was not her husband then. '
are a great many of our neighNiurs tha
say more than 1. She is a naughty
woman ; a very ill woman ; if I sliould ca
whore, 1 believe she might trouble me ti
but I believe il to be true
L. C. J. Have you any nwre witn
Mr. Ri sewell 1*
lifls. .\'', II' \ li>rd; hut I hope your kn
will i^ive me icavc to say something t
court aijd jury.
L. C J. Mr. Attorney, have you any
vtitnesses to call tor tbe'king ?
Att. Gen. My loni, we have some
qcsscs to support the credit of thc^e witn
23S1
STATE TRIALS, 36 Charles
that we ha?e produced : But we do not tliink
tbeffe is any »eed ; nor that it is any way di-
Biaisbed by the defence of tlie prisoner at the
ter.
L.C.J, Do as you please, Mr. Attorney ;
fo en your own way ■
' Att'Grn. >o, rny lord ; we shall trouble
TOOT lordship no further with any evidence.
L. C. J. Tlien, 3Ir. Rose wolf, let us hear
vliat you ha%e to say further li>r yourself; for
alltlie wiuifftses ha^e been heard, of one side
ia4 the other.
Mr. Hmttnreil. My lord, and dear country-
noi, who are to hemvjud^ in this cause this
Aiy, what I now speak, is with resjM^ as much
to their precious .souls, who are concerned
cidKr in prusri'Ution, or tryini^ of uic, as my
mfaf<:ty. There is not a man of you of the
'jmy\ thc.ig-h you are stranpfers to nie, but 1
••wl by down my life to-morrow to save
laeof your souls, if I mi^ht bean instrument
Iktffin : How much more then all of them,
i the mnsMderation be taken of the worth of
li inniortal soul ':* Your lordship knows, and
iai teosibk', liow unlit I am now to do such
iflhiof as this is, in the company of so many
laned raitleiiien of tlie loni; robe. 1 ha?e be-
Inttd uready t<io much of my i^'norance in
■^liainf, and 1 hcj; your parilun for it ; and
Ibably than k your fordship, and the court,
fcilkiiBdol^encc tliat j^ou nave shewed to-
MiiiBe in my infirmities. You are, my
M Mil the presence, so in the place of the
niM, the judjii^e and lord of all, at this
«]: \m are Clohim, I have said ye are
«l4; wbMe propei-ty it is to help the weak,
Mi<p«yiMK>nat<r the' innf>rtMit ; therefore I
ttktdki apfilfig-y in reference to my own in-
■wat ii , and niv ^rrat inability to sum up the
fMbthat have bren in this cause. If you will
|M»y m*akn%?NS in competition with their vast
M»m, who arc of counsel for the king^
ipOM mtr, and my i^'norance in the laivs of
^ bntf a:n*in<t their arreai kriowle<lg^e ; 1
«»r4Hii cxniTt lo he overtlirown, notuith-
■»^".'iio . '-e is very innocent, and 1 have
Wit.-* •! i:'.- •ve'Sence of (rod the trulli of
■f bfar: «lr . f..i\ . An'l if 1 were to be calh'd
•iHeliftr *,! i!)/. .J- si C-..d, the jiu|;^re (if all
*fe«th. ''..t-jr.-: I nU .p, I shoiilft ^jieak the
■■^th" ••». i-j; I »?ii'.t, airl .. » <itiiir. fain
•■■fck a lyi iv hfith a base, ami a vt-ry \% irked
fcuff; nadtli-: I " i:*.ke thai liurieth with urc.
•jTrp - \ V.'i 'ill lujis. An'l I ]»i-ay Ciodcon-
'•wth**.- I'l-ntli «n»ucn •'u'nin they have
••!»«!♦•<! .'f\ :;I*ummI me hat thev inav rcpri t
jflkirnin : m hich (I bU>s ' Ind) { l;:i\c pray« •!
■filrsn «ii"-.i il ivs f:ver hiiico 1 was coiifinnl,
I II ill (zikI Willi tiM'i'.s, in rharity to
vr:|.. And ! Wi-lit-ve I ha^e prayed
^^- — Jus maie'^ty in ime wicrk, than tlsi'v
■•^d'/otf ri ;iil il;i:ii' lives, 'i ii''y are n<»t
.■»lia5'<» tr.'euds. hnt his ciKMiiit s in hriin^iny;-
•fclte^atii'Bs against ihosr that an* his inu-,
iMri, asid Innocciit subjects, as I am, niv
pikwnretH.
* M Wre, my lortl, I woukl first observe the
AKsferliis
II. l684.-:/or IHgh Treason. [S34
variations that are in their evidence. In the
iirst place, Mrs. Smith swears, that the text 1
preached upon was the C>lstchapter of Genesis.
And hei'c is .Mrs. Hilton conies, and she swcari
afterwaiHls,thatit wasthe i>Oth ; herein they
\'ary. Then I sujtpose, my lord, if they vary
and differ, in law they are not two witnesses^
but difTerintr so are both of them incredible :
And I thhikthc Statute haw of this land is,
that a man must be convicted upou the oath of
two credible witnesses.
Next, my lord, here is mistress Smith
swears, that these things were delivered, which
are char<!fetl in the indictment, all together in
the morning-e.xcrcrise, in the foi*enoon : Whereaw
your lonlship hns iieurd from several witnesses
(and I do not know one man of them but fears
a lye ; and would have sworn to the truth of
what they have spoken. They tell vou) how
every passage that these people woufd pervert,
must come in, and how it was divided. I hope
your lordship will pardon the infirmity of two
or three, a few illiterate men, that are weak,
and could not so well instruct themselves to
speak in a court of justice upon such an oc-
casion : But upon the whole matter, they give
such an account, all, that it cannot be pre-
sumed, or thought, that they should agree to
speak any thing that was not true. And 1 am
confident, there is not a man of them,'but would
take his oath (as I said) of the truth of what
he has here declared. And they have declared
that there were two distinct exercises, as 1 havo
protested in the presence of the great God.
That in the mornmtif was upon the 20th ot
( jencsis : And the other in the aftiTnoon (there
hi'ing an hour that past between) was upon one
{^articular verse of a chapter in the Epistle to
the Hebrews, quite distinct from the other
tliscourse that was in the morning. She not
only varies from ihc truth, hut also from her
f«>llow-witnes$, that it was all in one exercise.
This I submit to your lonlsliip*s and the jury's
consideration (these worthy gentlemen that
are to judge of niy life and death) whether
they are two credible wimesses thus varying.
Thn-e he several other things, my lord, thai
iKH^ausc of my pr(>sent infirmity, 1 may uot so
readily call to mind ; hut which ought to be re-
c.illo'fand recolhricd, as in reference to the
lirr-Non, w hr.sr house we met at. One says it
was (>:u- ciipt. Dauii'l Wehlv's: .Another that
it wa^ our Mr. Daniel's, l^herein again they
vary ir ''cfi:ivn«'e to the person ; and if they
are'oiit in one thing they may be out in another.
Smith. I can say nothing about hLs name ', I
ncvn* was then: in my life iM-tore.
L. ('. ./. >listri*ss ! uiistnss ! You must not?
inten tuit him : he is upon his dclcMK'e for his
life.
Ko.v. Thru, m\ lord, she sa\s that my text
in the attcriiooti uus u])on a 1*:alm ; and
then.' was no sui'li lliiii^-, as yoin* hirdship has
had il partirnlariy nunW :i|ii)car tn you. 1
have ingenuously told you thu te\i aiitl the
truth : I li:iM> spoki'U it from uiy heart in the
prebvnce of tlie j;i*oat Clod ; and ui»on what
S35J STAT£ TRIALS, 36 Charles 1L i6S4,.^Trial of IHomm Rouwell, [236
occasion e%'ery passaj^e that they haTe wrested
was spoken : And your lordship may thereby
perceive how most abominably they nave per-
verted my words. Now, they having wr»ted
my words that are innocent in them^lves (so
itir from being treason, that I do not know
there was any fault or crime in them ; being
only plain scriplural proofs of doctrinal pro|K>-
positions in divinity, without those applica-
tions that they have pretended to), certainly
your k>rdship and the gentlemen of the jury
will consider what is most probable or likely ;
what they have declared, or what you have
beard from the several witnesses that 1ia?e coiofts
in lo testify concerning me.
My lord, I was going to s^ak somethiog to
your lordship of the great wickedness of their
making the application of what was innocently
spoken and meant, to the late king of England,
and his present miyesty whom I daily pray for,
and always did, whatsoever these witnesses
have declared concerning me. And your lord-
ship has heard my maid testify (whicli I little
expected) that I used to pray fifr the king every
raoming and evening in my own house ; and
God knows that to him I have addressed myself
for him daily: And more than that, she heard
me (when I thought none hot the God of hcAven
himself had heani me) pray for him in my
ck>set. I would desire your lordship and the
jury to consider, whether these are not the
criminals (and not I), that they have ooada ap»
plication of innocent passages, and wrested the
words, that were plain and innocent in them-
selves, to a wrong meaning, to make me guilty
of High -Treason ; apply lug them to his ma-
jesty, when I never uiicuded, or thought the
least of any such thing.
Mv lord, I doubt not but there have been se-
vrruf that have joined in it, that have helftcd to
frame and forge this accusation against me.
And there is that which T suggested to your
lordship in the morning, in the beginning of
this cause : These |>crsunK have not only, or so
much sworn nic a knave, hut a perfect fool
and a madman, to speak such absurd, incohe-
rent, inconsistent, solccistical, and nonsensical
things. I believe there is no man of common
sense and reason, no genth^man that is here
this day, that cum imagine that a person, that
had the use of couunon sense and reason, should
speak such absurd things as these are. Be-
sides, my lord, I ha\e brought witnesses, se-
veral of them, to testify there never was any
such thing spoken by me, as they have trsti-
tied against me, and nilsapplii^. I have like-
wise proiluccd scv(M*al |H-rsuns to gi%'€? evidence
of my usual and constant pracrticti with relation
to the king and govern meui all along, my con-
tending fur monarchy, and against anarchy,
which did too much reign in these late days uf
confusion, which I remembi-r by very sad ex-
perience, though I was then indeed biit a child.
And when I came to he a man, I used always
to observe the .SOtii of January, :uid the 20th
«vf May ; preaching upon thosc*da> s, and press-
in^ people tu ouedicuce : auJ inveighing
af^^ainst those that had acted against their prin-
ciples, and were rebels either agamst his pre-
sent majesty, or had been concerned in that
barbarous act agamst his royal father ; which I
did utterly abhor.
And, my lonl, mcthinks it should have heco
very unlil^ely that a man, that should make it
his common practice so to do, as I have terti«
tied concerning myself, should fall under wch
a suspicion and accusation, as I now am ; or,
that such on one should fall into such a solecism,
as the words tliat are testitied affaiust me mart
import ; it is very unlikely. I leave it to the
great God uf lleaveu to Viodicate my inoo-
cency in the matter ; which 1 do not question
but he will do.
Then, my lord, here are several gentl<
of the church of England, that have
concerning my conversation. They have had
acquaintance with me many years, some of
them near 20 years ; the kast 8, 10, or 18.
They never heard an indecent word, with ra-
pect to his majesty, or the govemmeiit, fidl
from roe; any unwortliy reflection upon either
of them : But my constant practice was l»
pray for hb majesty with all eametlnen ani
solicitnde. There arc several of tbein fan*
tlemen of repute in the city. There era pir-
ticularly two persons, that belonged to an hi^
nourable famdy in which i lived eo mmf
years, who give a testimony what my convcfw
sation there was, and my constant practice if
praying for the king, while I was there. Thii
your lordship, and die gentlemen of the yarfp
have heard aiid observed, I doubt not.
But, besides that ; your lordship and thejnry
I hope, obsen'c as to these people, who nraw
against me, what my witnesses have testified,
that they would swear any thing, and finw-
swear it : and what a character is given can*-
ccriiing one of them particulariy, yourloniihb
has heard from that wortliy gentleman, nr
John Talbot, whose face I never saw befoin H*
was in this place. And by tlie last witnea^
you have a testimony concerning her lewd can*
versation. And siiveral other witnesses pratn
she would swear any thing for them, it they
would swifar fur her. So that it appears aht
would, and does swear at a venture such and
such conventicles ; only unon hear -say, and
mere report : and that she lias taken moncgf^
and made some comp(»sitions too. These thin^
f must refer to your lordship, and tlieae worthy
gentlemen who are of the jury.
Ifthf-n, my carriage and conversation te '
well known in the world) be compared wilk
that character that is given of tliese persons, !•
niiibt humbly submit it to your hinlship, anA
the jur^ , how ihr they arc to bcbelie%cd againil
mc ; and might argue from the incrcdiUTity eC
their testiinuiiy : but your loniship cannot bnlr
remark it.
31y lord, it is very strange, that these t«#
women sliuuld exactly remember these words*
They agree in every paiiicular circumstanco*
I durst appeal to your lordship, and the jnrf^
particuhiriy to thejnry, if now the}" would on-*
m
STATE TRIALS, 36CHAlltKs IL l6u.—f€r High Treason,
r338
ilateke M rapcti upon tUeir notes^ the words
ibiihiT^fo o4le» been repeated liere ; and whtt-
iber tfcoe is any of Ibcn woulil be able to agree
kiitliie|MUtieiiUirwqrds? They have an in*
"'*' t memory, that couM so exactly agree
thnt tbcae wen the i^ords. f do
*usto yuur lonUUip. For, my
n 1 i . f'ss ot my defence very much,
Itely upuii Uie incrcdiluliiy and improbabi-
ft kill evi'u ibf iiupus>ibitiiy of llie cvideni-e
1 tWy ba^** t:tv(*i», I liuiiibly submit it, 1
wy. twyour bnkbip, anil these gentlemoA ;
tlulkai^cH with thtfUt and the great God of
Emtfii, ^]iom 1 prBy to direct ihem. 1 hope
tiiBy will rtHifiuler the lite of a man^ and the
ittirtb of blood. My loni, however I am repre-
waled ih»day^ 1 know mysiLf to be a iaithful
aKt to his majesty ; and to the great Gtid
^ eaieti, wbose I am, and whom I desire to
tfy kid, 1 will now, if you pleaie, i&genu -
■_ ^ ^^-_j^^y crime, if it were any» 1 have
Dtly preaching in my congrega-
liatt,iKilol*yie scriptures, and it b true, as your
Mdup ««ct, the chapter came then iu course
to be expottodcd : which 1 useil to do, to let the
undefstand the scripture, as well as J
I ; lor th« people perish for lack of know-
! ; and it i!i by the kno%vle<tge of Jesus
^ 'i V must come to hit? and salva>
know is life eternal. It has
**^jr lo expound the scriptures to
mf h Ui£ presence of the great God, before
ilapeftk, towliom t can appeal for the
landmiegnty t»f what J «iay,tliat Godiiefore
ibotu we must uilsiaod (all, Whose faces I see
' slulJ meet, und see one another, at the
tribunal)^ It ii to this God tliat I appeal
Itdlhv truth of my heart in these thing;;,
lad, tny lord, 1 shall continue, as I have done,
kMtevi^ God diiiposeth of me, to pray for the
lilriii'} ssof his majesty : my usuai
_ and evcniog^, being-, that. God
rn uim with grace here, and fflory
tJicreafter. And this I shall do by
^'' ^ ' d unto my dyin^-day ; for my
-Mch things OS have been tM*.
i..i^ thi*i day
' lord, 1 have dealt tu^ plainlv ivitb
■irn\ thi- inrv, n§ I ca«. My in-
'..' to leave my whole
'■'■ with tliese worthy
country lilt o<, who, I do not
V i\ jitst rompa*»sion and con-
e, under these circum-
Mid| and to all the cir-
Uicus tlialtuve been made out in this
ttM this Jay.
L C. J. '* ' 'ley, will you please, or
f m1' tht: i i^eli to say auy thing in
ittef ;
^Oen. Bio, my lord, we leare it entirely
r lordiyp.
C. J. GGitlemen of the jury, thif case
k|| bcU a long ttuie ; and, gentl«meQ, f must
liyQu, nob^yougiitlo think time too long
in a case of this nature, wherein the gotcm**^
mentis so much concerned on tli« one sidef^
and the life of the prisoner at the bar on thi
other. * Et de vita hominis nulla est cunctatia
' lOTiga.' I think no man ought to appreliend
his patience too much tired in finding out tlii
truth in the case of a person that is tried tor bii
life. However, gentlemen, by the way, I
cause the case has been long, it is fit that th
should be sonie recollection made of it ;
in order, ns near as 1 can, that I might lielfi
your raemoriejs in the evidence that hath
given, both for and against the prisoner at th
bar ; I would endeavour, as well as 1 can,
repeat at least the substantia] part of it to you |
and in c.i&e any thin^ that is material he onut
ted, God forbiJ but it shouhl be supplied
any one that is able for to give any assistanc
of that kind y for V cannot pretend to be »o eX4
act, as to give an account of the whole eviJ
dence myself But, gentlemen, I must teT^
you it isa duty iocumwent upon the court, i
give you all the assistance that can be in
matter of this nature, and I will do it with i
much integrity, and with all the care and cau
tion of doing no injur%% either to the prtsone
or to the king, lietweeu w'hom we are to be in«(
different, both, you, and the court, as possibU
can be, that there may be no wrong done oi
the one side, or on the other ; and, according
as the prisoner lumsolf both said, w hat 1 sha
!«peak, I know I Kf^enk in the presence of tb
great God of heaven and earth, who is to
the judge of all men. We are upon oar oaths
and you are upon your oaths ', and we arc all t
us bound by our oaths that we have taken, to 1
guided in ibis weighty affair (for so I must call
it) by the evidence that has been given to tis i
this time, both against the. prisoner, and fo
him. For certainly there cannot be a thing i
greater concern, nay, even in point of oom«
passion, than to see any man come to be ac-^
cused of so high a crime as the prisotier at
the bar is now tried for. And he must have a
strange obdurate heart and conscience, tliat
cannot so far participate of tlic comofton sym-
pathy of hun\an n.nture, and his fellaw*Gmt«i
tures^as tocumpas*sionateany one that i
in such cireumstauces as the prisoner
But then, on the other hand, the denials of tha
prisoner at the bar, with all the imprecation
that he has made, and at! the affirmations tha
he has offered of what lie has formerly done|
and all these things of his appealing to
great God of Heaven about his moocency, tha
I must tell you, of themselves, they are not
weigh with you ; for jour business is to ktiow^f)
according to the oath that yon have taken,
whether you have eiidence given to you
(since you a re sworn upon this trial) to satisfy
vou that he is guilty according to that evidence,
^ that if the attirmation of the person ac42
though attended with never so many uap
tious one way or other, be offered to persQiMi^
are in your case, as jurymen, it is not to wc
with vou at all one way or other, if it be o„.^
the atifirmation of the party accused j for if so^
180] STAtE TRtAJLS, SG CiiABLES IL l€U^T}*iat^'I%ammm$meN. \i
I
I
IbMillierttiVfl aid never be anj gfuilty f^ieraon
bftiu^lit W-riifp i»rtv 'mrv wliatCTemer ; or any
Of I any^a<^^i€at, or
be if hisr Q\%n aifir*
mitiilii I iiiii I iiiini, hmtM^ii^ and hii own com-
MtodBltioiis of [itinscir, woutd be nitfiiaii^nt to
■equit liictK iirn\ set aside liia aecu^alioh. ^
tbat hi»w yon arc 10 {(ti accordifi;^ to tbe evi-
dd ~ l. And so are we, a^aicuit this per-
i4K: lV»re you.
<it_!iiHni>°ii^ lamsjlsay tliat it is very unto*
wiird, and, I bope^ by this cause there v»Hl be
ftimmiiig giveD^ at Least, to other persotii:* that
Ibere k&ve \t^n too many notorious tmnB^
grsMOtB of the law in this mcnter of convett^
tidoi. 1 Bpeak that, not to affect this ease at
all; but 1 speak of what the nation haih hail
Intlao woftil ex^i^rience of, ds to tUefiCsetiittouE
meetiD^f thiit tire, and have bec^o contiuiiallv
kept up in opposition to the laws ; and I speak
tiothtn^ a« to the rneeting that was at this time ;
hui I *pcak it, that others may be warnwl for
futiire tiroes ; for always miiiK^hief attends the
nptm and public traoagresaion ot* tiicj law. God
lorbkl, hut that people should uorsbip Uodj
aodserrte him, ai i * their own cf>n*
•cieocies; iberufoi lia been so indtiK
gttA to tbctDf m t<» L : \ t> iiiLm leave to e^xcroi-^e
ibfirrdigioii in othci munnerthan us i^donr in
thecbitrvli of Eugbitd; providi-H ''■ - '
any oirasiou «jC tumuU ; but tli:*^
ahtfir* tive^ except those, of the s.i..., ,..\,
Iteting ttjgethcr ; i^hich yon knoiv the act of
pafkament Imth provided lor. And the truth
of it is, the rta^son of ibe Ltw i* very plain r
For yon all know, who at*e|rcntJlrnKV oi'<]na-
hly f that ibis law^ as well as another law, that
has so great a rehuioii to the cTiS^ bHbre you,
liwes declare, that from I hes* . of ae-
dition and tiiclion rurif eatici i.c clubs
and cabalK of discontented, uic^ui^ir j)eople,
dtaaiTectetl tolhelawsb'Jth of chiin:h undiitate,
Wasllie^rcat mi:afebicf and cnidiLsiuti (fmt W]i«?
tMrOQght upon us, and ivhich at Unifxtli brtiu|^'^lit
IB into thethstmctions of tb« ' ' ^ ,
Gentlemen, I mustt^ay hk lo yon,
tbat wbatsoevcrtlie prisoner «. x.r thinks
Dow> tliat Wcased martyr kin^: iU»arb s the list,
was by such means brought to that bovrid, qc*
nursed, murderous death and (Tud ', 1 cannot
Qftllitl«s«than so, in relation to the persom
that brought him to it, nuder the prtitence of
religion. It was the cry of I'optJiy and arbi-
tnty power, of whicJi he was no way gnilt;\%
tlkuug-b that was insinuated into the rViinds of
•iiiy fieople, those ignorant souls, that wcxe
eMtly £aptrra|ed with a base 1 ye : but th:U wok
lb« I Many of yon/ ' j rm, that
m» Aigy remember ii ": ; and
many oi >iiu mfe« and eami<pi duk jmveseen
and raadlneiiisliiry of tliose times, ami hare
hien so eonTennnt with the practice of thejte
people suice, tliatyou arvabte to make ujud|^*
lacttt in the matter. Ail these sort of ibhigs
wet but pfetmces, and Mr jhcws of djingwous
■ad §edili«tis people ; that which vitis tnoit
tlMgeDoiia to\is»tthftltiiius,ttDtl |.ani apt to
fe will be s^
peop1<i come i*t ■
dition, iti>
Fnr, a rati. ;
It a^iost tiie i
' i of the citshtoTi
the Uiutiii^ any dnim in t
well known these Mr*» Hte
laction* that luit^
lh«re lo in<3F>nse
rillanic3$ cbat tjo:
us we know ; b-
UH into thnt
time^: At:
kiai^^m chain«i,
iron ; and raises ( ^
of scripture-, that were ci i
quite tar other purpof»(!s, i<>
prsf^ices, to make |»oople kih .
aootntnd, itnder pretence of ^/i
tecting the anointed of God. iiut mIm
tbcy tneun byit'^ Prrty, how did lUejc^
come t4» t)\ \: ' : ' ,
pery, whi ;
ntl luannur i»i r* iif^i^i^'ii, tnnu r n
1 1 tut? t^M that you jfrew to !
to-
Ihey cuine all Uito ofhie^ and the more <
va^nttbc ni(»re im trrrtd ; no that
t he bf (^Kio ^\xtu\ I r p ro v ide at^ I
by a seixjud >' n. trdueiiiu^ i
some sort of onler, in i^«t*
jesty (whom I pray God t^
orer IIS ; and sr» ott^lit all U'\
pray), what a uiiM-rabk condith
in ! And I may call it a sr
hvUtiT the re^urpcetion oi
U, - ..,.
SOTS of it V
were the |!i.
Gerulemen^ I
Tnv\ -i, t!):it havr i
king, have {nkvu not ice, that t
. all the tnischief hath lH<en >
Akid iliui the (i^reat iucc^ndiaries of all sorts j
boiliou wr-rp tltr^e. \'^'\\*^ took njton fli
known to you nil, that I must leave to
and tr I - ^^'. i.-i ,j|*ane^ to Ih
case, ' ■ iti!T>; ttM
ibnt t not jibet orassiist in any 1
tii ' , or that is known to her
! 1 they think; far the
M *:pon Tt one f line or aontlu
them prvtetul wbat th«y will, Aa lb at
1
941]
STATE TRIALS, 36 Charles II. l6S4.-:/or /%* Treason,
mi
t1«nan say^, he undertook to expomul, and
teach his people the koowlcdsre of the f lOrd :
the kiiowledi^ of the Lord is a very ^ooA
li-sson to he learnt, and to ho tauq^ht all pco- |
j)le; but blessed be God, we thank him for ■
it, we have chnrchmcn of as gfreat learning |
(without an V reflection upon the gentleman at |
the bar) as lie can pretend unto, and fiien as '
pious and virtuous ; and perhaps we may say I
at this time, with a little more confidence' than
ordinary, that we have as learned a clerify as I
crer was since reliipon was kno\%n within* this ;
kingdom. And, Goil be thanked, these men ;
are not only learned for then\^lves, but they \
exttt themselves for the jjood of others, for the I
satisfaction of that duty in whicli they are >
nnplovcd, by their due and constant attcn'ilancc •
npoD the worship of Go<l, in their places of •
worship, the churches, which are by law np- •
|ioiated for it: and we need nut run nito holc&i, ;
aod comers, and conventicles, and clans, to un-
derstand the word of God, and the practice of
our duty towards him, or towards mm ; br-
caasewe have churches to apply ourselves to,
where we may learn to know God, to ohcy
bin, and theni that are put in authority under
him ; which I am sure is a duty incumbrnt
npon evary preacher of the woril of God to
insist upon, and press, and ur^c. And I am
lure, wnouoever pi^eachesata conventicle, can-
not with a safe conscience preach oUidieiico to
the civil magistrate ; because, while they are
in that very preachin<r, they are actin|>^ (lis-
oMience ajgainst his laws, iii retard what they
do, is against the authority of those law s, under
which they live ; and no man ctm preach well
afifaiost that which he knows in hu own con-
adence, at the same time, he is practising him-
So that. Gentlemen, I must tell you litis is a
wonderful dangerous tliiiiti^ ; and thcrofore 1
give it as a caution to all people to l>eware liuw
tlifv break the lauK, by jjoingfto such meet-
ing^ and conventicles as these are ; fi»r it ivill
hare at the lonpf-run, one time or other, a very
dinsrerous issue. And there Ik another tliiu«^
which is wonderful danuerous too, to see what
shoals and cruuds of i>eopl(> cokiie to thcs4' :?oi1s
Qi'nieetincfs ; people of all sorts of mean tractes
aod professions. And how easy is it, if a man
bis a mind to insinuate into some kIIIv, i^^^no-
rant people, common, illiterate fellows, (hut
cm neither write nor read some of tln'ni, \ it
thereby to feel their puis**, to see whelh'-r ility
«ill swallow down such a thinpr, or such .'tp-.J- {
lenceat first 1* For they dirl not iu the l.-.te |
times bei^a with open reijeltion, and pr(\'t(.'Iiin«f I
the doctrine of deposinjy of princes, t-r hrii-.y;- j
ia^them to the block ; hut tn(*y tht d w\{\\ ^c••
veral previous ways, and as the l>:.it mih!:, ,
lod was snckcnl in, they attcm])tcd to try i'ln -
ther. Tliey applitrd themselves [iiTiUuully
to pursue the temper of their ainlitorv ; ami !
therefore we must ha*e a ijreal drul I'f cave to '
Irerent all such mischiefs as these are for the
lature, that they may pive no eonntciraiice tn
•ich, who pretend to be expositon>, but arc
VOL. X.
very ill ones of the scripture ; and t'lereby
inslil into the minds of men siieh danirerous
and lu-rnirii-us doctrines; that the snipture
may not be perverted, to give an authority t«»
Kucli desp<Taie ihings as these are; for we
have known over and over how easily peopl-j
are drawn into mischiif in this ai,'e,'cvcn by
the very same train that they were in the timo
of the late rebellion.
Now, g'cntlemen, these thingfs being pre-
mised, I would take notice to you, that th«
thinir now before you, is a question of a dif-
ferent nature from what I have now spoken of*
It is not the <]ucsiinn that you am to try, whe-
ther he preached at a conveTiticle or not ? or
whelherthedoinijf of that wliich he did in so
preachiiij;', is ai^ainsl the law or not ; but whe-
ther he did at »fiy nuf'tin*^ (especially as to the
time that is pailit ularly sjiecified) .speak words
of the same suhstaiice! to the same effeci and
intent that are coinpn*'ed in the indictment.'
Forfhouf»*ii he did preach at n conventicle, and
the-ehy did tranpfrrc^s the law : yet in rase
he did not preach to the suh^taiicp' of i^ jiju is
contals:ctl in this indictuic nt that hath been
read uiitoiou, and that I.e is accused of, he
must be acquittcfl. That I mnst dor-lmo lo
>ou iorlaw, as no doidil it must i>p ai'know-
letltfcd by me to he; tlHTelon* you :ire to
take care, upon your ccmseiiMi'.'es, t i try, and
consider whi.-theror no v«:n believe th*^e three
witnesses, that have been produced Ri»;ainKf
him. swear true, orareg-uilty of \^ilful perjury.
For,indo\niri;»ht idaiu Knglisli, they are gfuiliy
of pirjury. if he be not ijuilty of the Worifs
laid in the indictment. One of the two is cer-
tainly true; either they are gf"ihy of perjury,
or the prisoner at the bar is t^uilty oi' tiic trca
sun laid to his change ; I pray Gtuldiivet yoU
in your enquiry ; lor it is a iiue.Niion, 1 must
i.eeds ••-ay, f»f \ery •^resit dirii%-ul{y.
Gentlemen, fur tiic inti'Uti.-n of a man'»
heart] UMist tell \un i[:is tor \ji\\\ us to \\w
eoinpiiv^iitjr and ima'^iuinu;' oi tin; drath of xV.m,
kinjuc, it is not to bo di:.coveiX'd but by sonic ae
tion ; MMue wcird, or o\eri-act, there uiiyht I'C
to interpret the tecrti imai^ination of thelieart.
It is impossible to diseo\er or disirlose tlie iuui-
irinution of iiiiy nni;'s heart, except we Ik* di-
rected to that cliscovcn- by wonis or actions.
Now, jjenilemen, words tliut in tiituiselve!>
\\vi\ bear a jrorid (..(instruction, and are ^uod
words, yet coopled. with actions that are e>ii, or
otlier word*; that are evil, these very word»
may Im' i« di*covt ly of tl.e c»ii iiiiSi'Viiation that
is in a inaii's iuart. As \*> r: j.riSi myself in
a \ciy f-iuiiiiar lixuuii.l" fov tlje perpoct-, that 1
ni-uv niul.c tiiiitosas plain as i oiui. i'or that is
i:i V «lesi4ii. ;uid ouj^ht to be cveiv one's that is
cur.eernet! in &ueh a m.v.ter a:; tliis. Because
we liavc; i.:ul .seincdicourse concerninj^thelat^j
Mrvh.-il n:ariyr kinir i'lu.rUs tlic I'iiat, he uas
here brouiLihi to a shaujbies efju'otice; for 1
cannot e::il it a c<)ui t of ji;- lice, however they
called it a l.i;rh court ; and there w as a kind of
moekerv "r j».»ij:iyiitry of a tii;\l. lie was ar-
raigned* and tried fof treason, aod a new na-
K
STATE TRIALS. 36 Ciiaelbs XL l^Sl.—Triai ^ Thmai fbmwflh [
I
I
■
I
I
tiooal treofiou, oevcr yet invtriitcd aor knovTii of
Wfor^ umoug^t us, irc^oson ogaiasst liis peojilc ;
I gay, noiv and uevtr tliought ot till tbtse lun-
ch erly fello^T^ that sjjruug out of tlj<^ jshattiMc^,
crime to nut it in practice ; ercctin'j w hat iliey
called a »l^U court of justice, but v%hicli wus
truly to lie called a bigii court of injustice ; and
thea* they %vcrc to have sorwe come uud cry
J»i*»tice, juMice, justice upou tlie kiu*f. Gen-
lltmeo, justice k a ^ooa word ; but if ibat
word be usceil and suoken ks it was in that cftse^
m order to bring tlie king to his daitb, that
wbicb was g i^ood word, and if otlitTwise u^d«
had been ti proper woid e\cQ at that time ;
tliat l^^ if Applied to gooil purpose, to set the
kin«j und the aaiioo free ; yet beiii^^ applied to
tlie ill iQ^iu*^ Uiftt sucred martyr to so borrld
and bai'lKituos n dt^atb^ tbttt was plain down-
H^bt treason \ aiid I inaike no diHiculty rn the
world (nor can »ny man tbat UDflenituQds any
thiut^) that it was so by law ^ and it was an
Ovcrt-4vrt sufi3cient!y^ iudicaliug the ioLcntioD
of all [mrsons tbul were therein concerned to
put aud btijiy^tbrkin;^ to utter death and de-
jitruetion ; atid all these fclhm&tbat made use
of that ^<Hxl wonU Justice, justice, pi&iiee.
Were all imdoubtetl Iriiilor*; raukiog use of it
i^r that ill purpose.
GeiUhinen, agkin ; suppose if Mr. Cook
was a mail of luw^ lliut was sulicitor of wlmt
they calltd the commouweahb at that liiue,
solicitor to the state {I only speak ibis to e\-
luin my min<l,) if he coniei* (when ibc kin^
ad just ground to dispute the authority of
that conn of iujuslicef ilutt be was drii-^iTtd to,
and refused to pleml) and docs pray jud;:toc[it
Hl^atDst the kiiij^, as he did , nuditwj^ proved
•thb tri«l, jtidgnient aloue uu^'ht be tlicre
meant :i,s tcntliui^ to c^'^usc the kiiig» us well
%H to wnlcnc* him to dv^ulh ; yet he being theie
prayitij,^judHrinent ii^amst the kin^'. and vvhich
was afterwards at Ins [nay er so i*rofiouurcd ;
that sheweil what his upiokin of tue word he
Qscd wag at tbat titne ; and that tiiade Ijim a
traitor, and was an ovcit*act to discover his
guilt.
Why, io, grntlcioetu I am to tell yon, though
tt»ei<e are wurds that may be used iu a scriptu-
ral wjiy vti'Y well» and to lery jg^ood purpose;
yet if they lie aoplied to a» ill purpo:-je, they
may be u sutfifient indicution of a man's con>-
lia'ssin;^ and imncfinin^ the death ami de^ruc-
lion of the kii*;:^. Therefore, ^utletnen, you
ar <^ <: I. whether if iu thi» case,* he
»-! iirdsj of destroying our ene-
i; .. .lu^ to OOP principles, tliey have
I. Lon to the f Miner words ; and whe-
li _ Lie not expositors of t lie mind of
this pei-^ou, tlie privHM'r at the bar, of eom-
pa.'jirtiig' and Ima^inhi^ the death aad deslniC'
tiou ot the king'; and I do this on purpose to
TDfoind yu'i of what i» necessary to let you
inlo the i]nc$Uon,
Nou for tht: tcvtim©nj agftinBt the prisoner at
the bar y«ui Imve three witnesses. First, you
have >Iv3. 8m lib, she dues directly swear that
$he did ftie^uently, sevual tiiae^, *^o between
t
1
the 13th of July and
hear Una prisoner at it ,
coui'euticlrs or places vi nveetioi^. ^he tellf
you the particular days: J^he tell^t you a» Ut
ehe, thit she heard him the '>Oth of M '
8he heard htm anoiber time Ibo unh of.
accord injj to the \tehl of her rememl
She he ud him aj^ain the 17th of A^
14th of Anarust, the " " ' _
heard btni the luh «
cording to the hestot ui^i
both tells you the time an
heaiil him preach a t il-
that she sayB as to tV
she speaks of the lit: ^ , hi
the tlay to which the mdictment doca rrl
sindlhi!* she tlot-a ftay [Kifiitively, tliat i^^on
iTth of Auc^ustjte pruyed that he mighl
forgivenfor not pray lOLf for the kin^r; ai^d
that she would hate you to uir!
would insinuate, tliat he did oul
the king".
HosoicH [Turning to the Jury.] I made
tif the wonis of 8am neU God forbid tUtt
should cea»e to pray for him.
L. C. X Sir, you must not talk to the
now ; 1 urn direclingof theui«
Rotrttr/l, My lord, 1 beg \onr pardoii|
\vi%ii to set the tuatter right. \i %vus mia-j
prehende^l*
L. L\ J All this is antecedent to Uie
for uhich he is accuaed j and you gee li^
swer to it, from a text ofscriptmi! that 1
to you. which he did not rc^pt at with dit
pray for the king ; but tbat he thought tl
dutV always sa to do.
'then £he 1(1 h you pnrtkcutarly :
time,, which. I think, wii8 at the ho
FanlShed, I caiuiot particularly ten oj
the name, there was a talk of the R
and of the lord mayor of the city of
but that was before'this f nne. And aJ
the first and Uie second witneas, two
more, give you an accnunt though thi
ne\cr there but then : That he began
about the tire, and tliat he should say th<
gr«at man at the coiner of Grace-i
streetf 1 need nut name his name, for yoti
know him very welt ; that he met with a
man, though mdeed he was not a p<H
was n bibuuring man, a carpenter ;
U'gan to talk much concerning the lnt\ aiui
did iiay, that in cuse it had not lieen lor
trej*t man, there had been no ?; '
rein London ; nor if it had i
lord may ors and sheriftk after u . , .
been no ;»uch thing as the 6re in Scuiihwi
andUupping, And I take notice t<; i ili 4
tlie same place, which was Shed*s I
they spoke of, there is Mrs. Fsn«
uhiun diei-e is not the least objection that i
hear oi" ; She agree* both in the circumi
of place and time, and of the words?, and to
diiiloi^ue about Grace- church -street, «nJ
carpenter, aod to the previous words, thai
Avas not a poor man, and the like, and nl
the discouTsa rcUtuig to Uie tires of Lobi
f(5] STATE TRIALS 96 Cn arlbs il. 1 684.— >r High JVeasm.
\2i6
mm HM ivooni ; wiiicn ail tne uiree witne
te jon have beanl, sjieak to ; thoagfh
WMof what I mentioned before, vias anol
tee; And this is at the hou«e of one c
y andWapping, and likewise relat-
ii|ta the lord mayora, and aldermen, and
aerifi; these discourses were at that time.
Giiilluueii, the next testimony you have, is
irthetewitiie9sestbatspeakof the time that
ilia the record ; which all the three witnesses
tlic
another
^ _ jne cap-
Iriilluiiel ; one says, captain Daniel Weldy.
Btf thai it was a captain that was then at sea,
■ ibiB ; for this gentleman bimsdf, Mr. Rose-
vol, does not deny that this \ras at capt.
MlA hoiue ; and that he did pray for him,
■Mv then at aea, and tor all his family ;
■i slftfae witnesses speak to the same time.
Thnsh indeed the first witness did say, that
A»dM not know but it migfbt be capt. Daniel
Wddy; hot she likefi'ise said, she did not di-
Mtff know hb name. But she directly swears
lille ?ery words that are mentioned m the in-
tenent. She does directly swear that Mr.
Ilftivcll preached upon the 21st of Genesis.
Sdwy as 1 remember ; though Mr. Kose-
did tbinky there was a difference between
Atcfidence of the one and tlie other woman
Ami the SOth or S 1st, yet it was only upon her
iHKBbraoce,'ns well as she could, and she
ilMt positirely swear it was in that place,
hUffWifag to the best of her remembrance.
Utkesenond witness, Mrs. Hilton, when she
Itoili swear, she said it was either tlie 20lh
#flil; lot in so many words she did directly
MBviUk he should i>reach, that the people
^ imisillnig to the king on purpose for the
»tf fte king's eiril ; but the king could
it; btit yve are they that the people
linrfi fck to for the curing of all their evils.
Wki «e the Tcry same words in substance
itt atinthe indictment.
lit fciy same words in substance, says
teitfhv,^e second witness ; the same day,
Irttinme place, did I hear Mr. Rosewell
AlMsyi these words; and they co further
M At ssme witnesses both swear, Hilton and
MA, dial Mr. Rosewell should say, we
wicked kings together who
Popery to ct»me under their
ean be compared to no other per-
pt widced Jeroboam. Mrs. Smith s.vrars
words directly, and Mrs. Hilton sa^^s,
mks there was the name of Rehulioam
hut she is sure there was mention
tvo wi^ed kings in the same words as Mrs.
Tliey go yet further, and say,
tkc one and the other of them, that he
W the people would stand to their prin-
faedidnot doubt but they should over-
tficir enemies as in ancient times with
hnnis, bndcen platters, and a stone in a
The two witnesMs, both Mrs. Smith
IS. Hilton, swear to the very words, and
•^tD the sobstance of them ; and if thcjrc
*^tesMneKttle yariancein some few of
V^jOiat win signify notliing, if the sub-
bendes these two wit-
nesses, there is a third witness, I\lrs. Farrar,
against whom (that I can see) there is not the
least exception in the world, if you n^meml>er
any, you would do well to consider of it ; you
may be better able to rccollfct what lias wen
s|K>ken or offered, than 1 can in so long a time ;
and you ought to e*)do:ivour (l>cing men of un-
derstanding, and good onality) to rHrrsh one
another's incnioi'ii*s, and malic what ol>srrva-
tionsyoucan; which 1 perct-ive you ha^e
taken*^ notes about, some of you at least.
She does directly swear as to the business of
the king's evil, the same wonls that the other
two have sworn, about (locking to the king to
cure the king's evil, which he could not do :
but they were the pncsts and prophets that
could cure the maladies of the people. And
as to the second words, she swears that ha
said, there had been two wicked kings that
had suffered popery to come in under their
noses. And sne swears in the third place, that
there was likewise an exhortation to stand to
tlieir principles, and that they should over-
come their enemies. She does'not indeed par-
ticularly tell yon about rams-horns, and the
platters, and the stone in the sling, but only of
standing to their principles, and overcoming
their enemies: Wiiichl would have you par-
ticularly to take notice of, it being the material
part of the indictment to make these words
treason.
Now, gentlemen, give me leave to tell you,
there is a great regard, and very great, to be
had to the circumstances in this case, to see
how far these things are to be tacked together.
First, you rememmsr the witnesses wen' exa-
mined*aprt ; and it does not appear that they
have talked together; and there was all the
care taken that possibly could be, they should
be out of the couil and out of one another's
hearing ; so that there was as much endea-
vour to detect the falshood of their testimony
(if it could be) as possible in any case, ercn in
the very most minute circuinstance. Mrs.
Smith swears, that Mrs. Hilton came to her
house on Saturday night ; that they went to-
gether to the house of this capt. Daniel upon
the 11th, about seven of the clock ; that they
were there before Mr. Rosewell catne in ; that
there was a lower room in t}iehont>e ; and a little
higher thei*c was a little room ; and then tliere
was a room up two pair of stairs, where them
was a bed ; that Mr. Uoscwell stocnl upon tlie
stairs, but they both sat upon the IkhI, together
with one of 'Mr. Rosewell's own witnesiies,
which was the mathematical instrument-
maker, and that he was in a mourning- rioke ;
and that there was particular iiotifre taken of a
pair of shoes given by Airs. Smith from under
the bed to tlie child of tliat mathematical in-
strument-maker ; and that there was nrayer
made tor capt. Daniel, the master of the house,
who was then at sea, and for his child and fa-
mily. There were these circumstances, every
one particularly asked of the witnesses, and
sworn to by them in the very same wonis, the
same manner cd* posture, tbs same thuigs done
247J STATE TRIALS, S6 Charles II. l684 — Trial of Thonm Rosewell, [2i&
huth as to the rnoiu, the bot], who sat upon the
hi'd, tlif moiirnin)^ doke; the plucking off anil
dehveriiicr of the shoes; that I may appeal to
yo.r iiirmories, it" they did not ag^rec to a little
rxiictly.
Thfcii ihcy beir*n to enquire further concrrn-
ingf ctlicr expressions of Mr, Uosewcli at other
times: SoiiU-thiii<^ aiioul people in sirarlet, and
«uiiutii:u^^ iilHiutoantiiiir: And Mrs. Smith tells
yoa thnt hedid speak something ahoutcaii I iny;
ih:a ijo was talkinq^ concerning that uoni ; says
he, I will tell you what that cantins^ means, J
\\t'ntnot joni^ a;^ thn>Uii;'h a cathedral, wlicre
the- organs aie, and there the people were ira-
tlified tui^ether ; and they were sin^^iiifif the
Isold's {irayer, and 1 tlo not know uhat 1 heard
tSu-msiiig/and I could not hut laui^ii out ; and
he hrukc out in hisst^-imuu into a lie ! he ! he!
tlur i- eantinu'. This, they su> , was his e.v>
pivsMun at that time.
V> lull .Ui's. Hilton came in, she tells you
the very same words, even to a very particular
phrase, which I iiad forj^^ot before, that he saw
the men in white gowns thatwerc sini^ing-, und
which he counted canting-. It is very true,
tiiere is no such thinj^ mentioned in this indict-
ra<enc ; hut only it is offered hy the kin>j;*s coun-
srl to shew the temper of the man, and how he
usually used to preach.
As t'oncerning the story of Sampson and
Dalilah, that is sworn by hoth wiMiessi-s, that
Uiere was such a discourse ; for he began to
talk of our king's keeping of women, and lie
hoped they would hring the same destruction
ii|H)n him that they lirought upon Sampson ; he
)iu|)ed it wouhl so fall out with our king. How
far it is true (they both havhig sworn it) you t
arc the judges ; they have din-ctly sworn it,
and to all the circumstances huth of time and
place.
(ientlemen. There is yet another thing that
is material tcM>, though a small minute eirrum-
stance, and that is about this same iViul Shfd,
that they lvi>e spoken of. When the first wit-
ness caiiie ill, he chid her f<ir coming in her
pattins, and bid her pull otf her paitins, ibr
tliey wiaild It-avt^ >ueh :in inijiression there,
that people would he apt In discover that there
was, or would he a nici iin;; ; und therefore
vhc promised, when she caiiu' any moi*e, that
she wouhl he suiv to leave oif her patiiiis. And
il hi proved, that INIrs. Iiiil in and 3li's. Smilh
were in ihe room abo\e, and Mrs. Tarn^rwas
ia tlie r.)om he low, and it d(K:.>> not ap|M>ar that
hhc was actpiainted with tii;.* rest. She had
heard hiui several iimcs. and tiioiigh .she did
not see him thai day, he hting up two pair of
btaii-s hi;;her, yet she sv\ears directly to the
6aine words, the substantial part of them that
Iheother two witnesses spoke of. So that I
Must say, if in case they have contrived this
story to lake away the hfe of the prisoner at ihe
bar, tb.ey h:i\e contrived it with all the dcivil-
i;4iest subLliy that ever any could do, or that
I'ould enter into the minds of any neople. You
are the judges of the fact, 1 pray God to direct
^ tfUi that you umy detect the truth ; Tar bo it
from the Court, or any body, to desire that -
any thing but truth should |ircvail ; fur it were
far l)etter a thousand times that a handred
guilty men shouhl 'esca^ie, than one innocent
man should sufler. But on the other side, far
be it fn»m any man, that is u^Kin his oath to
t\o his duty between the king and the subject,
to he moved hy compassion, or any things of
that nature, to do agamst the evidence thatia
given in ojien court ; unless he lie satisfied that
tlie evidence is falst;. For in this case I say
again, either you niust fnid the prisoner guilty
of what he stands charged with in the indict«
inent ; or else you must fmd these three wit-
nesses guilty of wilful |)erjury : and I pray
Ciod again to direct you what you are to «M
in it.
Gentlemen, as to the testimony that has been
offered on the behalf of the prisoner (I would
follow the same method that has been taken,
both in the evidence given by the king and
the prisoner, as near as we can) : first, yon
have had brought by him half a dozen (for I
would not injure him as near as 1 could om
tittle) that have given you an acc4)unt of « hat
he said at that time.^ There was HudsoUt
Hall, Atkinson, Smith, Hales, and Wharton ;
I took their names, as near as I could ; and ill
these people do directly say, they were preient
nt that time, and they heard nothing spoken of
the late blessetl martyr king (?.harles the finl,
or of reflection upon* the government ; but all
that was said of the king's majesty, that ninr
is, was in his prayer, wherein he did pray for
him ; that they heanl nothing come from Ur.
Rosewell concerning the king's evil in the
maimer that the witnesses speak of ; but whal
was spoken, was spoken of an<ither kiog*, in
relation to Abimclech king of Kgypt. and not-
relating any way to the disease they <&llcomr
monly amongsl'us the king's evil. It istntTy
one <»f them does say, (which is a word thai
has obtained very mucli anmngst some sort if
pciple), that when he prayed for the kingi hn
prayed for his deliverance from evil com*
sellors : and under thes(> woi*ds, evil ooui*
M'llors, and deliverance from them, we knoir
what lM,M:amc of that so oUen mentioned princt
now, king (.*harles the lirst. Under that prt*
fence they would remove all his friends troM
him ; and when he was letl ahme, they could
ciLsiiy do what thc-y plc:usetl with him. Manji
with pretence of great pitv and zeal tor tM
king, cry out, that all that tliey complain of^ i| •
not «>f vihat the king docs ; him they think la
l>e a wonderful guod man ; it is not he, butUi
evil counselhns, that they it-tlet t U|hid ; and
so we must ii,:;ht against these cv il couusetlon^
and when vtx' have laid them iLside, and h«
elands alone, then it will lie easy to ser%e hitt
as they did his father. Whatsoever the pre*
tensions of such words are, we know what th|(
designs oi'the [Hopie, that made thu same liri^'<
tence heretofore, came to; and I pray uodl|^
that there are not the same designs on fbit
still ; nay, that that wa.s not the design of tkii
prayer of tlie prisoner at the bar.
S19] STATE TRIALS, 36 Charles IT. i684.~/or High Treason.
[250
Gentlemen, tbey give yon a particular ac-
connthnw he preacnecl upon the SOth of Ge-
nnis ; and they speak as to the 2cl anil 7th
Tciws of that chapter, and what discourse he
InkI upon them. Bnt truly, it is pi'etty strangle
(as >lr. RuaetvcU himself objecteii even to you
ortliejury very well), can any one of you re-
nipmber so exactly the words that were spoken
u these witnessea have sworn ? And truly he
IKite a very material question : hut then the
qa.^ion turns the other way ; how come all
yonr witnesses to give such an exact account ;
ttil except the second man, wliu intleed did
itimnut a blundei* or two, your six witnesses,
«tn to the texts of Scripture, to" the vory
phrases that were useiJ, particularly to the
woni tremendous ? They arc all as exact its
(30 he. It is strange that five poopje slinuld
■jfree in all the circumstances ; but why should
it not be as much helievahle that throe should
hare as exact a memory as the other five ?
Nay, and I will tell you, what is prett}' stranu^
tool that theiie people must hear, andremeinl^r
just what was said upon the I4th of Septcndter ;
but that which was said upon the text the time
before or atler, that they cannot s(» well re-
member. It is plain, they have Ikm^h dialopie-
io; with one another; and it is plain, that
luoe people can neither write or rcail, nor re-
member, DUt how they shall be sure to serve
the present purpose. 'That seems to carry an
objection in it on the other sitle, as the kmg's
cwDsel say ; and it seems the more reasonable
OD oor side, why they should remember so ex-
actly, as the}' have sworn ; because (say they)
I tluti dav, wfien we come home, we cullcil lor
I pea, ink, and paper, and set down these words.
\ the substance of which we have now hero
suoru : so that that does shew you we had
nason to remember, what we have testiticd
agaiast this person. But what is yet ifreatcr
tbao all this, it cannot be imagined (sviy the
iiio^'ft counsel) that the prisoner's witncs<«rs
are so much to be believed, since they ii^ive no
account of what was spoken at any tiiiic ticfore,
DOT any time since.
Ttieu, gentlemen, there is another reason,
Bvs Mrs. 8niith, I came on purpose to see who
V'as at the conventicle ; though 1 had \iccn at
iereral conventicles before, yet I never heard
meh wonls spoken. Says3irs. Ifiltdn, I v.as
^lad to be gone ; and teils you of her uuwil-
lincfness to btay there, having never he.'U'd such
vuids spfjken a^^ainst the govcnnnrnt before ;
>rjt therefore she set them down imuiediatuly
t^w)i)ii as they came home ; and lliey wmt to-
^Miier to the Bull and Mouth, the Quakers
DKilins^near AIdersgat«? nHcrwards ; and thut
lliatilay, or the day following, they Mcnt to
Mr. liecorder, and gave him an account of
»hat had past in their knowledge. This is the
tQsvverthat isgi\euby them to what the pri-
snr.tr's witne<$sc!; s;iy : hut you are to weigh
this testimony of bcith sides. For I must tell
you, {VfuLh inVn, though these witnesses, that
^ \w tiic prisoner, are not upon tluMr oaths,
}it ihey are as much under the obligation of
giving true testimony, as they can be by law ;
and you ought to have regard to their tes-
timony, how fur it is consistent with reason and
with truth. S4nne things they differe<l in ;
some things they heard in another manner ;
wheihcr \ I iu may believe such things may slip
out of tlieir memories, or how tliat is, you
are to consider of it. This, gentlemen, is "the
first part of the evidence that the prisoner hath
given for himsi'If.
Next, gentlemen, there is another part of the
evideiiCK, and that is fnim the fifteen witnesses,
one Mr. Jollifi', captain <^otton, Mr. Fipps^
Mr. Veering, l\Ir ilitehr«»ck, Mr. Hinman,
Mr. Wanly, Mr Strong, Mr. Cutloe, Mr. Mel-
sain, Mr.' Medhani, Mr. Winnacott, Anne
Broadliiirst, Ann<* Mnuning, Isabella I>icke-
son ; all these were called to his reputation ns
to his behaviour and conversation towards tlie
government. They tell you they have known
him a long time. "^It seems they frequented
the hearing uf him sometimes, when there was
an indulgence and a di«pensatum for such
meetings, then they went to hear him, and
then he used to pray tor the king ; and it has
i>een oljserved, that^ it may be, meeting with
favour and kindness from the king and govern-
ment, he might be very ^^ell pleased with the
kin^ at that time ; though that turned to the
prt;judiceof the govenuuent (us we all know^.
hut whether his cou)pk-\ion altered towards
thi' govtMiiiiient, when it was thought fit to
restrain that iudulgenee, that ynu have to con-
sider. They say, they know nothing of harm
by him, and'that mav'be true ; no moi-c do 1 ;
ami I presume you do not ; il you do, you will
t( 11 us. >'('U and 1, pray Ciod we had never
lit^ard of any thing t>f harm come from him,
with relation to the king and government; but
you have heard what has been testiiied by
these* witnesst's.
Th(>n there came two wime^sses, that lived at
sir K^Iward llun<rerford's when the prisoner at
the bar lived there; ; one <»i' thi'Ui iivcti ten years
theiv, the other four. And ihey give you an
account, how he was usenl to pray (not accord-
ing to the; Common l^i-ayer) but he used to go
to chun'h, and he did prny for the king very
farneslly, an«l heartily, as they say ; he came
there in*thi« year Itio'l, and he'coutinued there
seven years,*uud they always lookeil upon him
to hir well-inelined to the government.
I'liHi yuu have an account of three servants
that liveil in the house ; one hved four years
with him, and that she frequently beard him
pniy for the king (for I would not willingly
forget a word that should make for the pri-
: son. r's advantag(r), she siiid he prayed as ear-
nestly for the kuig as lor his own sold, with
as nuich zeal and eariiestnt^ss as he could do ;
tikis is what she says And the second lived
with him three years, and she does remark
pai'ticularly, that one time benng ill private ia
his own closet, at prayer by himself, she heard
him very earnest m praying for the king : so
thai he 'w(»uld urjje it as iinprobable, and un-
rcabonable, to beheve, that it he, in his private
I2h 1 1 STAT£ TRIALS, 36 Cif ARLBS II. 1684.— 7riW of TkomMi Roaeweii, [
not but that, for any things yet nppmrs,
woniatj, that is here Imiught as a wit
Acainst Mr. Rnseweli, did »wpar true, ihat
o3ier woman did confess to her, that there
sach a conventicle ; they indeed have en
vonred to eriiice there was no such con
tide. 1 must leave it to you ; for nothing
pears clear of the one side, or the other.
Then, gfentlemen, as concerning brrtal
with, and about one Games; wherein you
an account |pven you by one Harrey, an
advised to give money, rather than ti
troubled ; bat they would not gire mo
Now, tor that the whole ans^ver (that il
be given together) is, that you know tha
set'utor, iu these casis, has a share out ol
penalties that are incuricfl by conventii
; and though it may be that it wm not so
, done by such iiilbrinations to compound pi
■ tits, J et it is no evil thing : lor if 1 will cfa
I to inionn, or not intbrm, there is a right h
I to a part of the [lenalty arising from the otfe
and though it be not a commendable tt
yet it is not a criminal thing lor me to i
i>ound it ; for I do not obserre that thei
prored to be a people that do use to go to
Tcnticles.
Then, Gentlemen, there issomethingtob
served conceminsi^ tlie evidence of Cartwtv
He comes and tells you, that he was by, aik
of the persons that uent along with Mrs. H
to several places, in ordiT to make convic
of persons for couveuticles ; and she n
have him swear such and such conventi
that sl^e would dictate to him ; aud she
misetl. mil! oM^red to swear fur the con«i
ul' cinivoiitidt^s, vvh«.n she was not tliere:
thi<i ^«as a tyrvat while ago ; but nobody I
a woid of ii till now. and that when Mis.H
%^us i'!i:r«>irL'ti in this prvsecution agaiiMI
Kost'vifll. Now when wc meet with this
of |»t\»|»lo, we ou^ht tu consider of the n
i}t' \\w\r t'vidtiice. It is certainly a ver^
priibubk* ihiu:r. that any penon'shoukl i
.Hid toll hr»u, I >»iil b^« -^ilty of perjury, 1
be fojNiv%inu for ynu, if vou will be furs
Km* im*. h iMu' Liaxdly1)e beiieved that
IhhIv ^hoiilif si\ 41,1 III a tellow, that you i
likolv ciu'i«\;!i to detti*t any such thing
■«h»*uUl Iv :iT hi'i jil\ jniay:e': And it had
h:Ni!':t\ ^ »'l«.- lidd Ue« Ail lionest ma:i)to
JiNivnvivd iiii"* i" d uij:^i<irate imoiedii
III.! lU ivv.'-.l i. St' as V.y^i the vitlainy si
li,i*K' ' v« ;»J!.iishcd; Ui. t lo cuiue and SC
umi inH'it ^MK-U .iiM:ii, just as this is. Andt
i»'if, -iuiliiM,.it, I Fo'^x't like *i!vh accid
WIIU.W.M-M. lii.u MXiii V ilivp '^as it were) e
\\u' K !p;ius, inj \tt,' caij iiavo no acei^untof
»H ii'if > ...I LUC lo s;ir s7uctor\ reason
It* .uiiKi* III 'fy.\ V uiukviii'sdiscoveiy.
%ou ii.t»t' -»v%«i u ... », r *4.'n!cs!«e«, that wer
J-i.-, iii.a ijov ,iMiic nx-ouut ol* her beha
III (llt'M lll.lllCIV
tt i«» I Ik- otMot^ttoii that ihev talked of,
Hi*. 1 11(1 »i .h,ly, ^tirvi^l wictiesMsgiveT
•»-»HMM.i ..| ihe uinnrr First of aU, it is
•|.|^y vi.i bv ili«i ^iiu4 tiMi i!i prtMluofsd,
family, nnd by himself, should so earnestly pray
for tfie king (which was never intended to tie.
heard by any ImhIv, and ciunr to be thus heard
by nceincnt), he sliould in pnhtie, l)efure a great
congregation, utter such witrds airainst the
king and government ns art; nrctcuded against
him. This is the use ho makes of that.
Then, gentksmen, you have likewwe aAer-
wanls, the ti^stimoiiy of those two witnesses
that have been exaniiniMl before, that is, Mr.
Atkinson and Mr. Smith ; that whereas you
seem to say, says he, I matle a great reflection
ii|K)n the late kmg, and his presi*nt majesty ;
it was so far from that, that I used to teach
upon the3(Kh of January, and then to preach
obedience to the king, and to pray fur the king,
and make 8har|i inveetives and refluctii»ns
upon those that had been (*onc(>med in that
horrid, barbarous nuirder of the tare king, of
Messed memory ; so that 1 eamiot be tliousrht
to encourage siieh things as these, when I used
to |ireaeh to my auditory such doctrine, as I
now U'\\ vou ot. This is the substance of that
ftart of tfie evitlence, as near as I can remem-
ler, anil weollet*t ; you have taken notes, gen-
tlemen, yom-selvi*^'; you will be able for to
make obsenations, ai*cortling to what notes
you have taken.
Then, genilemen, here are 18 witnesses,
that he has ealletl, to endeavour to persuade
you to a dislielief, and gain a discredit as to
the witnesses that are produired ai^inst him.
Now as to that, which was oiKreil by the first
iviUiess, How ; thut w;is but by a l:»'ar<Jiy, he
knows nothiutf of his own {xpoiili- !^'.» : I'.-V mv
bivihiT. sirTlioir.us Jri.:\.-. ho irive<; \oua*;i
a*\\>u:it of a'! ifie rjik'sti«^« , that Iu- Mas asUrd
ai»om ; ihal >l:e v.v\c:- »Iid s: v ili.:t slio v. as
1»ie>fni di ihv* onvv'iilu w. «u!l iIkxi >!!>;. i;aihv»i*
lad ivtifossi'tl It lo b»*r; an.l i!r»«Mi tbii *on-
fessiou slit' \» lis eouMiiol Nvw »4en:loMion,
it is a vei\ i!Mto\vi!tl thui^ us ilu I'^uu-r. i'mi
Mrs lkuhiH\ ii i** i»'iin, i'mnI u« I;.»^i* Ok'.^vu
m lie's, aiul she ssiiu' widow oi .i non-%vnt'orii}iM
pre ae Iter, and ilu*s uoiuaii v*;in no tar fn»in s;i\ .
m«.r, lhHt<«h4> i>;is klifie, ili.ti slu-onU ti*Mst*i-«l
uj\M It, ibai '^li>. UathxM- tniil .-iMiti-vNttl it lo
her. 5h» lik«."wiNr you l».i%*- Uvii iol«l coiuvrii
mg that bibiiiu'vk oV >lr M.i'^"^. I'lo \*t»iii%'mtcle
at hi> hoOM', *>ii ibo lolh n .lii!\ ; it n:is v»
iHr f»\WM h<*r s%%fajn:;[ ib.tt *li |l.'»% w .i* ilu-u-.
tiUt ilUiM*;i| tK' \%U% llU1lllOil«\l, \tl sliv' M IllM'il
beJoiv > ;• ti»x»r^v IHvbv u» suimi il'.ti ilio^- *».ix
any siK-it v\*tiiiniiele. or ih.il iu- \% i> ihe m v\ .
bhedid iK»t k(K»\% ihv loan, mh\ i««tiM n.*i xti\
any tbui^ to Imo Vud mv NumIu-i .l«-:t|t^t
being ivtvuK\tl »h '.i i*u-iv lu.^lii Iw » iiii.,( ikv,
that ih«*re lui'jhi tK :i«>%0( ii itnitcuiu !«• .u \|i-.
IkI!(hvN, vivnl at i.ti i-* ho «**iiKi m i«iMiV.
it; but it seems ii «%•'« |ia«i it>oii> fnui mii* lu,-
i*U*rk of ihe peuiv''^ h.i'uU . I i'a'M»»i ,.i\ mi
thing lo Ii' but il >o4i alt- vioviuU ill II ihiitt
wa:« u<»«iuch tHUivcatiek* ni uti, <«ll ih.ti i.m H«<
said, IS, thai ilu- old woman St IuhI h« i «« Ji. .ui.t
my brother Jeuiicr, ;m lit <iti .m--« «*iiiuuhIwiu«u
between them, did reMolv« tu ik» m hat hu i «*kilil
aail proinistfd to .s|H;d4 lo ih% i^lmk ^u kh«' |iv««ii*
STATE TRIALS, d6CHAlLLESlL i6B4^'-for High Treason.
[234
■ acooventidethe ISib of July, and
Hr. Hii49on*s ; but indeed it was not
•let's; aiid it is not alludg^l here by
it was so. And tor tbat other, my
saner gtt es you an account, tbat upon
ma of Miv. Bathoc there was a con-
bul there was no such conviction of
llw case, but only of Batlioe ; us ap-
ke record which hath been proiiuced.
gentlemeo, the next question is con-
le derk <^ the peace, and the writing
talk of; which makes nothing one
ke other. Then there are two wit-
!ew, ami the other man, that met witu
an, Mrs. Smith, in Grub-street, in
make a composition tor penalties
to con7entick» ; and they find out a
t used to go to conventicles, and thev
lim into a composition, and so much
IT9 iverc paid perhaps, and be ought
aid more : But it is plain, he used to
icfiticies ; and it is pretty odd that he
pwked up on a sudden there, on this
rater, to discorer these practices, at
IMlion of the prisoner at the bar, who
fh a distance on the other side of the
aen, as for Mrs. Higgenson, I
Pigr tkia, she says nothing to the pur-
ii cither material for, or against the
lar flhe aud, she knew notliing (if her
_ i ; and all that she did say, was
I mod reports, not by way of down-
'' against the person she M'as
g'nst. And, gcntk^men, you are
iAt hearsay and report is no evi-
lut itmust*be what the witnesses
' of iheir own knowledge.
pt IB a worthy gentleman, sir John
|i as to whatsoever he said, or any of
f loM him, except he knows it of bis
iMge, that is no manner of e\ idence
mk» off the credit of Mrs. Hilton,
[jhe herself did say (if it can he tc^sti-
against her. If she coiifest
I any (K'sign, or was cnj^i^jift'il in
e to Getray the vouni; lady sir John
i of, that indi'cJ hi a very evil tiling.
ever were the apprehensions uf
rning her siiare in that matter, or
m fittle thiui^ that they talked of oon-
iMtfeas Hilton, before she intermar-
m swnify but vcTy little in this mat-
i when we ask sir John Tulbot the
, Iw cannot gi%e any satifsfactory ac-
|pi| for be says plainly, he hud no con-
|..witb her. ' It see'ins it was not a
|ii wlule slie lived there for ten years
^ 9md it is pretty hard to imagine in
Bif sbe nad been such an e> il per-
wwld represent her, in that time,
Pl araeued, so far at least, as that
■ Aiiaiarged the service long be-
r John Talbot is a person that
mAI to permit any thing of ill in
Ml yd withal, he cannot know
Wk Wf vHPre than any of you, of
irregularity in the family. If indeed they had
questioned any of the servants, that were more
conversant with her, and taxed her of any
thing that was oil, tlien it had been a much
more probable exception ; but to have people's
reputations blasted barely by tittle-tattle, and
stories, ai^r persons arc ^one out of a fiekmily,
where they have lived lor many years, is a
matter of very dangerous conseijuence ; and
any man in the world may be imured in his
credit, if such a thing be permitted. What sir
John Talbot upeaks of his own knowledge, that
is evidence, and wo woidd liear it, and give all
due regard to it : But what was siioken of con-
cerning Hilton, belbrc she was married ; what
the rest of the servants said concerning her ;
or the general reputation that she had in tho
family ; that is no evidence at alL
Gentlemen, in the last place there is a wit-
ness produced, one Dillingham ; and she pre»
tends that sbe is a woman of a very ill repute*-
tion ; and tbat she would have hired her (as
she would have it believed) to have sworn
against several people. Now as to that, sho
would have done exceeding well to have made
a discovery of this before this question ; and it
had been ner duty so to do; and not now to
come, anil drop *in, just when this question
comes to be delNited before you : That, gende-
men, draws a suspicion along with it, and a
very great one : But I must leave the whole
matter to you, which 1 do not question but you
will examiue, and look into, as well as yon
can. Thus I have offered the evidence that
has been ^veu on the one side, and on Uie
other, in point of fact.
Now, gentlemen, there are some remarks
made by tlie pns<»nerat the bar (as God forbid,
but he should have the advantage of whatso^
ever can be observed upon the evidence given
against him), that is, he makes a difference
between the testimony of the one and the other
of these witnesses, about tho 'JUth or 21st
of Genesis: that the one said the 2l8t, the
other the 20ih. Now, it is to be observed, as
has been said, that she that said the 20th, which
was the second witness, Kaid it was either the
QOth or the 21st; and Mrs- Smith said it was
so to the best of her remiinibrance ; but it ap-
pears to l)e, and so I perceive, by all the wit-
nesses, ui>on the 20th ; so that as to her it
cannot be very material, because she does uot
swear jvositively cither the one or the other.
Then gentlemen, there is another tiling,
that is, that she should talk of one Weldy, cap-
tain Wcldy, or captain Daniel Weldy, when it
seems his name was not Weldy, but Ins name
was captain Daniel ; which I think can go no
great way in the ca^*. She is not acrjiiaint*
ed with the man himself; she tolls you one
part of his name right ; describes the house
mail the parts of it; and speaks of the cir-
cnmstuncc of his bcinic at sea, and l>eing prayed
for by Mr. llnscwcU ; thc^rein they do both
fiffcec : So that, though she apprehended that
his name might he. Daniel Weldy, yet it is so
far right enouyfh that it was one captain Daniel:
256] STATE TRIALS, 36 Charles II. 1 684.— Trw/ of Thomas Rosewell, [256
ani) that there is a very small minute differ-
cucc, that it will make little one way or other.
Tlien, g'entlemeii, he insists npon the differ-
ence between their evidence ahnut thai cir-
cumstanec, wiiether it was all upon one entire
subject ; or part one part ofthe day, and part
the otiier. One of them sa\ s it was not an
••nlire tliwronrse; tor that about the rams-
hoius, and the broken platters, and the stone
in a slinjf, was aflcr two o'clock, alWr the in-
' ten'al that had been, and the space of time be-
tween the disconrse of the Kinsr's evil, and
those other thing's ; and therefore, says 31 r.
Kosewell, whereas she pretends that it uus all
8|)oken at the same time, just as it is laid in the
indictment, that cannot be : and so it appi ai*s
npon liisown evidence. Now, suystliat \\ omun,
I cannot so well tell, whether it was forenoon
or aAernmm, and truly they mi{<fht call it fore-
noon, liecanse they had neither eat nor drank ;
nnd says the woman, we n-rkon that iu? i'mx'-
noon till ailer we have ilineil; and !>lie cannot
t».ll whether it was in tlin I*salins, or whrllier
it was npon the chapter ; but it was in that dis-
course that he held that day. She does trcnc.-
rally apply it to the whole; and that in the
day's discoui*se (alt uhich time she staid, till all
was over) scieh words did pass. Voii ha\c
■heard the ditference that is between the two j
.witnesses, and you did well to consider of -
it, if you think there isanv thing material in it.
Cxentlemeu, f must confess it carries a notable
soil of testimony in it, of which you are jud<i;es
and \%ill wei;>-li it acconlinsr as it oujs^ht to be
wc'L'^hid, First, That these jwojile sliouhl
liU'Kilv hit together concerninjj tlin kin:^\s evil,
and thiit there was such a discourse iu is l;iid in i
the Indictnsent about it, and of the nnmhetVs i
prayin;^fi)r the people for the cure ofthe kind's I
evifand then they should be imuKHliately healed .
AntI (>n tlie other side it is ju-etty strange (a** he I
urires for himself) that that should lu* per^eit- '
ed. uhicli he spoke conc<'iTiin&f the prophtt^s
prayinsr f"r Ihi; kinj^, antl thrreupon his hand
htinjr healed, wiierehy the prophets ha\»* the
honour (as he says) 'sometimes by i>rayer, f»f
eitrhii^ the kiug^'s evil: so that sometbin<r or
other, thi-re is in the matter, thatirives a mi<^h-
ty coi!iit«'iiance to wii:it the witnesses s]ieak.
There i-* a eertnin sort of occasion (riven (:is one
would s;iv)for sue!i expressions as they have
testified, \n his dlseoui'ses.
Then, when they come to talk concerniii«»"
the rams-horns and the platters, the witnt^ses
say, we heanl iiothinL;; coneerninjf platter*,
mueli Itrss of pewtrr platters ; no, it was
broken pitchers, and tliat was occasioned hv,
and iiad relation to a tuxt (says Mr. I^osi'well)
about Gideon, how easily he discomfited the
Philistines' army, and there was no such thifig"
as any discourse coneprning" the kin*;, or the
^vcrnment or any relatlou thereunto; it was
only a phrase ustd by me in the pulpit, to shew
how great a matter ini^rht be ilone by little
means. And so hkewise conecniing' the stone
in the sling, that being an oceasionul instance
too what great xniracles ha>e been br<>u;;ht
about by little means and circnmstances : 1
have instanced in that (says he) how Daviil
killetl Goliath with a stone out of a sling, nnrj
that our 8a^ iour Jesus Christ cured the blint]
man by a little spittle mingled with clay. So that
he u'ould insinuate, that those words that wen
spoken \\ere not with any such intention as tlu
king's counsel would make it, and as the indict
ment insinuates; but only in a common, ordinary
preachment, as inferences from such and sueii
scriptures. And whether this that be talks of!
was the discourse he held at that time ; oi
what the witnesses sjieak, mu5tt be left to you ;
they having sworn it. And this,*as I talce it,
is the substance of the evidence given by the
one and the other side.
Then, gentlemen, Mr. Rosewell put tbe
question in the moniinn^, and he seemed to in-
sist very much up(»n it in point of law, that
the dis'.'oui'ses of a madman cannot lie treason.
It is true, tliat such discourses cannot lie trc- 1-
sou, if you lake madmen in the true sense,
that the law conunoidy takes it. All iraitor«,
all knaves, and villains, ar<' somr> way, ami in
some sense, matlmcn ; for no |>ersou can act
with any roison in any such aflairs. Treason
is not to be connnitteJ upon the foundation of
rirason. TluMx-fore uj)Ou his asking of tlie
question of the witnesses, what reason there
was for him to ns4* such expressions ; I told
him, >ou did it, ac«!ording as the iDdictmcnt
says, which is drawn according to the prescripts
ofthe law, by the instigation ef the i\f\\\ ; yon
did it, not only \% ithout reason, hut against rea-
son. Jlut if t \U'. bare say hig that it \« as against
rc>ason, and that i heir fore a man m us a mad-
man, would srne the turn, them would lie no
traitor aceordiiii^ to that rule : liecaiisc every
traitor would Ih^ a madman. Every traitor is
a madman ; hut cvary madman is not a traitor.
A Uiadman m our common acceptation, is one
that is c.:!pii\atcdiii his senses, not one that id
corrupt in his will and utlections, which must
he the d(*fmition (la traitor : so that the argu-
mcut, I must tell you, is fallacious. Every
man, that is depravcMl in hih' mind and afTections,
is a madman, so as to he an enemy to the go-
vernment, or to mankind ; hut he is not such
a madman, as is commonly meant by thai
word ; one uhose winds may be mistaken,
because of some disorder in his understanding,
so as to \h* excused from the accusation oi
trrtason. Then lore u hutsoever cons«|uencc
there may be ui'ihv. thi.C;*^, 1 must tell you,al
men that talk afur this rate, that this person i:r
accused to talk in his pulpit, they are every one
traitors, ami so madmen ; for <*'ory traitor is c
madman: and if in case Mr. Kuscueil b*
guilty, he is in that sense a madman. If i -
true, in other thini^s you fmd him a man u
very notable un<lerstan.lii)^, a man of a ^er^^
threat insinuation, oiic that Ikis a gi-eat deal o
Imowlcdi^o in tlu' lor.i^ ucs, lookiil upon to li«
a very IcMiiod aud ir.tri iiioir-« man ; whu wa
thou'^ht tit to l»e a tulor Xat Sir Kflward Hun
^erfbrdVs children ; and h.ts luul very mauy
Icuined discourses, and shtwu hiiust;!!' to b« '.
Salt] STATE TRIALS^ 56 Ciiahles IT. l684.— >r High Treason.
ntn of f ery (rreat |Hirt9. Tlioiiijrli, if he be a
traitor upon thb evidence that is ^iven, lio is,
■eo nomine/ a traitor, and consequently a
■adman, for preaching and publishing sucli
iietrioe as lhi:», that nill not serve tfi ixcusc
him from his treason : but the rather, liettausc
he Bi a man of so much learningf, it aggi-avates
the treason, as it muse needs do to any body
bthe n'orld that considers it. For he iiiuier
that pretence otferingf to preach bis doctrine as
fBipel-trutli to ij^iorant people, it seems, t'.00
cr more, of all trades and persuasions, whose
hh it Has, acconliuj|r to law, to have been
then at c&urcli ; men of strcn<^h and ability of
Mf, as t}iey appear to be, for the service i)f
Ifeffovemnient ; for these people to bo <!c-
kuraed into rimtIi doctrines as these, of stand-
ia? 10 their principles a^inst the guvernuifcut,
ibraMfe learned the man is, the greater and
UKker is the crime of that man that is guilty
if it God kno^s whether that be Mr. Uose-
■iell*»case, and you that arc of the jury arc to
lrj:it: to do it under pretence of preacfiingtlie
Md is the worst way of doing it Uiat could
K taken ; tw quote scripture for rebellion adiJs
todbe crime, as it did to that of those black ^il-
hi»ibat were concerned in the murder of our
hteifrfad Ki'Vereign, who has been so often
■otiooed ; they were geaerdlly the preaehrrs
if the laie tiiues tikat contributed to that horrid
GoidemeiL. it in notoriously known to you hi
ttiuiu^ed late hellish conspiracy against his
Mid and most merciful majitstv, our so\e-
Rjip that now is (%i horn I pr^.y 6«m] long ia
f^BK^mayjs) those that had an hand in the
■tantiMi to destroy liiui.and his r(»yal brother,
nvifit&t ruariy of thcui black -coat dissen-
mii ihe church of England ; and I cannot
■/ 1 luMw any one mcniber of the church of
bflaad that had any band in it at all. How
■ttv of them stand now (x>uvicted by outlawry
ftr that bUiody treasiiU, I won't say all parsons,
hi gfner^lly all of them diss<>nters ; and we
hmm these are th(»se l>ase, pn»digate viilnhis,
a%s uiaile ii^c of in these base sinks of re-
\ntl tliev are the common sewers of
, tlie9:c coijvi'ntii'K's are, and of treason
cf*nspiracy ag:ii:ist the government in
rh and s.ate. (jod be praisHt, we h:i\e a
a on tliat teaehr.s us niuch b;'ttf r, a religion
UUied hy the hi\«s of the land, and \\itli
tetdectrncy of uorship, and care of t!:*? soiils
if tteii, that !nav bring us all to heav( n, h\
Acjf.aceof fioii, ifwc please to her.rlun To
Aedictatf-'i < f ir, and to mind \thnt is injoined
Mb«ur du*v hy the law ; hut when peoolcj are
MBedehi.Ud by the insinuation (d* such f:d.s(>
Inehers ami run into faction and diseonlcn^,
kithe\ wiU ^tjf,u rnu into relicllion too. Ami 1
ytakthis, tb'- raiher to deter and j^ivc w::r:»-
Iflo oth«T peopif, to have a cnro how they
IMm sear «uch plaics, and sueh pnictices,
llBto afiec't you.
n, here you have hail three wit-
czandbcd against the prisoner, who
I Mcnsed for a crim* of bigh-trcason. 1
[258
nmst confess, I have taken up a great deal ol
the time; and a great deal of the time was
taken up before ; but there is no time too long,
wherein a question of so mighty moment us
this is, is to be decided : the government, thk
preservation of our king, the preservation
of our religion, the preser\ation of our laws,
are all concerned : for by the destruction
of our king, and of our govermcnt, our re-
ligion, and all that is neur and dear to ns
in the world, will run a great bastard, if not
come to a total destnietion ; and I am sure
it did come near to it in a former time, by
thi.s very suil of way. Tiierefore I injuin
you, in t'ic presence of the Aimif;hty t«od, let
neither di- nittasurf, nor any soit of personal
imimositvj in any tlung. Hint has been contract-
e<l by hearsay irom abroral, nor any imngina-
lions that have lieeu suggesied here without
proof, any way direet you" in the consideration
of this cause against the nrisoncr at the bar.
Hut go accdrdlng to the evidence that has lK*en
here before you, en the one side and on the
other side. For as on the one side you arc
not to be corrupted by common talk, or any
prejudice against a portj or a faction ; so ai"e
you u(/t to be inlsicd by any affirmation, or
rcHeetion, or com.jient that the prisoner has
made or said for himself, other than what is
supported by the testimony of these witnesses
thai he La] ;;i*oduecd, an** A^ liuse evidence is
left lo you to consider : for you must not be
led by any circumstances, or by discourses,
but what is sworn on the one side for the king,
or testitieil on the other for the prisoner. And
theret()re I can with all frei dom and zeal for the
government, and all tine compassion to the
prisoner at the bar (whom with ail ni}' soul I
am sorry to see accused, or indeed any man,
of s'ueh a criuh") leave this matter entirely n[ion
the evidence that has been givi-n. And tfiougli,
I say, 1 am sorry to see him accused ; yet
such transgressioils arc aggravateil now, when
u«* live in" an age, wherein we ha\e all peace
and plenty, while tho rest of our neighbourii
are \^ allowing in their bltMid round ahont us ;
son\e Me hav<! hrtird o\\ are brought to the ne-
cessity' of calinjx tlu» most fi'aijy and basest
animals, that never was designed for the food
of m:in ; 1 say ^^heii all our neighbours arc
giJ.jiMing under thi' miseries of war (blessed be
(io»!\ ue live and sleep i\\m \\\ under our own
\in(s ; v.r <-i)oy the b<nefii <d'hi'ing subjects t«»
a gr?.<-i()u>. king; we enjoy the full e\tf nl of
our l.iur, \\]ii<;li are surli'ient to stfin-c* our
libcrtirs and [»roj)ertie:; ; ?T»d no man cjui Iw
l-roeyiit (no, in»t rne ni' {Uv. uH-anest sul.jt»i'ls
ilu" king liiis; to Mi.ieh an miMnuly md, ln!l hy
tlie tmi' ujttliods (djuMiec
lie is lo he trail by \on, i;rntlenien, ^ho
are gent Uiuen tjl^jualily of !?•!• louiity ^I'tre
the fact is alledgr d to l«- t.mujittrd; against
whom he mioht hn\<' madr- hi-. ei»allenges aiuf
exceptions, W he hiul :.nv n*a>o!i, as he di«|
ag:iinst the others, are .n!iug to the libert\ the
law allows him, without any reason. Si> thai
you staud indiUbruU between the king and the
S
iB0} STATE TlllALS, BG Chahlrs if. 1684.— TriflU/ JhmaM R&saffeU,
I
I
ndisouor at the bar, to try tills niusi% whrther
he be tfuJlty, or not guilty of the treuson uf
^bit b he sfantlti accused. In case the late its-
lentJed rebi-llionfi ami iusurrections had tiiken
ll» '1 cftect, accoidiii^lo ifu* dottrme
JM these stTnions, of sUuulmcf li> jirn-
f': ,■,-;... . ." ,. ' ,: ^.
«^m' one of iheni might le nctunUy tTigaged)»
1 snv, ill cn«e sucli a ihiijg hud Wen, U»ere
had teen nothing but eutlmg; of ihrtmtij ; there
hjid heen nojisstice for any sohjcet ro have e4-
necte<l ; nn methods, or pn>ceedin|j^ ot laiv ;
but destruction would have come upon tis like
«n annrd mau.
Therufure, gentlemen, as the evidence ba^
licen lotiL', so I horn? ynn will g;ivc me your
pardon, that I h.'ive been tlie longer in insisting
ttpon it ; and, according to my beflt understand-
tD|t and memor\\ 1 have g-iven vou the best
Hecount I can, both of the evidence for and
oguiust the [imontr. You nw judges of the
ffi^* ""^' ' V fiod direct}' on, and ifiiideyou
i»' lices, that the truth may be
di. - L.^ i :^ ,!;urverd»cl»
HjoscwcIL lilay a loyal subject speak, my
lord ?
L, C. J, No, Mr* Kotewdl ; after the Jury
art* cliar*ri«d by Ute court yuu arc* not to say
any thing, l^v*ear au olfic«?i' to keep the Jury.
[VVbich u as done,]
'i'ben tlip Jury withdrew into the usual njom
far such j>urfK>sca, to consider of tbdr Verdict ;
and afU'rH'Hrds they returned into court.
CVitA of Uh- Crown. Crier, take the appear-
ance of ifiejury.
Crkr. Sir George Sheers.
Sir OtiWMC Sham. Here.
Crier. Vous aveic Sir George Sheen, 3tc,
fAnd »o of the rest.
«yCr, GentlemeQ, are you agreed in
ymir Verdict ?
Jury, Yes,
Ci. flfCr, Who shall say for you ?
Juri/. Our ForemutK
Ci\t'Cr. Thonjas llose^^ell, bob! up thine
hand, [Which be did*] Y'ou i»f ih** jury,
look upon the prisoner. How sny you ^ Is be
Cuilly of I he uit^h- treason whereof be stands
htdirtiNl, or \n\, Uuiliy ?
IWrmun. Guilty*
VL of'Cr What gtuxk or ehattetji, lands or
Unementft, btid he at the time of the bi^b-
tri'tiMtri ( uiiiii.int d| or at any time ciince, to
I 'AL\ that we know of.
Mot, ibt'O iliv Lord liave tnercy upon the
jury ! My lord, I huintilj rec]Ue*it this favoui »
lb HI ibcy may be aske^l icparatim^ wbetlier
tbev he all rd'fhe Mame opinion*
/*. C\ J. That i» never dorie> Mr. Hosewell,
uoUhm ihiin< \h* unv dilferonccT suggfcsted from
tnl to tliem tlieinselves ;
4$t 1 Urti V iicai a umny timci iJlc j>iry gt by
the major part ; and I VfoM kli9«^
ihty be all of that opinion* Therefore
they may be asked that question*
t. C. J, You umsi be eootented* Mr
well; in case there neie any dttft-
i»liouhl hi-ar of it from ainoiiq'st tb
CLofCr, T 1 V ^
the court has f
Itosewfll in t/n.Hv «it n**
be Jjtunds inilictetl ; but i'
chattels-, Urids or U'neui<
b)j(rh-ttea$ioii LMitnmitteit^ ^cc,
ymtr knowledge, and so \ - ^ ;
Omnet. Ves-
C7, of' Cr* Gcnlletnen, the ooari -
you.
L. C. X Marshal, you mu'*t take liiin
your custody, Wing now ' i
ifjw, Mv lord, I wout'i jeg', fw
jur> ' ■ :i luselves, thai Itiai ipiestiow
ben- ji.
L, I, . 7 \\ r uiu«(t not induing any it
tiouiS* It is not iisuh]. Yon miiv ask Ibem,
you plea*ic ; see wbt**' -^ *^'"* *vill
We nuisit (JO «cc<irdi i jrms of
Roi. Then, my Im^., ,. ; ui«--;t ot-nt]
estates wer* joined in one, In f
conditions with that man of th>
possess the wbole«
L* C. J. Mr. Roscvrell, ^e mvisi h$,Pt
reflection* upon the jnry.
Then the pnsoncr wa<t tnketi i^aVt tli4 I!
court broke up.
Die Lnme 24 Nov, lOa^i, B. lU^/i.
DOMlNt.S UliV V, ROSEWELL.
Til is day Mr HosewcH beiag brought up
the court, to receive sentence, tlie isoiift
ceeded as follo\rs ;
X, C. J. Brother Jenuer» bare ytm m
tiling to move ?
Scij. Jenntr, My lord, wc wait uuon
prisoner at the bar, lo desire jud^men
conriction that wa!S here the otbi.i
'tifason.
A^'ainst the prisoner ftt the tnr
you mean :
Serf . Jm n tr. Yes, Sir .
L, C* J- Then call him to bl-j ju<
CV. of^ Cr, Tlnjmas Rnsewell, bo!
hand. [ W bich he did ] Tliou hast
dieted tor big'h- treason^ in compasfttn^
iuiBgining the deoth of the king', and thi
verAioti of the i;overnment r Upon tin
dictment thou hast been arraiofned : V\ *
arrarpnneut thou hast pleaded Not
And tor thy trial thou hast put thyself
God and thy countn^ ; which country
found thee O'^uilty . Wliat hast thou to sa^
thyself, wherefore judgment should not
(fiven a'^ainst thee, to die accordiii}?: to the biir
[Then ne wa* made to kneel and rise a|
Roii'ucif, My lord, I humbly
that your lordship will not give
Jig^ainst me upon this indictment, o
thv circumstanocs of it, I bti?e, niy li
ht^'trfasi
L. C. J.
M]
STATE TRIAIA 36 Chables 1L l6S4,— >r High Treaim
I id tliU bdoour^Me court, in the presence
-'•-*• *^ '♦ ftrp scare Kev of tiearfSf my
4" ; tut I baTe been found
li^ .. II \vlu>m lUe Lord have
I : iny detestation anil
, II in my Tery soul \
W I do humbly bf'^; your lord&hip and the
^ttrt to com|]aisioiiate'tny preHont condition ;
^^'*tlj biiinbie snbmissron to your lordsluiit 1
enter iotn my disrx>ur3« unon that
taesds ; for 1 would be M\ taken thus^
gttt io this convietion to deny the thesis,
■ was guilty of spesikine Biich words
in the indictment. Bui U(M>n the
-1 r nz that 1 ivere g'uilty, I
tliAt these wordfi, as they
vt lai^., * IVeaiion. They are very
Cnlob mod ugly vrords; and nmy be a very
DisdciDeftnour inlaw (if true, whicli still
i over and over again insist upoo)» but
not treason. And I lieg your lord-
tio oie the fuvour to let the Indict-
* re«d once more,
J. Ay* with all nny heart.
Rot, I huinbJy tUank ^our lordship i I de-
t »ay be read in Latin.
. C. J. Ucad it to him in Lutin*
' t$, Juratorc^pro Domino Uege suptT
encam suutn pr;r8entaQt, SfC,
[Tbc wb^le Indictment was read]
Btfv* 1 humbly thank your lordship. There
DC things that 1 shall ofler to your lord-
iKiTes^ of judgment out of this indiet-
ii\A I request your lordship to bear me
K Ing hert' fur my liie. I pray
lie arrested for theie causes;
rnot any crime !»ufficiently set forth
Jftbip to ^?e judgment upon, My
Jgliy take it fur y;rantedf that in all
I oi treaiion there mu»t be some par-
r of treason ussig^ned ; uud that it
cient tadjctnient in j|p^neraT» that a
intend to depose the kinjj, or to raise
liun, n ith out some Overt- act poMtii^ely wi-
] to b*' linnrhv that person ; the jfeuenil
IfcittioQ 1: ai) iudu cement to the
1 I luattepi that set forth the
r LretiiH»tK are tl»o«e that mnke
, upon which the court and tJi«
piooeed. ^o\i\ my lord, if that
er^ timt b altedged, lie ins^ufScIent,
nhie submission, thoug'h there be
ny such sorts of facts proved, and
jury, the party i^nuot be con-
rfreasoD : For,' in this case the
I same adtrantagc to except iigolnst
B particuliirs alledged^ to prove the jfcneral
fffci^c««..ri tFV-ncon, 851 acainst the gneneral trea-
in II' \ with humble submission, my
hrt^ V- \\ that the matter here sug-
. as will evidently anpcar
yfafli i ii !o offer to your lordship,
ftn4 utjii pruiei pal objection that I have,
i«t the inuueudos, which are so many,
^mr$os^,in these words that are allcdged
Hl^ar
against me. These inuuendos, my lord, I say,
are nought and void ; aud t presume that it
will be allowed to mc, upon reading of the
words by themselves, as had and as foolish as
ibey are. >V^ithout these iimuendos there
could nothing be made out of such words as
these are, neither trt^ason* nor any thing else.
Then, my lord, in the second place» laying
asitlc the innuendos^ I muiit insist upon the re-
pugnancy and instMisibility of the words laid in
the indictment, being in Latin » and such Lahn«
as I believe your lordsViip never saw ; au^
upon these two points, 1 de.sire that judgment
may be arrested, and I humbly pray counsel
may be Assigned uie to make them out m bet*
lerTonn,
L> C. X What say you to it, brother Jenncr,
and the king's couosef?
Serj. Jtrrtwer. 1 cannot see that he has al-
ledgedany objection, which hei-e requires an
answer from any of us, that are of counsel for
the hing.
L,C. J. Yes, brother ; raethinks h« does.
Att. Gen, Ifhe docs pretend to object against
any of the overt -acts alletlged in the indict*
ment ; 3'our lordship observes, this indictment
is upon the statute of the 13tli of this king,
wherein words are made treason, if they in-
tend any hurt or imprisonment to the king-s
t»erson. For his objection as to the hmuendos,
ic dues not assigu wherein they are repugnant,
or insufficient, lie does a«isign in particular,
indeed^ th lit it is insuflicient, being a general
crime ; which yet he does not say is not suffi-
ciently laid ; for it is said, that he did compass
and imagine the death and destruction of tlte
king : And, to eifect that compassing and ima*
giuatiopt he did speak such and such words,
which by the statute are made treasou if they
tend fo attempt, by preaching or writing, any
imprLsoumenc or harm to the king's person.
Then for him to come to talk of, ' standing to
* their principles,* after he had spoken of * two
* wicked kings together,^ meaumg the laie
king,andthe present, and that, ' then weshould
'overcome our eotunes,* what is that but
preaching in order to raise a reheUiou and in-
surrection, tending to the destruction of the
king, and his government ? All this is laid in
the indictment ; the jury iind it spoken ma-
hciouslvt and with such an intention as we
have hud ; and therefore we think that it is suf*
licient.
L, C\ J, Uut, if I take the gentleman right
(for 1 tell you befomhand justice must be done
to all people im partial! Yi the crime is a very
great cnme that he s»tuiids uccu^d of; and
the jury have found him guilty of ilie crime
laid in the indictment: But, if I take him
artg^ht] he does not say that wonis are not
sumcient to create a treason, but the words
here, as they are laid in this indictment, are
pot sufficient : And as I take it, there is no
great dilHculty in the matter ; but the wonia
would have been sutlicienl to have supported
the accusation, if they be well laid. But the
f^uesttoti is, whether the wordt» that you have
SS] STATE TRI ALS» Sff Charles 11, ifiSi.— ThW of Thomas Rmwir, [S
bid here, be so po^ lively a65rine4l to hare been
okeii bj the prisoner and to rcbfe to tlic j(o-
nimtfnt, ns tUey ought to be in un indicitricnt
li%b ti-easoii f
Att.Gcn. That the inilictmeiit rou&t make
Pill ; aud the jury have ibuud him ^liJty, ac-
li^rdiuif tn tht^ iiiJictnient.
X. C X But that b his objection, they arc
[jiot soin the indictment.
AU. Gen. My h»rd» they are laid as the
ritnesses swort; Iheai : as your lordiihip can-
Hoi but remeraber.
L. C. /, That they are net positively af-
Brmed, but only tiDedgeH under an innuendo;
liat is, he s[»okesuch and such \%ordii, whereby
be compared Uic king* t<» Jeioltoam, and tlic
lllke ; and we had two w ickcd kingia tojycther,
|bl3t if we would stand to out principles, wo
ibould overcome our enenutii, innuendo the
lu^, 'i'he alletlging erf the w orJs spoken
I in the indictin<mt vh positive, if tliere be bofli-
[c)ent matter in the words to make them ap-
I Bihcabte lo the government, so as to make it
llreasiQn. Bm if you #>nlv *ay, he spoke I hem
t^tmtendo «(0 and sa, ihat itj not pL>siiive enougii
To make the indictment good. 1 take it lue
Bbjeetion rims ifiut way.
Urn, My lord» I hmnMy thank your lord -
^^brii tin* exiifaining- mv niraninir : it is so;
/„ L\ J. ^ In T .. e.is«^, tf yon
ay the dffcno.r nd such words,
"ymi do not hi> u , p them of tht
plamtifi; in7iuni<f(\ ;ifl; in repent-
^ 0 rdfs vvt> n ' I * . V . . . - , i t re , i i y o u had
|ht it in the tndtt'tment, that having dis*
fe oi thr itttc king and this king", he had
ti^cii ih<"HO words?, • We ha?e now had two
r* wicked kir.^s, &c.- you ehmi had bruughi it
[liome to htm : but you do not lay it tlial it wau
oken of them at all, but onty in'th* immvndo ;
■^tfls you ougfht to say, first, That he s^pokt-
I btc king", and this kinij ; and then said,
Nave hud two wicked Unv^s tog^*ther, in-
fmucitdo^ I he Jate king, and this king.
' An. Gt:n, My bird, 1 do not know how we
I could have done it bcUer th»n we have done*
L. C* J. lx>ok ye, w^e give no opinion ; hut
^thc objection has weijjht in it^ upon m) word,
I Ai I told vou before, in common rasi^s, an ac-
i tio« of fhc! case ibr word**, or tl\e like, ynu
ritiitxt lay a communication coocemijic'*^*^
Ffilainlifr, or an intiumdo^'iM not be asutficient
[ aierfiient of its lieing; spoken of him. In en
' I of ihf ciise for words, till utlhiu these
In or eif^ht yearn, they wen* obliged to lay
r the plaintiff; and of hi<% tnide ;
I me him, were bp<»kt-n of him
ill Mtrii u iitut' such word^, l^<s thnt h^ was a
^ <?beatin{r knn^u; wher*.* the woni knave would
1 Ix^ur an action, n hnre innucntjft WmiW not do,
tikiii wdH nr»t tnoTigb. But, now I confess,
klmncedtelaratUius nre made a littli^ more con-
1 ci«(e, you need only ^y * dixit ile qnaTente,*
bwudi «nd Huch wonk" without a Voitoffuiuffif
fliul you must 5ver it t'j be spoken of the plain -
Ltilf. 1 never thou^it it |fnod in snth a cose,
, ^ My of a merchant, tie is a tiattkrnpt knare
{innuendo the plaintiff), unless be say he ^
of his ti'ade and merchandise, t^o tbat the
jcrtion does seeno to carry rery niucb
iu it,
SoWior General (llr. Finch). My lord,
ynur lordship would ^ive me k*ave, 1 woi
endeavour lo ansvrer tne case as yt^nr loidjjl
has pni it ; for, my lord, no donht m all coi
nion actions of the rase for words, it rnuai
averred lliat tlie words wei*e spoktn (tc jn
of the ptaintiff; hut the first partol
ment, m tliis case, shews that the v
be spoken of the person of tiie king, ;-i
late kinijr; tor it says, be did cunfi[
death and destruction of the I 1
(Mise him from hisy:Ovenmieii(
that traiterous, wicked inienutiii ^pi i
intcnttotte lie did speak these words of
veriimeot, ♦ We have bad two wicked
* together,- meaning Ihia king and the
king-
Z. C, J. If you bad said fto, that be «^
these words of the king» you had an«wV
mv objection; but the conspimcy of the d
ol' the kin^ bein^ only a general form
treason, will not make gotnl an mdicf^
of higli treason -, but yo^ must vh»-w
acts or words to evince and prt V '\
his intention; that he did eit
and Siucb words, or did KUch - >
It i% not a gfu»d indict meul to »
■; , for he spoke fv '
■ > c4iiTy on hi<i 1
..... ....J such v..n,t. of .,.. ^„.,..._...
mtist be potiitn d,
SqI Grn, V\ , mv lord
*■ et ad ea!^dem net and as |
* rimpleud&s,* he spiike %
Wehaveha^l two wicked kmgsi togclht!f» i
uurndo this king and lite late.
L. r. J. You ha%e innuf.nd<i^'d\% UM ttiib
T do doubt ; for all the fncts are laid imdi^r
iiinncnd<Xi MiUiout a positive avcrtnenL
Alt. Gen, My lord, I think it isasfuUy U
as il |)ossibly eouM be.
L C. / Come, Mr. Attorney, if an casrt
common artions for %» ords there \m ^ueh «iyi
nc^s reipiiretl, ten time^ more ought thcru
be in an itjdictment of treauon, where a maj
life, and all, h so much concerned. 1 am i
i»ati.%lied, I aa^biire you, that this indiHiBrnl
well hiid. thotJgU I give no opinion ; but In
justice wo oujjht to aswgn him counsel to ma
out his ohjcction,
Ati. Goi. Alt this, my lord, is only in 4fU
LC^J. Mr. Attorney, * Ue vi'
* nulla est cnnctfttio loiig-a.* I thin^
to as5«tgn him ^ ^1 the rest or my m
!hcr!arcofi' loe.
A(t. Gen. *.' i tti. :ij read colonel Siilne
Trial, '^ and the [odictment there, and tbej
find it the siirue ibing,
L. C* X 1 cannot ttll whetlier there arc
such innumdin there, 1 believe noi^ b
know not il'Uiere were, if in ease it had 1
* SeeTol % t>. 8ir, of ibia CoHectM.
STATE TRfALS, sSCharlbs
»H in aiTMt of judg^m^t^ what ihe court
M b»?e dooe thctt* But I think we oaght
tft Mi^ lum counsel to make out Uts ob-
• Tery fact thftt makes this
rTH'^' up sedition and reLcllton
iruj we saVi to effect it,
ii< rn his pat pit, we have
together, raeaniogf
huvc su^ei'eil Po-
ne uiidei tiirir noses; hut, if yop
■your pnnctplejf, meaning ihepeo-
■" irour coeniies;, meanlntr
PI '3t.
" f!o not say that he
^«ke ' I :^ : iliis you shoukl
ii :.,.:- :i:espcnkiiigot these
fy^iy overt- act ; ari<i if he did not
rof ttie kiojf, ^ hicli yon ought to
at Otily hy way of mnurndot thai cftn-
* think, be m* (jo<hI, lioi' sofiirient.
J«i». H'tMinT. I take It that these are the
m wonls that are to noaiutain ihj*i indict-
. and the <piestion is. nhellier
hare t>een averred that they
okc=n otiii ' .rs?
, J. We any opinion, Mr,
' jir-L liuii Keemti to he $oinc
t and weii^lit in the objec-
» K r-vt' li urjTUfcd, uud iheretbre
An. t . ■.. , L. uk your loidshsp,
. £. C, J. We (fo ihnik !t Ht to Jook into it, be-
w© nrue^tnl any tariher in a case \rherc a
'^ttn^thie 18 cOTicprnotl,
Ritt, 1 prny find lo bless yourtordship,
t' i you have na ntn^d to thank
'^ :u do justice lo a!l men.
fU*i, Uui 1 <U sire to rti tiro luy hearty thanks
' jfour lordsihip, for exphiniuf*' and maktntf
I tny iinakilfuhief** in the law Avould
nil me it} do, God be your reivarder
Ft* C. /. Well, who would you bare to be
ponsel f
fif yonr lordship pleases, ftlr. Wallop^
hpxfi-ii. :nu\ Mv. Thonms llaraptield.
rf- C u as^ii^T^ued of counsel for
I veil, I ihink It IS noe im-
k»', Oju^o this occ*j*i*>o, to take no-
liiai H in my mind, relating- to your
I In^c^use f observe it is a matter of great
itioii, and *so ^^•ds M your tnirf, and here
Rt rrowii " " ' now; vhat as thii^
undr if t! I nt (ulU out to be a
Dent, unirii is the question that
btfffore the «*ourt> so that you
;,.,4..,.,^^t of high -treason paijsed
■r according to that jud^f-
[ik,.„ ...., ., , inc of thf?se 4CK) people
sr yotif auditurs at the time that these
lilt are thus found and a<1jnd^ed to bij
Oo, w^rt? spoken ? And 1 siieak U for the
of all eon?entiok'rs» and frcipieolers of
•fb mertinj^, (ts tht^se are. If yoo, that are
tttpTOfberf . and tcaebere, the mouths of such
s, do utter treason, and so they
n; 1684.— /or High Treai^n.
conceal that treason, what a condition are thejf
In? What are they guilty of ? Therefore,!
)>eople will consider, they would do well
think, that when they go to such places, th
go at a great peril ^ being to answer for thetii-i
selves, ^lieir lives and estates, upon the pru-i
dence of the expressions, to say no more, tba(
come from the teachei^, I only put 3'ou m
mind of this, because I would have all standers*)
by, and the auditory, which 1 sec is lery i^reafJ
ill mind, what danger and risk tbey run in lliitl
offending the law, ^^
Htn, My lorrK 1 do hcUeve, that 00 one iM
the world^ besides these witnesses, ihut heri^
were produced ag'amst me, can ever testify the
lenst disi"e&[*ctifiil woid spoken by me of tb
late king, or of his present majesty*
L, C. X Well; when will you be ready J|
gerit!emen ? *
Mr. Palkxfcn. My lord, we desire to hari
as much time to prepare ourselves as we can.
£, C /. TVo or three days time will servCbJ
Att* Gen. It Ls ^t we liliould kttow wha
points they intend to insist apon, that we 1
prepare to arwwer them.
JL. C. /, Yes, \es, that must be, but I 1
ceive his main objection is, what I tell ; let him^
be brouq-ht hy rule hither, upon Thursday, be«H
cause the »:oun may have time to consider of |
what shnll be said on both sides.
Rati. My lord, these gentlemen are Strang
to me ; hut I dare rt^ly upon them, tron
the character I have heard of them, that thej
will do tne all the justice tliat they can.
L. C, X Well, they are assjfjned of couns
for you. But 1 eon Id not forbear giving tha|^
hint that I did, ibfil this might bea warmng t«
people, how they transgress the law in gtnsg
to such meetings.
Die Mercurii, 26 Novembris, 1684'
Bex rcr, Rosewell. ^j
i. C* X 3Ir, Pollcxfen, hare you any thio
to move i*
Mr, Folleifen. My lord, I have one word to
move for myself, and the others that are ap>
poiote(l to be of counsel for Mr. Rosewell. W«^J
rJniik it our duty to apply ourselves to youiLj
lordship for this favour ; thai, to enable us tb*
belter to do our duly for the person for whom
we are assigned, your lordship and the cour<r j
would plea^ to order that we may have a copy'
of the indictment. We do 3cknof%ledge, that
It is not an usual thing lo have copies griuiieii
(thought there be no express law that we know ^
against it) in capital matters, but where any I
doubt does arise upon the petining the indict* (
ment, and counsel \s assigned to enable them to
do what is fitting for them to do for their clienly' 1
copies of the indictment have been granted ;
particularly in the case of Fitzharris, in order
to the plea that he was to put in ; and I my^
self was one of tb^ counsel at that time.
i. C. X Mr- Ptdlevfen, I make 00 doubt irtH
the woihl, it is in the jpower of the court to
order a copy of the mdictmeot, if tbey eeo
96SJ STATE TRIALS, dA Charles II. \6U.^1Vial of Jkmai Roseweir, [264
laid here, be so positively affirmeil to have been
spoken by th^ pilsner and to relate to the go-
vernment, asibey ought to be in an indictment
of iiiL^li-lreasnii f
Ait.Cen, That the indictment must make
(mt ; and the jury have found him guilty, ac-
cordinar to the indictment.
X. C. J. But that is his objection, they are
not so in the indictment.
Att, Gen, My lord, they are laid as the
witnesses swore thcni : as your lordsJiip can •
not but remember.
X. C. /. That they are not positively af-
firmed, but only alleilged under an innuendo ;
lliat is, he spokisiifhaud such v.ords, whereby
be compared tlic king in Jcioboaiu, and the
like ; and we had two wicked kings together,
but if we would stand to our principles, we
should overcome our enemus, innuendo the
king. The allcifging of the words spoken
in the indictniont is positive, if there be suffi-
cient matter in the words to make them ap-
plicable to the government, so as to make it
treason. Rut it you only say, he spoke them
inntirndu so and so, that fs not positive enough
to make the indictment good. I lake it the
«»bjcction runs tfiat \¥ky.
Rm. My loni, I humbly thank your loi-d-
ship for explaining my meaning : if is so.
Jr. C.J, In an acCum on the c.iSk\ if yon
say the defc-ndant ?fpaJco such and such words,
if you «lo ot lay it that he spile them of the
jdatnlid'; inv\uuni\ The nlainlifl*, in repent-
ing thi- voids uf.i't ^o. S) hfrc, if you had
bronchi it in the ii'ilivtnient, that having dis-
CfHirse o, t'.M ititv king and this king, he had
sp'^Un til. sf: wiird.s-, * ^Vi- lia^r now had two
•wicktd kif i;s ^<*' you lh«-n had hrou;u;ht it
hoint to liioi : hut Vini do not lay it that it was
spoken of th:>ni at all, hut only in* the innuendo;
vhureas yoiiouf^^h tosay.firNl, That bespoke
of the late kirg- and Uiii kin:; ; and then said,
We have hnd wo wickw kin«,'s- together, in-
vuutdvy t!ie J.ito kifii;, and fin's king.
Att. (itu. M\ lord, I do n(»t know how we
could have dom'it hiiiiT than wc haw done.
L. C. J, l/iok ye, we j'iu- no opinion ; but
the ohjfrtion has w tight in it, upon my word.
As i told you before, in comuK>n rasi-s' an ac-
ti »n of tlio case for word*?, or tlic like, yon
must lay a communication eonrc nii.iif the
plaunirt', or ati ^n1nfzndo^^l\\ not 1k! a sufficient
a^ennent oi' its licinar s[ioken ol' hiui. fn an
action of the (Tse for wonK-, till witliiu tlu*»c
seven or light jxarji, they were obliged to lay
a Coilwfvit'.m M (ht- plaintiff, aufl of his irai!*/;
and that to defame him, were Npokin of him
at sneh a time such word*«, a-? tdnt hv was a
rheaiiug knave; whew th." v. on] knaio would
hear an action, a bare innucwU* \\ uild not do,
that \\%v* ttnt nsOKs^li. !?ut, nou* 1 cimfiNs-,
since detlamUons aft made a little more con-
cise, you need mAy ^-ny **h!t {\v qiiUTente,'
Kueh aufl Mich words' without a Coifotptium,
but you mustavtT it t'.* bi» spoken of the plain-
tiff. 1 never thought it good in such a case,
to say of a roerchant, he is a bankrupt knave
(innuendo the plaintifT), unless be say he wgolae
of his trade and merchandise. So that the ob-
jection does seem to carry very much veigbt
in it.
SoUcitor General (Mr. Finch). My lord, if
y(mr lordship would give me leave, I would
endeavour to ansn-er the case as your lordship
lias put it ; for, my lord, no doubt in aU com-
mon actiant^ of llieca-^o for words, it must be
averretl that llie woi*ds wei-e spokeu de pemonm
of the plaintifl'; hut the fu^ part of the indict-
ment, m this case, shew tliat thf^ words mint
be s|M)ken of the jicrson of the king, z^A of tba
late kinijr; fur it siiys, he did conspire the
fleath and destruttion of the king, and to de-
fNise him from hi^i government, and to manifest
that traitcrouR, wicked iutentioti of his ; Em
inientione he did speak these words ot tlie go-
vernment, * We have had two wicked ki^
( ti^ether,' meaning this king and tlie M
king.
£. C J. Kf you had said so, that be spoktf
these words of the king, you bad answeraf
mv ol»iection , bu the coaspiracy of ll«! deitV
of' the king bi-iug ojily a general form for
treason, will not make good an indictnieiif
of high treason ; but you must &hew aooie
acts or w ordb to evince and prove that that itJW
his intention ; that he did either speak mh
and such words, or did such and such actinfJ
is not a good iudiciment to prove that faHl
ron^pLrc» for he spoke such and such words.
Lilt Ihmt to carry on his conqiii-acy he didspeak
such and such wordb of the government, that
must bi* pohitivi Ij allcdged.
Sol. Gf-fi. Wc do sfl my lord ; for we taff^
* et ail easdf -m nelandas proditiones,' &c. * pe-
- rimplendcs,* he ^poke&uch atHl such wom^
We have had two wicked kingn together, m-
iiuendo tliis king and llie late
Ij, i\ J. You ha\e innuendo^ J it too mutk^
T do doubt ; for all the facts are laid oudier HI
ianucndiX, without a poskiTcaverfnent.
Atf. Gni. My lord, 1 think it is as fully luif
'as il pissilily could be.
L C. J. Come, :^lr. Atloraey, if in casei «f
coinnKMi actions for words there be ?fuch strict*
ncas rtipiired ten timet^ more ought lherc?t«
he in an niljctment of treason, wUerw a man^'f
life, and all, is sn much Cfjacemed. f am not
siitiAfud. ] assure you, that ibis indictmtiit ia
wHt laid, though 1 give no opinion ; but in aH
JMstic4? w<' ought to asidgu him counsel to make
orU his ohjrcti.m.
An. Oi .!. All tiiis, my lord, is only in debj.
L. C. J. Mr. Attorney, '• Lie vita hominoi
* nulla TNt cunrt'i io loug^' 1 think we ou^
u> as>iiiin liinv cot n^t and the rest of my mo*
ilitTN- are of t'.ial opinion too.
Att Gfii. Lot them read rotoncl Sidiwj^
Trial," and the Indictment there, and tbeyV
find it the sanu- thing. *
L. C. J. I cani<olt*.n whether there are aow'
such iut.uendos th(Te, 1 behove not; but a
know not if tln^e wei-e, if in case it had [
« Sec vol. 9, p. 817, of this Collectiov.
8S5] STATE TRIALS, 36 Charles II. 1 684.— /or High Treat&n.
iwfcd in arrest of judgment, what the court
vould haf e dooe then. But 1 think wc ought
10 assign him counsel to make out his ob-
jection.
Sol Gem. The very fact that makes this
tnason, is his stirrinp^ up sedition and rehcllion
vilhin the kingdom ; and we say, to effect it,
Iwbad these expi-essions in his pulpit, we have
Bwbad two wicketl kings togetlior, meaning
tUf king and the late, who have sufici-ed Po-
MT to come under their noses ; but, if }'0u
vii stand to your principles, meaning the [ieu-
ple, we shall orercoroc our enemies, meaning
the king mntl government.
L C. /. Ay, but you do not say that he
ipeke thfse words of the king : this you shoukl
Hie nki at first, because the speaking of these
vffds b the very o%'ert-act ; and if he did not
tfak them of the kiug, wliich you ought to
lAm, hut only by way of innuendoj that can-
MC, we think, "be so good, nor sufficient.
JiBt. Wiihins. I take it t!iat tliese are the
mm words tliat are to maintain this indict-
■m of treason ; and the question is. wliether
Iky ought not to have Ijcen averred that they
vnt BMcen of the two kings ?
L, Cm J. We do not give any opinion, 3Ir.
)r, but because tliere seems to be some
doubt and weight in the iibjcc-
taifWc desire to have it argued, uud therefore
vMian him counsel.
Xml I humbly thank your lordship.
I.CL J. We do think it fit to look mto it, be-
Anevefiooeed any farther in a case where a
■■■?■«» concrrncd.
Km. 1 pny God to bless your loiilsliip.
L'C.J. Na\, you ha\e no nectl to thank
o» ; iBridesin^ to do justii% to all men.
Xn. But 1 desire to return my hearty thanks
ii mr lordship, fur evphining and making
iV what my unttkilfulntrss in the law wuuM
■M fftnoil inc to do. Gud be your rewarder
LC.J. Well, nho would you have to be
J»ir counsel .'
Rm. If \f nil- lordship pliases, Mr. Wcillop,
Mr. Pollexten, and Mr. Thomas ISaniptiolil.
^ £. C. J. \jcX iheui be assigne<l of counsel for
Mm. Rut. Mr. ftoscwell, 1 think it is nnt im-
(ra|i»T fur ine, u|ion this occasion, to take no-
i« ef this that is in my mind, relating to yo!ir \
lAir, because I uiiserve it is a matter Of great j
ilfi«.Ution, aud so uus at your trial, and here i
»» great crowd f:f people now; that as this
itei ts found, if the indictment falls out to be a
fMd iisdit tmcat, which is the question that
wtm dt.*fH'n<i> before the court, so that you
OHM to bavf- iud(rmcnt of high- treason fMissefl
■1^ you, and to suffer according to that judg-
■m. what uill become of these 400 people
%m we.t your auditors at the time that these
Mf^B, that are thus found and adjudi^ed to be
hHWv, were <;poken ? And I speak it for the
rib of all conventiclers, and frcqiient(*rs of
~ 'l Bwmigs, as these are. If you, that are
«. and teachers, the mouths of such
Df, do utler treason, and so they
[S66
conceal that treason, what a condition are they
in? What are they guilty of ? Therefore, if
people will con>i(lpr, they would do well to
think, that when they go to sucli places, they
go at a great peril ; being to answer for them-
selves, their lives and estates, upon the pru-
dence of the expressions, to say no more, that
come from the teachers. I only put you in
mind of this, because I would have all standers-
hy, an<l the auditor}', which I see is very great,
ill mind, what danger and risk they run in thus
oflendingthe law.
Rtn. ^ly lord, I do believe, that no one in
the world, besides these witnesses, that here
were produced against mc, can ever testify the
least disrcs[)ectful word spoken by me oV the
late king, or of his present m«ijesty.
L. C. /. Well; when will you be ready,
gentlemen ?
Mr. Poticrfen. My lord, we desire to hare
as much time to prepare ourselves as we can.
L. C. J. Two or three days titne will serve.
Alt. Gen. It is fit we sliould know what
points they intend to insist upon, that we may
prepare to answer them.
L. C. J. Yes, yes, that must be, but I per-
ceive his main objection is, what I tell; let him
be brouufht by rule hither, upon Thursday, be-
cause the court may have time to consider of
what shall be said on both sides.
Ras. 3Ty loni, these gcntlcnu-Ti are strangers
to me : hut I dar^ i\Iv upon them, from
the character I have heard of them, that they
will do me all the justice that they can.
L. C. J. Well, they arc assi^^ned of counsel
for you. Hut I could not forbc»ar giving that
hint that I diil, that this might lie a warning t(v
people, how they transgress the law in going
to such meetings.
Die Mercuiii, 26 Novembris, 1681
KeX VCr. ROSEWEI-L.
L. C. J. 3Ir. Pollrxfen, have you any thing
to move :'
>ir. Fof!f\fcn. My lonl, T have one word to
rnovi* for niyseir, and the others that are aji-
••oiiUe-.l to ho of counsel for Mr. Rosewell. We
think it onr duty to apply ourselves to your
io.d.ship for this favour ; that, to enable its the
i'tttcr to do our duty for the person for whom
\\c arc assigned, your lordship and the court
would p'easc to order thnt wc may have a copy
of thr indicUucnl. He do acknowledge, that
it is not an usual thin<>- to have copies granted
(thought there he iu» c.xpnss law that we know
at^ainst it) in capital matters, but \Uiere any
iloubt does aiisn upon the penning the indict-
ment, and counsel is assigned to enable them to
do what is fitting for them to do for their client,
copies of the uidictment haie hfcn granted ; as
particularly in the ca>e of ritzliarris, in onlcr
to the plea that he was lu put in ; and 1 my-
self was one of the counsel at that time.
X. C. J. IMr. l*olle\fen, 1 make no doubt in
the world, it is in the power of the court tr*
order a copy of the indictment, if they se€?
£67j STATE TRIALS, 36 Cuaelbs II. i6%4^^Tiialof Tkmim fUmweli, [968
ttaiue ; but. if }'0U remember (for you were of
oouDsd in tlwt cause too), it is not to be pnoted,
because it is asked. For my lord Russell had
no copy of the indictroentp though lie insisted
rery much upon it: And it was m the case of
FitKharris granted, that he might particularly
apply his plea (if he had a mind to it) to the
inuictment ittM'If.
Mr. PoUexfcn. My lord, I do not desire a
ropy of all tlie whole indictment ; but of so
much thereof, as may be enough tor us to
know the foundation upon which we are to go.
1 do remember wc were called in, in my lord
RusselFs case, upon the point of challeng^e, for
want of frecholuers ; but that was not in the
point of the indictment, and there I cannot see
what we had to do with the indictment ; but
here we must understand bow it is laid really
in the indictment, that wc may apply our ar-
guments to the case ; and that 1 bene? c was
never denied.
L, C. J. Look yc, if you speak to me pri-
vately, as to my own particular opinion, it is
hard for me to say, that there is any express
resolution of the law ui the matter; but the
practice has been always to deny a copy of the
indictment. And, therefore, if you ask me as
a judge, to have a copy of the indictment deli-
vered to you in a case of high -treason, 1 must
answer you, Shew me any precedents where it
was done : For, there are abundance of cases in
the law, which seem hanl in themselves ; but
the law is so, because the practice has been so,
and we cannot alter the practice of the law
without an act of parliament. I think it is a
hard case, that a roan should have oonnsel to
defend himself for a two-penny -trespass, and
his witnesses examined upon oath ; but if he
steal, commit murder or fblony, nay, high-txca-
son, where liie, estate, honour, and all are con-
ccrneil, he shall neither have counsel, nor his
witnesses examined upon oath : But yet you
know as well as I, that the practice of the law
is so ; and the pnietice is the law.
Mr. PolUxt'en. My loixl, we heard the other
day the indictment* read, and so may have
some little account of the indictment ; hut we
desir<> such a copy as may enahic us to ar^^ue
aswRoujrhtto do, and as the C4)urt will e\|H.'Ct
from us, U'liig as>i{^niMl by the court.
Mr. Wallop, My lord,* if we Khould offer
any thiiig tliut is iii>t in the indictment, it is all
one as ii' we heltl (uir rui)<i|riies ; and if we have
only a lo<*.se account ui' the indictment, that
may be as bad as if we had a false one : and
therefore wc desire, to the end that we argue
ad idem, that your lurdship witli please to fa\our
us, that wc may have a copy of so much oi'
liie indictment, as upon which our objections
may be grounded.
L. C. J. Mr. Pollexfen, you may remember
a particular case, I have forgot tiic name, but I
belief e you may remember it ; where a prisoner
at this bar desired to. hare the indictment de-
Lvensd to him to read, hut it was denied him.
It is hard, I confess, and so are many other
thipgv in the law j but 1 am wonderfully
tender of making precedents: tad thereforp, ii'
it has not been practised, I do not see how we
can dp it.
Just. Withins, That is the usual practice,
my lord ; but it is m the power of the court
sure to grant a copy ; or, at least, of so much
as is necessary tor them to apply themieivfi
to. There have been many cases of rourdcni
where they have had copies of the indictment
in order to move in arrest of judgment, at this
case is.
Just. WaUoi. But have there been aDjio
high treason i*
Just. Withins. 1 do not take it that then p
any difference between the one case aod tb
other, they bein^ both capital crimes; aiii
counsel being assigned, they must know wlMt
they are to speak to.
t. C. J. 1 would know when ever a com
was granted to enable the (wrty to more iQ
arrest of judgment.
Just. Withins, My lord, when there if A
motion in arrest of judgment, and counsd pi-
signcil, that is a thing the^ ou^t to bMNfi
how to demean them^vesm their ai^gunoMpilk
3Ir. PoUexfen. My lord, we sumnit ft #
you. We desire the favour that we may Ac-
quit ourselves as we ought to do, ami ap thi
court (we know) expects from us.
JL. C. J. As iar forth as I could do, hmg in
the case of life, 1 would indulge you : m I
tell you, I am lotli to be the author of praee-
dents in cases of this nature, one way or odi^ ;
especially in this case, where I know VM
cannot but understand, by what was firnf
here the other day, what tiie objectioii is, tad
where the stress of it lies: every mao aldw
bar must needs understand it.
Mr. TolUrfcn. My lord, we know peflpio
have various understandings ; and the caie ii
many times variously stated, not only in ow
minds, but in our books.
X. C. /. Well, we know you nndentanl
yourselves well enough : and what w« oouii
grant, we would.
Just. Withim. It may be Mr. PollesAtf
does it only to make way for an excuse, wk«
he comes to argue, that he is not so well pv^
narcd as he should have been ; but we knsjf
liim well enough.
3lr. Pollcjrftn, But, my lord, if we miiBlkp
words of tiic iudictinent,we hope your lordplap
will not tliink us im(icrtinciit, in having uadk
this motion, which is lor ourselves, not for oiv
client : and therefore, wc hope \ou will pardai
us, if in ease we mistake ; which we ooali
have had no colour to have desired, if what mf
had to sav, wore guided by a true oopysf
the reconf.
No co[)y was granted, nor rule made. *
* h\ Stat. 7 Ann. c. SI, s. 11, it was c»»
acted. That alter the decease of the person wipf
pretended to be Prince of Wales durmg the flk
of thehte king James, and since pretends i|
be kmg of Great Britain, and at the end oTAi
term of three years after the in
IJ STATE TRiAtS, 36 Charles \h 1684.— >r High TreMsm.
[270
DoiitMts Rrst vtr. Rosewell.
KibvMr ni>^i tvrll was liff)a«rht totbe
I cotitisel assigned
AUop. Msky It please vo«r lordship^ I
n*e\ for Mr. Roiiewelh by yoor lord-
{ippfHiiUtieiil, be being here a prtsoner
II ihc demise of her
ir«*ct, aslhesaineis
i gUiMi>> ittiiLtca, xc A^hcQ any person is
iodktiFd for hi^li trtusvMi or misprbioo of
UWOii, a liii iA'xha ^Uoesses that shall be
aeoid on the trial for proviDtJp the said in-
■ml, and of the jury, Qietuioning' tb«
DiaMm, profanton and [» I ace of abode of the
Hilirftiiefii^ >uid luioi^, be also ^iven at the
i%\i >y of the iudictment is
I Ik: r nidicted, aod that copies
^ictitietiiA i\}v the offeuces aforesaid,
I llMl, shall be delivered to the party
I ten days before the trials and in pre ■
I of two Of more crtdible witnesses, any
iitrary notwithstoiidinpf.
t. 7 Ann. c* 21, extended
"■IBpri^iiegc^ i^nich had be«n g^ranted by
ML 7 W. 3, «. 3, and was first a^^ted upon
Gordon's Case, a.d. i7Bt» io
pomnioti'luw no prisoner in e&pilat
ft^% iniitlt'd to a eopy of the indictment
B\ V of the proceed in ens against
|1 »t>6« it is true, hiive upon their
tet! on a copy of the whole
rtMi \ Itmh been ct>ii«tantly denied ,
' It «1» 4ktii«!4l iu Ihe case of lord PtPston and
(be fivo other i^entlcnien indicted with him, by
^"^ ^ littiouB opinion of the judi;es present,
'ared tliat it never hail b«^n jtrratitetl,
\ ttm^tnt\y demanded. And Itn^l Pres-
•aid that it was grtinted to lord
,1. f.^A i.v„ iu„t heaod«*)me others
if lb* I . ere of counsel for
tl||tlo(l^ .— .>'L «.,... i.iiu to denmud it;
' FoA, sailh he, we knew he could not have it
*hy law.' Lord Predion* not ^mtisfied with
flui iii«wer| prayed that coun^l mi^^ht he as>
hitit to arjnir tlmt point; which the
aitimoiislv -i bebg", iheynid^ >
i Ihat woi I i i a debate/
p«tatute of 4(3 K. I>, which had been
imtlfj insSated upon by prisoners in the like
tm^ was mxnth pressed m this. It is not in
{te inKmi? th«< Httlutes, but an attested copy
ftn fhe roll woM tetkA at the nrisoner's remieal,
Ihl if firinted in the triaK it plainly reialeth
in such records in whi^V '''^^ -nhject may be
intiltted, as ^ truittv't - '^ upon tmes-
* fiao» of pf irate nghi:' .../. .. .i^ctetli, *ThBl
' dl ytnam shall for the future have free ac-
* Qte to fliem, and mav huve exempUficationa
* •f tliicm w hethf ■ ' c for or aeai nst the
*teBj.' Tbit Hn -lion of the whole
now at ihe bar. jMy lord, I am informed (for
1 have not seen the proceedings itor heard'!
the indictoient read), that it is an indidmeiil?]
fbr treaBOnable worda ; and many treason
words ; and likewise, as 1 take it by iaforma*
tion, these words are aopfiad by divers innu»L
t^fiiioi ; 9o that, for augrht I can apprehend bjrtl
what 1 am informed (which I must still keen!
to) it is so uncertain I insensible, involved^ and ]
intricatei tliat no safe judjrment, as I humbl j J
coDceife« canlt 'U it, €
My lord , to c I ' - iMvords ; first, if ynuii
please^ I shall Ftaie lucm as disciiarged ofthe ,
innuendos^ and put them to your lordship /
barely and nakedlyi as ihey are'in the indict* i
mcnt^ and as they were sworn, and are to boil
aup^MVsed by the conviction to have been spoken* |
The words are these, as they stand dlseuargtil'l
of their inuuen^ojr : that ^ the people make ft^
* fiocking" to tlie king", onder the pretence €M
*- httalin^ the kiog^'s evil, which he could naft^\
^ do ; but we are they to whom they oug*!!! 1
* flock, because we are priests and propi
' that by our prayers can heal the dolors
*■ g^riefsof the peuple. We have had now
Mnckod kings together, who bave sufiere^l
* Popery to enter under their noses ; who cmtl
» be H' > > no Qiher person bat the
* wir' I inm : and if they would i
* to tlni. t"'^" 'I'lt'Sj be did not*feur but tltejrl
* should overcome their enemies, as in former f
* limes, with ituns-horus, broken platters, an
' a stone in A8ling.^
These, my k»rd, are the words nakedly ia j
themi»elves ; and tliese are said to be spoken ia^
a public assembly, where (hey were likely f»l
do hurt to the government, Thua, I say, they i
stand without nnv of the innutndos, Now,^
though your toi'jship will have, and justly i
ought to have, a good account given you of^
** In the caae of Chamock, King, and Keys,^
whose trial* came on after the passing this act^
and about a fortnight l^i'ure it took pla<v, they {
were denied a copy of their indictment | -
though they argiietl with a sjTeot deal of pla
sibility, that they were within Ihe reason
e^juitv of the act at that time, an much asl
would have been if their trials had been I
on a tbrtnight later.
'Mn these cases, and tn the case of tlie as« *
saaaines, whose trials come on lieforc the com*
roenceftient of the act, the prtsoners, as soon
as they had pleaded, liail copies of the ^
delivered to uiem ; and their trials were' [
poned, that they mi^rht be better enabled to
conduct themselves with regsni to their chal*
teages. But this the court declared to be
■Mtier of favour, and not of right: and coun
and solicitors were permitted to attend themim (
prison previous to their trials. This likewist.^
was an indulgence, w^hiehtbey could uotckim <
of strict right, and which in bad tiuios hatli i
been genendly denieil,'* Fost. Cr, Law» i»£8, ^
«99. [
tl^, ttio, pp« 1 , 3, 930 of the eMIt bvok, Mi J
East's PL Cr. oh. «. a. 48^^!. d^
ri] STATE TRIALS. 36 Ctt ARtES II l6S4^^Trial of 7Uma$ Rcatutif. [S
I vvortU m these, how lUey canie to he
n, even uking- tbem as ttiey stuml tlis*
linrgiHl of ihe vmuendot; yet 1 buniUly con-
Pivet vriili subtntssion^ th«^ tlo not contaiti
ny iaieftiion of (lepcK»tDg^ or' ^ the
insff aiu) so can bateiui trc^si>> mIiou
|ti tucin : ami then \yur lordship* i >-in>|)«&c,
FiH likewise exjK'Ctto l»a%'e a gfO<id at'tHnint of
tliese wori|}j, in another respect^ how ^oids^
which la the hearing of ihera bare!y ami
ily sjiokeiYi could nol carn^ a irpuMkrinhle
loti ; I say, how it cou\e% to pnss ihai in
irititiK' ot** them down in ati itidictraent,
bey bctfiiiic high- treason.
My l*jr l\ tliest' wui<N. us llirv stand dis-
, extmva-
1 It r towards
»tiren^y. ihuu treason, N» that a* ihcy stand
f^itboul further e,\[»laiialioti by au tnmtet/fin^
lii^y are fierfectly iiiseniiible^ and one cannot
tl\ M bat they refer to, or whom ; and if th^
Ofdx, Ej vi lermini^ wilbout further avcr-
uetit, cHjutain no treasonable intention and
fti ' 1 I ntly have no treason ;
and bard to main-
, ^ji'i xj, I in- ,ioiiijMy in nhichlhey
irere spoken, bein^' m»t into l^tin in an indici-
«iit, they liihoiiUl OL^otne tjf''»^riu ili. y not
Nig trt'&kon at Hotbcrbith» yy ' \vei^
olcen: bow t bey sboubt bi> tr «im at
lingatoni or bere, where thk-y aie dressied n[»
a anotlier form* Indeed, t know no way that
I can be doB<». but by abiding: some other worris,
some other bamT And, my bird, I snjnK*»*c
_ was ko done by lho!»e who framed this in-
ij<.ifnei!t that is Before your lordship* by iu-
ting" and adding tbts uiuttitndc of ittnvendM.
But I Bup(io«e, Uien, they that would insert
I trtnucndoi must bate a ^ood warrant to
I til era: iov if lliey are mserte«l wiiboui
nnt m law, then it must be acknow ledgfed
uie ))i;tt the indict metit is not |food ; ami f
llitmblv conceire it tu be a rule in law^ tbattto
nnuetttio can wammtably be inserted in an
Indictmatit, intbrmation^ or deckration, u\n>u
action of the case for words, unless the
leleiidaiit fn^ him^ielf be averred, and that
ectty, to bave mentioned a pertiornn certain,
I wboiti those wonls may be rvterred ; aad it
i uoi slide in by supposition, but it must
' in tbe body of the Uiiicour!ye of the dc
ndant. And tbe rttason i^ evident in all eases
r slander* anil particularly in these of tria-
ble uordti ; for how could Uie hcnrer under-
I whofn the preacher meant* or be tiiat
neonrsed so and so, and so be itiHuenced to
ebellion* uuleaa he had nametl the perAon of
I be spoke, as here, unless the fletendant
■med tbe kinqf* to wbotn tbe wordii lie
b should be referred?
My lord, tbe treason of the words is in
It trring up sedition and rebel li on ; and if then
the words cannot tenuinate upon tlie king,
and tlie hearers roul*! not collect that to be tbe
intention of the flneakcr* these wordi» couiil not
Inilueficf a people to rebeUiou und seiiition.
And acGordipg to Ibis rule, I conceive tliat most
of the ififiucndm in this iQcbctuictil ue ]
warrantable.
For, my lord* as to ihe first w^
Ibem in order, tboui^h I take ir, ttr
moat reuiote mutter from thi
yet lot us strike otf \hv^^ in-
ahm^* if we can, T
iSic, Ibe piK>p!c(ni'
lord the ! '
cure tbr
Here Iht in^, ,,f:
in J? the suhj«*cts of (
hud never 1
but tbe
tbe Moril :,
my lonl, i» als
cndo ; and ii
rh, with
1 of a naughtji
warnnt of
etidcaTourmg to give an orig-inal certainty
umfrtaio words ; which is more than ibe oS
ot^ an innucrtth will allow or warrant. I i
my lord, it always heara a bad face, irb
woi" lear with ani/tnii(/)</o ; and f
no vnn in the brcifuunfif ^^f
but ■ '
to I
Orih.'. i'.'i i> iiji.il li unniii-iw in- ll^rM in tii
Populus iiuiy intend any people, it may tat
the Fiench i>e*"il*^ *^"' VJng to the Fr
(and he does I i^'s evil in Ih
nmnner : na>, i to it* as a sole
him* \ns predecessors^ and successpra ]
only put that for an instance) j and
innutndott if you observe tbem, anc «(f '
nature, Tbe words first appear without .
light but what these ^upiKwitions givf
and therefore, I say, they ai c to be raj^
Fiut now, my lord, 1 come to thai \
more paiitcular* ^ Nos babuimua nu
*int: '• imul;' * We (me
suli -) • hare had two i
kiuj^. V ^ Cbarlfcitbe Fir
tbia kiau TSow that we say is s
If ether V I jewas no i^n^MiSm^
feingfs, TV or i^oci
bad, befnj ■scours*:, f
in^ to the olli ce o t a n j
are lo be appliad. My hi i
foL U* B. liaitbis case.
John Jeames brings his action against A5c
under Uutlech* tor speaking iU*
words concerning bim to oneJoL
*^ Uau|; limi (pr&edictum J<k
innuendo) he is full of the ;
the French pocks) I marvel ^
dictum Johunncm IlAnner in}i \%
drink with him (prv*-'" " m. i.
inniHtido) 1 will pi'
pocks {innuendo the : , . i , .
motion in an e^t of judgment^ it was ref»p|«
by tJie court, that jn every action of thu
for sbmder, two tbingh are re^juisite. Piij
that llie {lenson vvbo is scandalised be
S!iecondly* That the wortls spoken be app
slduder. Tbe ufilce of an tnnueuJo ts to-
sig^o the same person that has lieen nan
fore : And is iii eflect, instead of
But it camiot make the person certatti^
4
its]
I before. In the present case, it
m enient that the pluntiflf did speak tbe
earliof the defendant. But at to the secood
iaf, it did DOC appear that the words spoken
ii mean the French poeks ; and words are to
heti^Hi in muiiori
•Mich. 41. & 49 It!gin« £yz. en bank le
Rtv, entre John Jeames pi. & Alex. Rut-
Le jininiitRi ooniit que le defendant, ct un
STATE TRIALS, 36 Charles II. i684^^ High Treaaw. [274
And I humUy conceive this book is a most
pregnant authority, that states the matter
truly, with a judgment of law, and the reason
of it; and all the books that come after this,
borrow their light from what is laid down as
the rule of law is in this case ; as there are an
infinite number of them, which I shall not
trouble your lordship with particnhuising ;
only just to name some of them. 6 Co. SO
Hob. 45. and 2 Cro. 136. wherein they say,
that althoueb the plointifl'be particularly named
by a special name; yet if the declaration ooaoea
to name him in an action of the case for wordSf
at the first appearance with an tnntiejic/o, then
tlwt innuendo is void ; thougii his name be ex-
pressl)r alledged in the very words, yet they
will reject that innuendoy?^ not doing the pro-
per office of an innuendo ; and that judgment
shall be arrested, though the jury found that
the puty spoke such words ; And this is upon
the rule in 4 Co. before- mentioned.
Now, mv lord, to Apply this rule in the 4th
report, to the case before your lordship, we say
there was no mention at all before ot any two
kings ; nay, not of any king, in his discourse,
to which the innuendo should refer ; and the
innuendo being joined to tlie wonis first spoken,
without any discourse laid concerning such a
person, or averment to be spoken of such au
one before, the innuendo cannot give any cer*
tainty to that, which had no such original cer-
tainty ; that bein^ against the otfice of an t/i-
nucndOf and so is to he ivjcctcd. And the
meaniDg of the books, aud of that great rule,
which 1 first cited, is this, that the defendant
must himself, in his discourse, first set up such
a light about tlie words of the person concern-
ing whom they are spoken, that the intention
of the speaker may with case be collected;
then comes the innuendo with a beck or a nod^
as it wei-e ; and that coUecrtion is to be the nulus,
to shew who was meant ; but it is not sufficient
to give an original certainty, where such a oer*
tainty is not fixed before the innuendo comes.
The defendant himKelf must set up such a
light as will carry the intention to the end of
the discoui-se.
Then it is said. Duos iniquos Rega, in the
])liiral number ; meaning the lute king Charles
and lii*$ present majesty ; now king Cnarlea the
first WBi^i never pretended to be mentioned be-
fore ; why then, according to that rule, as to
liiiu the in/iutnJo signifies nothing at all ; and
then it must be taken in eoumiun undcrstanil-
ing, * We have now liatl two w iekeil kingys to-
ifi'tber,' innuendo^ <»ur s(»vereiijn loid the king
that now is, agiiinst whom the trc :im>!i must he
sail! to be connnitttrd : btit tliis i*; mmv harsh,
and inst-nsible, autl iiii)H>ssihle ; ii is irjish, in
vw. wiMHK^ *Z*°^ eonierenoe de le plaintiffe ,
U drfwdinl .dii. plaintifie al dit John Bonner
* huig him* (pnadictum Johan-
iDDnendo) ' he is full of the pocks'
the French pocks) * I manraile that
i^mf (pnedictum Johannem Bonner innuendo)
■i0ea&' [Bl * or drink with him' (praedictum
MMneni Jleenaes innueodo), I will prove
to he ii full of the pocks (innuendo the
fflMKhpodss). Le defendant plead non cul-
|tfr, ct fait troTe.pur le plaintifie, et damages
■Hw: Et luit move en arrest de judgment
eki ditB perob oe fueronc actionable. Kt
lHBlfe<|iieenGhescun action sur le case
ClMdcnma perob, deux choees sontreqni-
1. One le penon qui est scandalize soit
Mmu t. Que le scandal soit apparent per
In fili mennes. Et pur oeo si un dit
D precedent communication, que
eiits de J. S. (il ayant divers) est
Fekm on IVaitor, &e. icy pur le
nnul action ^t; et un
■e poit iaire ceo certain : Issuit si
iment : > 1 know one near about
e nolorions thief,' ou tiels sem-
i qoent le person est un soit nosme
. come si d^x parlant ensemble dc
JlClWdit. « He is a notorious thief:' La
JlftiB wm ooant poit monstre que la fuit par-
Jmi ie ley entre les deux, etque ]*un lUt de
*iy: * He* (innuendo pratedictum 1. 8.) ' is a
^MainB thief.* Car le office de un innuendo,
ete^eHteincr et designer mesme le person
S'bI Boame en certain devant : et en effect
eafieu de un (pnedict') mes un (innuendo)
SipiiCftire person certain que fuit incertain
ilMt: Car aerrk inconvenient que actions
^ Jpim — intnine per imagination d'un entent
[•KpRi^A^appicrt per les parols sur que Taction
, mce est tout incertain et subject al
ooniecture: Mes si un dit aJ. S.
art a Traitor,' fire, la ' constat de Per-
et action gist : Issint icy en le case al
leant le defendant et Bonner ad par-
4m pi' donques quant le defendant dit
him :' La (innuendo) voyle denote
lepertOQ nosme devuunt : Mes si le de-
■uins ascan parbnce del plaintiffe ad
* knag him,' &c. la nul innuemlo vo\ le
fieile person certain. Quant al 'i. si coine
^^mim) ne poit faire le person certain que
mMaia oevant, issint un (innuendo) ne
kvkeiatlcr on sence des psmds inesines :
•nt le defendant en le case a I
intiiie ; « That he was full of
~e the French |iocks)
m 9m qoant
.Ad ilainti
PMkiJCmii
cest * iniuientlo,' ne fliit son prnp-.c ofiice, car
ci'«) eonieude a exleiulcr a les iri^ncrul puruls,
' rhe poeks,' ale * French iMieks,' |ter imagi-
nation d*ini I'litfiit ijiie nc'st apiuirent per
aseun precedent paioU, a que Ic ' iumieudo' re
ferrer; Lt les parols me;iiucs secra prise Mn
* mitiori sensu.'
T
975 J STATE TRIALS, 36 Charles II. i6si.~TMl o/Thomat RMtwell,
a]| respects, both of grammar, and reason, and
law ; It is insensible, because it is im|io6Stble ;
and it is impossible because you must else
make two kin^ to be one, or one kiii^ to be
two, and tbc innuendo must serve both ways ;
which, I believe, your lordsbip will hardly un-
dertake to do.
And besides, my lord, there is another incon-
sistency in these words, * knbuimus nunCy^
that's contradictory ; hubuimus refei-s to the
time past, and draw^ one way ; nunc to the
time present, and draws another way: and
when there are such inconsistencies anil inco-
herences, how can any man make a judopiuent
in this case, where the lite of a man e8[iecially
u concerned?
But, my lonl, if huhnimus he tliat which he-
ingf first shall take pUce, then these words
reTer to any two kings thnt wc have h?.d, under
whom Poper}' hath been let in ; and so we must
run back i'rom Ilarrv the 8th, up to the con-
quest, nay, Iteycmd the conquest, tn»the Saxons
and other former kings, to the first that estah-
lishcil the Christian relipon, which was then
aubjec^t to the Papacy. And it will he hard to
construe them wicked kings for m doing at
that time; as any man's reading, thai knows
any thine of tlie^ history of Kngland, will ea-
sily tell Tiim. So that' it is unintcnigible and
insensible, e\'cn that way ; and, to be sure, if it
be 80, that we luive had two wicked kings toge-
ther, refoning so far back, it cannot at all con •
cem the present king.
My lord, I shall be short: I only stale these
things beinre yoii, and ivcoinniviid them to
your lordship's fousi<lcna1i"ii. Theu vume
these words, which ii seems nrc most i-elicd
uiwn. ♦ If they would stan«l to their prinriplcs,
* he did not ♦piestion, but thoy should be aide
* Inimicos suos vinren-,' hmnvniio the kin;: :ind
the government. Tliis is iho niosl insf nsibl.*.
as I apprehend, of all ; and it is iti th;* fatal!* ".;
part, it being there that the trcai»on must li>-,
if there be any. Now, my lonl, \\q tivst s»a^ ,
there is no mention at all of any enemies
throughout all the words pretcdt-Kl ; there is
DO averment that the king was enemy to any
My lord, I ^hall cite no books more
have done. I humbly' conceive, that ]
that great rule in the book 1 first men
and the reason of the thing together, >
subsequent authorities that I have citec
they stand so fair antl clear to avoid this
ment, that to tiouble yoiur lordship i
were to embroil the case ; therefore
say no more out (vf tlic books. Rut t
is a firm, rrasonablc, undeniable nde,
must rule all cast's that come under tl
son of it. .4nd I never heard tliat bo
ever contradicted ; but all subsequent
ments were agreeable thereunto.
Just. Withim. U'liat folio is it, Mr. \
in the 4th Rep. ?
Mr. Wallop, Folio 17. B.
Just. Hollozcaif. It is 's Case, h
Mr. Wal/op. Yes, Sir. My k)rd,
stripped the words of the innncndos.
will not, I am sure, put, nor can an in
put such a violence or force upon wore
make them treason, when in tliemselvi
have no such meaning. Innuifndos
follow the meaning of the wonis as the;
the reconi, and not to draw the meaning
wonlsaiW the innuendo; for you wi
(especially in case of life) press worda, o
them to speak more than willingly the^^
or intend. It is not the practice of the*
to do, to make any such stretches,
niniis emungit, elicit sanguinem,* 1
wrings the nose too hard, will draw ibrtl
that is the rule of thai great lawyer, i
Coke, who applies that saying to th<
straining of words; l>eyond what in tliei
they naturally and easily will bear. A
plu::) that God is not well pleasod wi
emupctions : n.'»r iJors the lew of the
all allow it. hut ahsoluiely Ibrhids it,
!:iw orKn-rhud spoaiis thus, • Indubii
, n^rnlilKiv;, l>enignior senPU9 est prsfei
i in all duinous, unco'.iain, and genera'
tliomost hcni^'u and candid inteqtretati
I l)o taken: so that if there should be
about ill r\sc vords. what si;nse they b<
it that the king was enemy to any ' in, the law of Ku;'!and do?s injoin yo
body, or any bod3^ to him : and there fore the ■ ship to ta\r \\io \vl\y iUm Wffi on the ngl
innuendo^ for this reason, is to bi i>(y^(:i;.'d ; and
the rather, in that il unLkcs the king and his
subjects to be enemies one toimotlipr; vihioh i
is an imputation that ought not to he aiiiniited ; !
and. I dan' suy, will not be hy your lordship.
Therefore, in this ease, to put'sucli a sense in .
such a weighty matter, beiug u nsattcT (.f fact, '■
upon such uncerlaiuticsi, witiirtut an\ further I
averment of the intention and ni< aning of the
speaker to be so and so, and without an\ thing
hut such innttendotj is very hurd : tor n(>\r !
pcrluips tl.ejur\ only from this innuendo v. t-vc I
pcrsy.uicd that* all tlicnko things pointed n|Km I
the king and the govcrinnent ; and dil tidvC it 1
that the lav/ was tm ; that the ivords intendetl ;
us much : then do they give their verdict of a '
luattf 1 that was never aVerred, and tor want of I
an avcrnifnt could no^er be put in issue, so ' ^
tliat the parly could hare a trial, whether he ^ iiou of the Vase
were guilty as iliu indicliueut sa) <»
and iiiuko tl: > most j'.i« ourihie const
that can he ot iljciu. We ..■ly ihon the
as [ coi^coi^c, siariiliii-,'' qniu; othcrui
wiih(»ut \\ic tn.njendi, an- insensible,
nncovtain, to nhat t'.i\ shoidd lu> ap|
to whom : and iIkm) it thoic >«hoidd be )
though indirnd in one respect I ihink
non*^, \etif th«>re should remain a doul
your lordshi|) iiud the court are to ta
vJtich is iiii- uKtst !iiild and grntit: May
biruingthcM' words.
My lord, 1 hhall not trouble your 1
fin-tlicr in th:> matter, tor I think it is
its own ligiii. and those tew touches
li:ivc i!fi^rn of that gcneial rule, Lsap
th.r praliculnr case iKfiirc yourlordsh:
I dn r;i qutsti<;n, but they \vi!l be ap]
ycui lordship and the court in their oo
therefore 1 Ia3' it
STATE TRIALS, 36 Charles II. 1684..— /or High Treaaom. [21S'
»'• ftet, •nd hoRibly pray, that the
Bt BMv be armted.
'oMeWen. M y loni, T am assiffnetl hv
1 tube of couiiS4'I for Mr. Roscwcll,
mer at the bar, ami therefore humbly
our k»rdsbtp would please to spare me a
tbe same side with Mr. Wallop. The
It is, this part of the indictment, hath
I, aocordiiiff to what our information
hy Mr. iVallop; hut lKN:ause there
! many words in the inrlictment, and
e ao, aonic of a higher nature than
Acftfere I hes^ leave to put the words
Las they lie, and 1 shall endeavour,
istfioD to your lonlship, to shew what
re in themselves treason, and what are
■m, thoagh they may be a great mis-
oar, and highly punishable by the law
the court.
Mnd, thoufE^ the statute of the 25 Kdw.
provide that for the convicting of any
WDy there shall be an overt-act,' yet I do
I, nor <lo I think, but that tliere may l»c
bat are an overt- act, and consequeutly
, within that statute; but then what
worJs these are, is that which 1 would
^ afler to your lonlship to discourse of:
' bml, it plainly appears that words in
btiy that are very evil and wicked,
Mt tnaaon, nor ore to lie punished by
f Aat statute of the U5 Kdw. 3. As in
^117. and iUr,. iU}^\\ Pine's case. '^
£ there spoken by I'liie arc most evil
I wordi, yd by all the judg-es of
jfttkay are am'ecd niit to be treasnii.
t^itlf hnrti, iora furtlicr determination
IjpiiM^wbat ^\o^d:i:l^c treason, and uhat
fv ae leave to inc-.itiun the statute of IS
^vfiich 1 uiiilerMund to be the statute
vbich the prisoner is indicted, and the
of that .statute : lor the tirst
is treason, aud the second
mat treason, but only misdemeanour:
M second brunch ol' the statute says,
any person siinll maliciously and ad-
' foUiih or alHiin the kin^ to l>e an
tar a papist; or timt he endeavours to
IBS Popery, or maliciously and advisedly
tfa^y printiui;, pix'achin:<^, or expressly
Bg, publish uitcr, ordcL'laru any words,
an, or other thin^rs, to stir uo the pcoph;
icdor dislike of the kiti^'s pi'rsou, or tho
itei government ; then he is disabled to
Vcurcisc any piuce or utfice, civil or
y,aod be liable t<» ^uctl further punLsh-
aa by the comiuun luw^ oc statutes may
Ukti in such casos ; by wliicdi, I take
>f sning to be Hue and imprisonment,
1^ poniihmeut ; but not the punishment
kttppaiated to th.; judgment of high-trca-
fMKofliibor membLT.
My lord, I humbly crave your
(jadgment whether this shall be per-
Mllie ooiiDsel slioidd enter into such
mi'wm ikm. The question, 1 take it,
fjpL 1^ f. 9M| of this CoUectioD.
that your lordship appointed to be 'spoke to, is,
whether this indictment as to ibrm be sufficient
tor your lordship to i^ivc judgment upon ? But
Mr. Pfdlexfen is yfoin&f into that which is a
far ^eatcr point; whether these words ab-
stracted from all their innuendo are treason,
or no ? My lord, the piisoner did not move
that in arrest of jud$:^ent; and" whether voiir
iords!iip expects any such thing shoulil be
spoken unto, that was not moved "or stirred by •
him, I must submit it to you. The jury found
that these words were spoken with an intent to
depose tbe king. ^Vhether that your lordship
will permit it to be argued, whether such words
are tn-ason in their own nature, is of quite ano-
ther consideration.
Mr. Fu//t.r/t/i. Good Mr. Attorney, Pray
spare us. \Vecome to shew that if in their
nature they import not matter of treason, then
the innncndos cannot help them, so as to- .
make tre<ison of them.
Att. Gen. Tndy, my lord, I did not un-
derstanil that it was your lordship's pleasure
the counsel should have liberty to argue any
such thing, as whether the words be treason,
Iming found to be spoken with such an inten-
tion ; but whether these innuendos have suf-
ficiently lieen laid to maintain the indictment in
point of form.
Mr. iW/cM/t/i. If 3'ou leave out the words
imnicndo'd, then sure we may s[)eak to the
words themselves.
L. C. J. I Milk yon, 5Ir. Attorney, either
you mistake Mr. Pollexfcn, or I do : For I take
It, that he is entering into the consideration of
these words as they arc laid in the indictment ;
that are uncertainly laid, so as that they will
not support an indictment of ti*eason.
All. Ocn. My lord, he is arguing, that if
tlu^y «ere spoken of the king, yet they woul(i
not be treason.
L, C.J. Mill ho say so? 1 dare say, be
vi!l not.
Alt, (Jen. He is arguing upon the statute,
what words are treason, though spoken of the
king, and wliat not ; \\hicli i take it, is not the
question now.
Sol. Ucn. My lord, we humbly offer it to
your lordship, whether it be according to your
lordshipVs rule and intestion, that he was to
argue wluihcr the woi-ds were treason ; or
only whether the form of the indictment, as to
liie inr.ucntioSf was good and suiticicnt.
/.. C. J. 'J'aking the words to be sufHciently
set forth in the indictment, and found by the
jury to be spoken of the king, esi)ecially the
last words: Do you think we would suffer
that question to be debate<l, whether they were
treason or noli' Ciod forbid. 1 will not sit
here to hear that ipicstion at all so uuich as
made or put, Pll assure you. 1 took him not to
argue at ail any thing that way.
Mr. Po/Zci/trt. Pray, my lord, hear me;
I am going' only to this; for 1 would not
offer any thing 'bc^yond what is lit for me to
offer, and for the court to hear : But this we
say, that the words, the effective wor^ki, are wi
4:
t79] STATE TRIALS, 86 Chables IL l6M.--Trial ^ Thomoi Roumdlj [2M
80 siifficieotly laid in this indictment, as to
make tbcm amount to treason, I am only
going to that.
L, C. J. Ay ; that in the stiiisrinip ]iart of
the iiuestion, :uul su 1 understood aim before.
Mr. FoUerftn. My lonl, I only mentioned
thatiof the statute, that there were two sorts of
words there taken notice of; to shew that I
thoii^t these wurds were nut within that branch
that is said to lie trt-ason.
L, C. J. Well, jfo on.
Mr. Folic rfin. I will keep myself to the
first clause of the statute ; for what I mean, is ;
this, Tluit if these words come not witliin that !
fuvt branch, which niak^ the treason, then !
^our lonlship rannot {^ive judji^'ment upon tliis !
mdictment. For thoufrh, my lord, it may be '
these words are extniordiiiary ill, and being ;
spoken or preached, may have an ill sense ur
meaning with them ; yet I would observe to
your lordship, there are other penalties and
Suuishments provided for some sort of words,
lan there are for others.
But then, my loni, let us consider the words
of the first branch of this statute. If so be any
person does com[)ass the death, or bodily re-
straint, or other harm to the king's person,
or to deprive the king, or levy war against the
king, &c. and this compassing and imagina-
tion does express by printing, writing, preach-
ing, or malicious and advised speaking, they
chall suffer judgment of high- treason. Now
tfien, all that I would come to, is this, that this
same treasonable printing, writing, prcac^hing,
or speaking, must be of such words as shall
intend the death, bodily hurt, restraint, or im-
prisonment of the king's person, or levying of
war.
My lord, having said this, the next thing is
to come to the words themselves, and to take
thcui as they are in themselves, without the
innucndosy and see what the natural sense of
them will be : And we will take them in the
natural order as thov are laid in the very in-
dictment, and found by the jury.
The first passage of them is, * quod Po-
< pulus,* i^c. (meauing the neojik* of Hngland,
* the subjects of our lord the king) ^ made a
* flocking to the king (meaning our said lonl
< the king that now is) to cure the king's evil, I
f which lie could not do ; hut we ^re they to
* whom they should come, being Priests and •
f Prophets, that by our |>rayers can heal the '
« griefs of the people.' N(»w, my lord, with
humble submissHm, it is plaiii that as to these
words, they have not in theiuselves any ten-
dency to treason at all, whatsoever rejection
they may m^ke upon tlie king ; they are the
wonUof a priest niagnilying i.is own oiKce,
and his power with God *Ahiii«;lity ; hut they
do not come up (I tliink; to this crime, ibr
which the prisoner at the bar stands accused.
Then the next wunis tliat follow, are these,
* Nos habuinius nunc duos iniquos R* gcs
* insimul, qui i»eriuisenint Homanaiu super-
* stitionem intrare in eorum cons)>ectu, Jkc. and
* who oaa be likenad to none but wicked Je-
* roboam.' My lord, these, I do acknowledn
are very wicked and bad words, espcdiulj
if they must be applied, as the indictment bu
set them forth, to the itte king, and his prs*
sent majesty : Yet these very words (under
i'avour) will not amount to the charge of bicli
treason. 'Vhcy deserre very severe puniu-
ment ; but they seem not to conoe up to soy
thin^ of an intention, or compassing, or »
signing the death, bodily hurt, or imprison-
ment of the king ; or the lerying war s({^nil
him. This I speak, my knd, with submiMoni
and 1 believe your lordship may be of the saon
mind.
But then, my lord, the next wor^ that
follow, are the words (1 suppose) that are rdiad
upon, to make out this accusation ; * Quod si
* ipsi starent ad fundamentalia, ipse
< timebat, dkc. That they should eve
' their enemies, as in former times, with i
< horns, broken platters, and a stone in a sliiy.'
These, my lord, seem to be the words in wkidl
the crime consists. Now, my lord, if tbcN*
words in themselves are so uncertain, or aadi
as do not tend or relate to the present kij|y, ar
the present government, to stir up seditMin ar
rebellion against them, then they will noi bt
treason, because they do not so reute.
Now, my lord, these words, if you take thai
alone without the former clause,^ Noa baW-
< mus nunc duos iuiquos Rem insimul,' te,
closed with the innuendo^ Uiat he meant fim
late!
can
government,
art. Which way can it bef 'If they
* stand to their principles, they should ofai*
' come their enemies:* How can thev be i»»
tended to be meant of the king, and nialoval
subjects ? Then let us consifler the words tw
go nfoi-e, whether they will help any thing tr
no ; ' habuinius nunc duos iniquos Regea ia^
* biinul'. These words of themselrea, atii^ar
the innuendo, do not express what two knfB
are infant by them. If you take the wwii
strictly, that' * We have had two kin^ avw
togeilier, insimul,' as the word signiQca^ i|
must l»c iwo kings at one and the same liflM;
But take it in the English phrase (as perbuA
thoy would ha%e it turned into English), « Wm'
* have luul now two wicked kings tOKethart^
(meaning the late blessed martyr, and Eia now
majesty), then it must be, we* have had imw
two kings successively ; but it is a
thing to render such Latin into such £ng
wluch s<>eins to he, in the nature of the i
theinseh os, such as will bear no such senaa ac
construction as thqt. And then, the ' qui papt
* iniserunt Romanam superstitionem intraie \^
* eorum cnnspectu ;* if the first words do Ml
in themKelves exprfss what kings were maaai^
these words that follow can gi\c no manMrfl
certainty to them at all : For here is nal ft
much as any innuendo; nor can the
that follow them * (qui assimilari poasiiut,' ^
which can be likened to none but wicked Ja
boam) in any sort, shew iny ^:ertfunlv |q \
lea witn tne tnnucnao^ inax ne means ma
\ king, and this, 1 see not possibly how thqf
1 be said to relate to the present king aai*
ernraent, to make them treason within ihii
. Which wa\ can it be ? 'If they wwU
STATE TBIALS^ S6 Cicahles U. 1684.— /w* High TrmM.
[98S
lOB to be tppUed, or Ofliitnte whom
r tint which is the next claii8e» if the
k of ell; 'Scduipsistarentadfiui'
J &€.' * Ipi* in all ordinary con-
in of epeech lo all language, being
lA to the former words (and so I thiqjc
le ia the grammar is and will be read by
eaaoBaUe person that reads) must refer
Best aateoedeat. And then, who are
hit are last spoken ofP It must be the
ached kings, let them be who they will,
rare meant by those wicked kings ; for
is no other person that does intervene, as
B ef, to whom they should be referred,
■mer words are spoken in the first per-
■d pkirmi number : We have had, speak-
the Dame of himself, and they that were
riitors, and then to come with iDfi, after
I MBtioned two kings, who h^ suffered
!y to eome in, and were to be likened to
changes the form of the whole
diotment has not pursued them, hat has
of that, to be quite
L It sbonid seem, according as it is
i the indiisCment, to run thus, and then I
i|— f lordship to consider the sense and
■vef them ; ' We had now two wicked
pstagwilifi, who have soflfered Popery to
n nnder their noses, we cannot compare
■to any but widced Jeroboam : And if
^vaaklatand to their principles, then he
ht but they shonkl ovei-conie their
I in former times, 6cc.' Why then,
" ^ to qprammar, and ordinary
a relative, must refer to that
i before, there is notlitng in all
ihdorc, but. We, tliat is, lie and
|i|iblhat iM^ni him, and the two kings
nbifeke cd'; and the two kings being last
bi(itmii&t ill ali grammar, I say, and
^Ae anderstood of the kings. Then let
1^ what sense we can make of it; 'We
mhsd two wicked kings, that have per-
jtol popery under their iiuses, that they
ite compared to none but wicked Jero-
■ : and if they stand to their principles,
M not fear but they (the kin^s) should
HMse tlieir enemies.* In all onliuary and
toduming, I cannot see how tliey can
li^ hot the ipii must retier to the regett ;
ihin * £orum fumhitiiontaliic, ipfwrum
a* if you take these wonis, as they do
if they have any sense or meaning at
etfMm, this is the profier and natural sense
■nniiig of them.
^Mia pretty hard to apply the *• Nos ha-
fc.nnnc du(n» iniquos lieges,' to the
•tarent ad fundamenuiia.' lu all
f be spoke it thiis, if it continued on
e, which I can say nothing to,
speak to the words as they arc
r indictment, < And if we do but stand
, I do not doubt but we shall
r enemies as formerly,' &c. But
I of ihe person, and, according
l4»nstnictioo, we know bow
The other seems to be
fof the words; but the in-
them wstead oi uhm, &v uc 4UU0 uwum.hot., ■
nosing them to have been spoken as the juiy
nave foimd them.
But, my k>rd, if they do not well bear that
sense, which I think they sbuidd properly ami
naturally hear, if they had been right laid, the
question then, whether we can make these
words, as they are laid, to bear any such sense^
as the king's counsel, by their innuendoi^
have placed upon them ? that is, if they,
meaning his auditors ; < should stand to their
* principles, then* thev should overcome their
* enemies,' meaning toe king and his loyal sub>
jectS. Truly, my lord, I cannot see how that
can be, how ip$i should be me ; I and mine
auditors should stand to their principles.
But setting that aside, come we then to the
main words. « He did not fear but thay shouM
overcome their enemies.' The gvM force of
these words lies in the word enemies. What
is meant by enemies? For all the rest without
that, would not signify any grest matter, with
submission to your lofidship, as I think : And
therefore here cornea the great harden, and
that which is the sharp sting of all this indict-
ment. And to make enemies to signify the
king and his subjects, my lord, is a very won*
dcrful innuendo, as 1 believe ever wss attempt-
ed to be made. So it seems to me, with submis-
sion to your lordship ; the word enemies itself ii
a word of so large comprehension, that it reaches
to a great part of the world. God knowa, man-
kind is so very uubappy, as that every one
hath very many, and too many enemies. Who
is not anenemy f A man scarce knows ; it is
well if he does. And this is a thing that'a
mighty hard, that so general a won! should
have so heinous a particular application.
There then rests the buruen of the case,
whether inimico$ should signify the king and
his loyal subjects. If in the natural grammar
the former words of *• Ipsi starent ad funda-
*• mentalia,' be, as I have shewn, to be referred
to the duos Reges as the last antecedent, then it
inuKt mean, thst the duo» Reges would over-
come their enemies, and then there is no hurt
in all theiie words, but whatsoever was spoken
is very commendable, and very allowable:
But if you would take it otherwise, 1 see not
how it c*an be done without the greatest strain
in the world of so general a word, to make
mimicos mean the king and his subjects.
Now, my lord, let us see how they intend to
help it out, and tliat is, by these mnueudet^
The nature of an innuendo bath been already
opened to your lordship by Mr. Wallop. I
shall not repeat sny tiling of that which was
said before, for that 1 cannot take to be any
service to the prisoner st the bar, to take up
your lordship's time in repetitionR. The hooka
have been cited, and reason itself will direct to
that ; for must ni»t a man be convicted by hia
own words, as well as punished for them f It
is not, sure, the skill of the dork to put in an
innuendo^ or of any one else, that shall be eon-
struedto make my words tu hafo any other
S8S] STATE TRIALS, ^6 Cuarlbs II. 1684.— Ti-ta/ of Thmuu kosewcli, [S8^
seiuie, than I that spake them intended them in.
If the words are not clear, why then tliey can-
not affect the auditory, so as to have any evil
influence upon them, to incite tlicni to sedition
or rebellion; for sensible words must influence
sensible men: But words that arc insensible,
can have no influence at all upon rational crea-
tures. «Then shall an innuendo make that an
offence, without \s hich it was not an offence ; es-
pecially so ffteat an oflcnce, as that ot* high-
treason? Surely not.
Besides, my lord, all our books are against
making any such construction. Unll's Abr.
1. part 84. There is a whole b«»d-roll of them
to prove, tliat innuendas will not help, where
the words in themselves have any inocrtainty
in them. The bare setting down the words
with innuendos are not an averment sufficient
to maintain an action, or an iudi(*tment. The
cases there urc indeed upon actions of the case
for wonis, which in reason are under the same
rule.
For, my lord, there are two ways to apply
words that are uncertain, to bring out the true
intent and meaning of tiiem, to \f horn they
are to be applied ; the one is by a colloquium
precedent, and where there is a colloquium
preoedcut of such matter as will lead in the
ause of the words, which iiithout it were not
to be understood, thcrp the laying that coilo-
quium makes the wonls rnnic to be sensible,
and there is thij» reason for it, whenever that is
done, the colloquium uaist i*oine in evidence,
and must be proved : But I never yet know an
innuejidoolfeved (o be proved. AnolIuT way is
this, where* \vori!.> 'jlvv. i'.iid in a drclaratiuti with
an averment pre cetlcnt to he spoken of sneli a
person, then the woids, uiili an intmcudo afu'r
that averment, ^hc^v stitliciently what Ls meant
by them. If so be soaudaloiis words are spo-
ken, as to say, ''Thy landlord, your brotlier,
* your mastor, \oiir servant, your son, is a
* tliief,* or tile !il;e : In these cases the words
in themselves do not express the man of whom
the scandal is raised, but they give such a de-
nomination of the man, that may by the hearers
he siiflicienily known. >Vliy then, in that
case, if in the declaration it is averred that the
plaintjtt was his lanillord, was his brother, was
his master, was his servant, was his son, anil
that thesif words ^\ore spoken of him, aiid
tliereby it comes fh be made apparent to the
court what is meant, and who is meant, thai is
well, and all tiiat nnistl>e ]iroved to the court
upon evidt ace, or the aciion cannot be main-
tained, by such means as this it is made plain
and demonstrable, tbat there can no doubt re-
main, either v. ith the court or the jury, to whom
the injury is done, and of whom the scandal is
uttered. And these are the only two wa\s
tliat ever I could observe were allowed to be
suiiieienc to maintain any such action : And
there the inuutudo comes very properly in to as-
siiil the averment, or the colloquium.
But now, my lord, here in this case, here is
nothing of that kind, but only a bare innuendo
that such and such were moBBt, without either
a colloquium that there was a discourse coD'
cerning such and such persons, or an aremiMit
that the words were spoken of the persons.
,My lord, I cannot tell what precedents they
willofler to vour lordship of former or latter'
times. We nave had but very little time to
loi^k into it, and have not that recou rse to the pre-
cedents on the crown's aide that the kuig*!
counsel have. But, my lord, for precedenli
that may have past sub silcntio ; witnout hiT*
ing the question stirred, I suppose, will not
be allowed by your lordship, and the court as
Erecedcnts against as. But 1 think there will
e no instance given, wherever any such
thing cams in question, that ever jadgnMBf
was given against the defendant.
My lord, this seems to be the sense and na-
ture of the words as they are laid in this k*
didment, stript of the innuendoi, and jovr
lordship knows what a case we have now be-
fore you. We are in the case of the life of »
man, which is much favoured in law, and if
there beany doubt or uncertainty, your lord-
ship will lean rather towards the isTOurabl*
side ; and if, according to tlie rules of knr,
words to make men criminal shall not ho
strained, or forced beyond their plain, natani
meaning, sure they shall not to make a nun
capitally so : For the greater the crime n, th^
greater consideration the court will hoYO to tee
tnat there be no strained, forced constmctioM
to bring the life of a man in danger : And
therefore 1 humbly pray that judgment mj
be arrested.
Alt. Gen. Alay it please yonr lordship f
am of eounsi>l in this ease for the king : and
notuitiisiauding any thing that has been laid.
I do conceive, that there is high-treason wdl.
alledged in this indictment, of which the pri-
soner is fuund guilty against whom I
niand your judgment. 3Iy lord, there is agieal
diirc.-x'iioe in this matter ; that is, whethct
the words nrc treason, as they were spoken If
him, Kud whether or no this treason, admitlaitf
it to bo trea<;on, be well disclosed by this iih
dictmcnl - For, my loni, I think to preach md
public BS^einbly, that ' we have had tiNi
* wicked knv^s togetiier, who have pennitlii
* Po|iery to ttome uadcT their noses,' and thM
{ to go on with it to * Stand to their principleiP
' (for so the wv)r(b are laid in this indictrnM^
* and they should overcome their enemies li
^in tbrmer times, »ith rams-homs, brokM
* |datters, and a stone in a sling,' is a
high aggravjition of sttch words. And,
lord, if you re.iicmher the evidence, as I
not you do, it was all spoken in a publio •#•
sem'bly, before 4 or 500 people, and they
spoken without any words intervening r
soever. These \\ ere the only words that
spoken relating to this matter : So that
mubt carry their own pregnant sense with thev
of exciting the people to stand to tlietr an'
against the wicked kings, or else they ara
no signilicatlon. And thns they are laid m 4
indictment, and fonnd by the jury to be opahk
positively to stir op the people against tfiaki%r
STATE TRIALS. 36 Charles IL l684^/or High Trmon.
[386
cat him, and to nue rebellion within the
on. This, I say, is positively afQrmed,
id dMm in the indictment. *But, now,
icr or DO these words arc in point of ibrra
I, tint the court must understand tliem
dation to the ktn^ and government, and
■igomait to st'u: up the people, is the
m I . For if they be so, then they are well
laop'port this conviclion of treason.
vlorlbaC,my lord, I would only first
bey must either import treason in them-
« or they do not If they do import trca-
I rhriiiiiliiiii, no addition of the person
raio^ whom tliey were spoken, as that
pcre spoken of the kinff, will mend the
or make it better. Though it be laid
■I much to be spoken of the kinff, and
e Bcrer m> much averred, yet if it he not
a to disturb the government, or to raise
Ml and insurrection, tlie adding a thou-
imea that it was spoken * de Domino
Se^' vouhl not avail. They confess they
■• pracedents to produce, and I believe
Ihej have not : And so they only go by
€ migunnent, taken from actions upon the
br wards : Whereas there is a great dis-
f m die case between actions of the case
■ii^ and informations or indictments tor
I Art are criminal or capital ; and I know
£*il look into the precedents that are in
ihe entries, and m the reports of in-
ptfm or indictments, they will find it is
amwtry seldom, or rarefy done, it being
^maa to no purpose, or as perfect sur-
ip^HbTthat such or such a thing was
lHbk^1leI>Draino Rege dc GubeniRtione.'
Ihflmaal cases, and not capital, it is com-
l^tfl^ of which tliere are multitudes of
■■i: That such a one lieing of an ill
^li fMe oommotion in the kiiu^om, and
^mUotky sfioke these and these words.
pM the constant form in your lordship's
lordship can remember in the
\ that were, or the indictmeats of
H that had spoken words relating to the
^if York. I can remember when your
H^ wed to say, * Never consult me, but
nr the ancient prrcL'diMits,* which I dare
rtribe to say are all thus, and so I shall
p.lgr and hy, it has U'cn in indictments of
n: And though, perhaps, one or two
H at any time be otherwise <lrawn (nf
kjct we can find none), yet, this hath !
Mbaeooatant form i'or any tbing that I can
eit kof very great consccjucnce to say
m 9i day, that what has for hundreds
■mtaselher been the constant practice,
'Wf^ Jf indictments and informations, is
|ppi^ it were to turn all things topsy turvy,
MMhr jgieat confusion in prosccmtioiis,
■anmclMae of the law, in criminal mat-
haB therefore shew your lordship that
'i a certainty as the taw does require
" 1 that the words
must have
I down in the in-
HiliBelhBgelse.
WmXty practised, and thai
bwva such, tliat they
rwhat we have laid down
But then they do lay down ^is fbr aground,
which I think I may grant them veiy easily,
and yet it will signify nothing to what th^
mean ; I would wipe ott* all these innuendoSf
leave diem out of the case, for 1 never expect
any heJp from them at all ; and then 1 do
agree that an innuendo^ without a strong, ur-
gent averment that the people which hear the
words spoke, and the court that are to pass
judgment upon them, shall say forcibly ap-
pears from the words 'themselves, who was
meant, aiid what was meant, will not support
the indictment, nor has the verdict tbrtitied it
at all.
But they tell you in actions of the case^ if
John-a-Stilcs be*^ called a bankrupt, if he will
bring an action against the party that spoke
these words, he must aver andamrm, that they
were spoken * dc Querente,' of that particular
person that doth bring the action ; and so it is,
the law is so, and the reason's plain, because
there are many John-a-Stiles's perhaps, and
the plaintiff that brings the action is but one ;
and therefore, if he does not shew that the dis-
course was of that John-a-Stiles, who brings
the action, it is uncertain who was meant, and
cannot be supported by a bare innuendo. But
I take it in these cases, wherever the prece-
dent averment is necessary, there must be a
distinct proof of tliat averment, as if John-a.*
Stiles be called bankrupt (in the case I men-
tioned) and he brings his action, and avers the
discourse to he dc Qucrente ; and he calls wit-
nesses, who prove the words to be spoken, that
the defendant did say John-a-Stik^s was a bank-
rupt ; and the court demands this question of
the witnesses, but do you know what John-a-
Stiles the defendant meant ? and lie shall an-
swer, no, we only heanl the party say John-a-
Stilcs is a bankrupt : it is apparent' that evi-
dence will not support the action, fbr that aver-
ment must be proved, that he that brings tlie
action was intended, and that there was a dis-
course concerning him. There must be. I
say, the proof of ihc avcmient to make up that
cerUiinty of the application of the words, which
the law re<[uires. And tiKTctbrc in what case
soever it lie, if the words he the only proof, or
if the words carry suHirient in themselves to
shew of whom they were spoken, it is ridicu-
lous to say there must l»e an averment that
they v.ere of such a one ; because words cannot
prove theuiselvps.
For, my lord, wlicrover words by sti-ong
and pregnant intend mvnl do cnrry slander, and
of such u particular per^nn, there the lHi(»ks
are express th.-itthor<* uteds i ' averment, that
they wen; suoketi (»i;' such a one ; as in the
case of Fleetwood and (uric, Hoh. 'Jt>7, which
is a rule lor ail causes n[Kiti a< iinn^of the case
for words. Sir Mii«»K Floctu immI bring receiver
of the Ci.urt of W jirds, h.in'/lit an action of
the <-asc Jii^Jiinst Curl;'. Inr ihjit he (ha\ing
sjicech with one \\ hoicwdotl) did ^peuk of the
piuintirr these wonls, Mr. Llcri-i\i'i- (Innuendo
the plaintiff) had drceivrd and cu/rned the king.
&c. JUe did there alledgc the words W be
,..r^.,
and
987J STATE TRIALS. 36 Charles IT. \6B4.^Trial ef Thmmf Ramtell,
mwkvio of tbe pkintiC In that case, upon
Not Guilty pleaded* it wu fouad for tbe plain-
tiff, and it was niored in arrett of judgment,
that tt did tiot appear by the wordti spoken,
Ibat they were spoken of the piaiutin : tor,
Mr. Ileceiver bad no propriety to tJiat purpose ;
HHithe Innueftdv ^voulci not' make it certain,
when it appeared to ibe cauit, that the Hords
would bear noceriatQty, tjiough he did ailed j^e
the words to be fpokeo ot' tbe plaiDtitf in ihiit
case ; because there may be many deceivers,
0r teceivera, and he must prove it particularly
vpokea of hunsetf But tlien tbe book is 9%-
press, that allcr a verdict, thoup:h lie did not
aver it waa apoken of him in bis office, yet
judg-ment should be giveo for the plaintiff) be-
4cause there is a nregnant, v iolcDl, certain sense,
that may l^d tne court and heartens to take it
so to be meant, and cannot be ctberwi«e ima-
giiied ; and therefore the court will not ima-
gioe it. Ai if a man spoke of an attoruey,
&ai he ia a knave, and spoke not of \m prac*
Itee ; why then the action won't lie : but if b**
he named an attorney ia the diclaraticn, and
the bearers knew him to be an attorney \ in
Uuit caie, it was ruled not necessary to have
Any such avennent ; for tbe words tliemseives
ditf import it iu tbe origins I case, that it was
apokco of him in his office, by the word de-
ceiver ; that having an aJlusioo atul ironical
tmrnmUmimt to the name of his ofiioe ; and in
the •tber case, because the hearers knew him
to bean attorney.
80^ my lord, upon these ground*, juilgments
have gone in those casew, which ihey them-
selves do so much rely upon ; actions* fur the
case for words ; wherever the words import
presnantly such a sense, there does u^t need
aucVi an averment. But I shall shew tliat in
informations and indictments this cannot be ne-
cessary» and the reason seems plain : tor here,
as we bave laid it, and as tbe truth is, we all
know it, there ia but one king and ffnc g-ov em-
inent ; and when w ords are laid to be spoken
to cxuitt commotions, or rebellions, or iusur*
WmMmiBf thev are but external declarations of
•the msA i tne treason that he is chariged with,
that is inward, it is the thoughts that are trea-
■on. Bat it is true, the laying that alone, that
he did so compass and imagine, without some
ftutward declaration would not be good in an
indictmetjt, any more than the outward de-
claration without the inward intention. But
the treason is, that he did imagine to raise
lebeUioo and war within the kingdom, to
atir up tbe people agaiost the king, and to
depose the kin^, and brio^ him to death, anil
deprive him of hiii crown and dignity ; and
then goes the indictment on, and savs, to the
end that he might effect thi^ treason,' he spoke
Mioli and such words, whieli by that new law
(that Mr. Potlexfen mentioned) will amount to
tresaon in speaking, 14 wdl la writing, I say^
it is positividy charg^ hi the indictment, that
he did thus and thua speak la stir up the people
lo rtbeUion and war agsiDSt the king ; and
then coaae the words, if tndetd any collateral
^//, oV
words be spoken, which its tbetr <»Wn
import not a tendeni y to incite and sttr up thi
people against tbe king, it would he luuig^
with ifintttndm ; and so it would he, ?f then
were twenty averments. But 1 think that thi
is as strong an avpjinent as can l>e (uhat
all know lo be true), that there is hut one I ^
and one gOTerniiient. And then he spnkd
words in a public .ij^stniddy, * We have I
* ;«nd so, and li ihey would do no and j
which carries forcibly and preg-na
sense, that it cannot be rntended to T
agiunst any one else, but sgainiit 1
the government; especially now
diet, when thr '■- f -^ ' ^^-^ ^- o
raise up tbe ;
discourse is 1;. i.
teoditig that way
Wy lord, we are now upon i1>e fot
iudictnieot* Put tbe case 1 1
expressions in it, as I may gr
if the greatest part import treason, sedil
rebeUion, and are laid to be done to incil
people to rebellion, and so foood by tbej<
then the indictment is well lairl, And Judgi
must be w-ivcn for the king. The ftrrt^
are highly derogatory to the king, and
be understood tg V- spoke of him. If iIm ,
BOiier had thought these words would not title
been treason, if be had demurred in
by that, as the jury tind it now here,
have confessed tt V) bave been sp( '
king ; for it is said, he apoke it to
and he spoke it of tbe people of fin[
to say that Populuf^ may mean th
France's people, as Mr. Vvallop wool
certainly no man can think that : For wh<
speaks m English, to an English auditory
public assembly, That the people um"
docking to the king, how can that kiag
the king of France ? and how can the
people, by any iateodmeiit, but a very fMgo
and fiti-avige owe, be iu^ * rtijf
the French people st^ ^
for lo be cure<l of tlie km- 1. ^'^- *'«
himself sai^s) the Freneh " >mkA*
power? No, That does fix a ^„ut.^ .iUily up*
our own king.
Pray, let us consider then, what
can the intendment of these wonla '
low, * We liave had now two wic!
* together ?* As for that objeetion of th«
hmmul, that it meaa» t^i^ ether at one
tiiat sure can have very little in it, it baifljf*
he taken according lo i'nrpm^»n uudtfrfttal^f
in our dialect ; and in r 1 n iay irabi^
bad now two wicked i. uar, every ^
will underatand it, we Um m-ni one aft« »*
other, because we have but one king •* •
time.
And then, ray lord, if the latter words *••
left out, with submission, I r-m.-.^,%« u|iOfi ^
authorities that are in our "♦« ^^.
would ha* e been treason u, niMtuXt^
25 Edw. 3, For, my lord, in a pubiie
biy of people, which is an unlawt\xl iMf
as this waS| to speak t uch woi^ df tilt
889] STAtE TRIALS, 36 Charles If. 1 684.— /or High Treason.
[290
wAnld he treason. For put tlir case, lie hail
collected a number of amitHi men al lluunslow
lleath, and there ex boned tliein to stnn<l to-
Ifcther ; that the kinij wat« a wicked prince,
aoil had niis^jfrn ernetl himself in the ailminis-
trai'An nf ttic trnvi ntmeiit ; I think that would ;
be iifM>x»ii ^HiJjin ilie law. IK the new sta- j
ti!»:\ li> sny the kiiii/ is a Pupiit, pbiinly is a *
Pr. '»..•;• ••/#■(.• ; Irit to vay th*' Kinjf is a ^ticked
kiufir, aii«t hns niisgo^trned iii»'ise!f in intrt)-
duciRs: Popery j th.ii in a bt«*i> further than j
whai. the act nrw:«;«; i V\rtiwnhr ; for vhe«ie :
veiTurds to stir ;i|) tlie {»C'»;)le apfainst the king",
«[iect<i.My prea«:!iH= ! i'l a p'lblie asKcmbly.
Tiien, Lny hud. you v. i\\ i::ke all these* \^onls
to^etli^-r ; first. P.'f.r ho \v\Ct :\xt\vu away that
great authority, a»:d ^j^reat i»ov.er that tlie f«i»d
rfHrjiveii hath ::'Voii to tlio V\\\<i^ in cuving" :
the kind's evil, and deflurd hiui :o lie a '
nickc'd |ir:ni'e, by suiii^rlnjr Popery to come |
\ inder hiss nose, end that l)e was to be compared ]
j ttnone Imt wicked Jor'»boaui; nnl thee, to I
' abort tlie people lo **taiid lo thvir priueiides, |
( ad he <1h1 not dou' I, nut they .she-.dffcnerrouu' •
tbeir enemies, wLu-t can b«» plaiijcr Treason? ;
For it is plain, that he did speilk to the people,
to the congrefjfation ; ai'.d thai can n^ vt:r In^
MDden»»ood othcrwi-e by thf* eouit, nor by the
ketrers. For that intevjiretation, that the kin^
shouhl overcome his enemies, it is forei^ and
ridiculous, and not to i>e ima^neil by any
body, tiial has, either sicnse or ix-ason* about
tliem.
But, my k>rd, I hh.all leave all this (the Jury
having now found it) to shew what preeedt^nts
v^e <^Hlld prepare lor vour lordslii|> ; how
thinus 1^ tdis nature, have bten used to Ije
drawn: For we have miide, fur the Hitle time
we had, as ((oimI a search as we c:ui ; anil 1
have found several: And iitdecl, I cannot fuid
one otherwise, than as this is. And for late in-
fbrniations and iDdictment*;, if vou cxniMiuethe
clerkn that now are, tluy will toll you, that
there is not one othiTwise : But ti<at if it b<'
said to be done with an intent to raise rebel-
lion or war njpiinsl the kinv;^, or sedition, or the
like; and then say, lie spoke h\iv\\ uiiM sneh ■
wurds, that is suHirient. l*Mt f will sli<w your ■
lordships soxi\^ aneieuier prereilents, soiue few j
which will .shew how tiie iiiactice \\<a^ hereto-
fore. I
The tin.t is 3 11. a. Hut. 17. in tl.i^ Indict
nent against my l.)rd Grey of hii^h-tn ason
ifter the (general eharnfu of in.ii-luiiHti:;^ th(
, destni.-tion and dtatli of the kiii;^, and sub- '
Tersion of the g-ovfrument; it is said there, ,
i that prodilurir he did spcik ili{-se words, !
* That the kin-^'s grace sli(ndd l;e dri\ vu out .d" j
* tlie rfului, and tin- pr.ixe's jfrr.cc should I
'never '»u% cet.d.* .\i».! \\ is not uvprml that ]
these \i oris uore sjmUj :: of jI:..» kiii'^f, and ol '.
theprinc*'. Uf>v wns ilieiv an;, lu-i'! \\ sliouUl bo .
irwtd ; li»r the w.irds pl::i' !y ijoj'oit thev '•
•ere s|Kiko'.i of ihem ; r.iuJ iUv. i . , ni'j; it, that It
was to rarse sedition wiiliiu tlJ* realm, wns
ntticient to make thcui hiufli -treason.
' Then the uea^t is my lord Cobhaiu's Case,
VOL. S.
1! Jac. Scssione Ima ; for it is one of the great
records that lie in the che.<tt^ amongst the' Ar-
cana. Uut by tlie iHiuk in the otiice, we have
a copy of it ;' but thei-e is the record in the
chest, and there it is, * i'osteaque 12 die Juuii,
* ultimo piroterit, ac diversis aliis diebus et vi-
' cibus, tarn posteaqunin antea, dixerunt, s.Scc.*
(for there are 4»tlier del'< ndants), proditoric
* there will be no t^ood till the kinif' (meaning^
our sovereign lord the king) * and idl hiscubbi,
(nieaniiijtr the children of our said lord the
kin«:) ' were quite taken away, 'Ncc' I leave out
tlie t«^r'nend clia:-j;e «»f t!o'*niaehiniition and
contriviiio^of the dt-.'iih oi tbe king; init to the
intent to elf; et iIim! feaso!*, i.;ifh wenis wei-e
spoken without \\vy :i\crjner.t. that they were
sjiokin *<!.•: resfo."' There ^^asno meii'tion of
the pr<i»eny of the kiiijr before; or that the
eubbs that w *•!•<• sji'iken oi'wi'i'O ihe kiiiir's chil-
dren ; lii'iiher would the vur.^ls * regalis iiro-
' genies' answer t!io Kn^iu^h word ' ciibos ;'
which was a u ord jduisivcly mentioredby him.
Hui in that case it wis hVid to lie a good in-
dictmfiit; and sir Viuiter Kaleigh was con-
demned uptin it.*
Anotber is Williams's Case ;f and that's
very like our fa>ie in the l'.:st pr.vt ; that is, the
first words iiisisitd up-'^u are Isi.id positively tf»
W sjjokon *d* kire; ,!:'i;ves, by an innuendo,
Pas.-.h. 17 Jat". i?.t. 1". tl:":vr I'fier the ' Ma-
' ehinatiS el ir.terdri:.:. \-<'.' ii is laid, that he,
such a «!-^y «;fSemeo.l>v»i-. * ;iv.» M!;>riiM!evisavit'
a trea-oiiable boil* called I* i'::5jm\ Ass ; where-
in there are .^\\i\\ r.i.ti such irassages applied to
the kinir by the iw«.<cw</<>. Tbe*re is nothinj^
said of that, to be spoken of the kingp, * de
* rege ;* but the words of the book carrying"
their own plain sense and meaning' in them,
that tlii>y must b^ intended of the king^, and
the goveVnment, that was suftieicnt to maintain
the uidictment ; aiul be was execuled. The
innurnf/us are not inaterial. If it can have no
oilier sensc>, that is eiioegh to maintain the in-
dictment.
lily lord, in Fitzharris*s Case,§ which your
lordship sr.id jdl the eonrt rtinember; part of
iIh^ li'/. ! v; laied to the duke of York, l)y the
letUMii J.) of y. and sometimes only called by
the letter K and the king hiniseU* by the letters
CV/. And the innuendo is, meaninp^ our so-
vereiq^n lord the king ; and there is nothing
avei-rVd in that case, and ind(?tHl there can he
iKithing averred ; for by the unpoit of the things
it must have that sense.
Colonel ISidney*s <'ase,|i my lonl, youMl
* .Sre '.ol. 'i, p. 1, of this Colbetion.
f *<et; vol. V, p. lOUo. In Shower's Re-
port of this Case ol Itosewdl, tht; ( Iiief Justice
IS rtp-CMMitiMl lo lia\e said to the king's comi-
sil, in WilliaiuH'sCnst", '^ the book was de«li-
euiod to tlie kir.ij; and, I \m\\ teil you, that if
\on U:\i\ laid it t'.iat le- sptdvc tbov'e words of
the kiiijr, *uul yy.i bad pr.>\ ! onlv the words,
I would ii:\(''i:rt ;i to •Ik'Ji'.v whether ihey
belii^cd I'.ioL iio v:}»'»lvi' the word- of the king*.''
§ Sec vol. tJ, p. CU3. It See vol, 9, p. HIV
U
991 J STATE TRIALS, 36 Cuaelbs 1L
fiuil to be the same : thciv's no avermeDt ; but
the wonis of the libel are brought in witli an
innuendo.
And you have another indictment at Salop,
SI Car S. One Pitt was indicted of hiah-
treason, and con\icted for these words, * Ifthe
* kingshduld hanff or banish an^ of the papists,
* his throat sh«tli be cut.' This is laid in the
same form in ilie indictment, as we ha?e it
here in our case. If you please it may be
read that he did ' ad?isatp, proditorie,* speak
aucb and such words, * if the king,' meaning
our sovereign lord the king, witliout any pre-
vious discourse of the king, or saying it was
•poken de rege, * should bang or banish any
' of tlie pa]>it4i* (quasdam personas mala dis-
* positas, &c.' innuendo) * nis throat sliall be
* cut' He was convicted, I say, and I think
was executed, though I cannot directly tell
that : but this is the record ol* his conviction.
So I take it, it is, with submission, that the
precedents go all along, both in criminals that
mre not capitals, in indictments and informa-
tions ; and also in indictments for high treason.
The charging the words to be spoken to stir
up sedition and rebellion within the kingdom,
without the help of any averment whatsoever,
18 sufficient ; that is a strong implication tliat
Ihev are spoken of the king and government.
And, mV lord, as to these words they could
■ot be laid otherwise, than they are in this in-
dictment ; for this is all that the persons tliat
are the witnesses swore was spoken. Your
lordsliip remembers it, it was so, when they
B'ere here, tliey could swear no more. So that
to have averred that he K|>oke to them ' de
* rcge et gubernatione,' would have put a proof
upon us, that our witnesses woulci not nave
come up to. We must have proved a discourse
of the king and government, and a swearing
of the words would not have been a proof of
that. The jury has found that this was done
to stir up sedition, and to levy war ; there-
fore, I conceive, according to the constant
course of tlie precedents, there is no need of
any averment; but the wnnls are well laid,
«nd well proved, and he well couvicted.
To say, that enemies is a very <veneral word,
and that we have enemies of all suits, and that
therefoiie a bare innuendo cannot make it mean
one more than another, is odd in tliis case :
Ibr I would fiiin have any mau assign me what
sort of enemies he could be thought to mean.
In such a discourse he could not inea spiritual
enemies; because the instiuiuents hat tlu*y
were to be destroyi^d with, were carnal wea •
pons, broken pitchei-s, and a stone in a sling.
These arc not tit for overcoming spiritual ene-
mies ; but they must be such enemies as can be
destroyed by such instnimenls, camul entinies
that are to be vant|uished by outivard force.
And tlien what enemies can such a public, un-
lanful assembly have, but the govemnient .''
AU that arc oi'tLeirown sitleand party are none
of their enemies. And it cannot be taken dis-
triUitivelv, that evary particular man has his
mfiiuyf tuat is a Ibreign ondorstandiug : but
l684.— TKo/ of Jhmm RoieweU^ [S9f
when be spoke to the congregation in a con-
venticle, that tliev should overcome their ene-
mies, being so unlawfully assembled, that must
be the government. And bad he not told ^oa
before, who were the enemies that he plainly
meant ? He had said, that the king was a
wicked man ; and according as he represented
him, an enemy to God and man by introducing
Popery into tne kingdom. And you are to
consider the time when, and the place where
these words were spoken. We know that in
these conventicles it has been the constant cry,
that we should be all over-run with Pdnery, and
the like : and therefore, that is coniuteraMe b
the case.
Mv lord, I make a great difference between
wonfe spoken in private, and wmds spdun in
a great and large assembly. It is tne nme
thing as if it had been spoken at the heed of
an army ; especially when people meet con-
trary to the laws of the land in defiance of tko
government, and gather together in tncbgrMi
multitudes ; and have such diaooursei and
opinions broached amongst them. 1 cannot
see truly, how it is possible to have been better
laid, being sworn directly as it is laid ; woA^a^
pecially being ibund to be all spoken to die"
tlie government, and to raise sedition
rebelRon. Thereibre I must submit it to ^
lordship ; and pray your judgment agaiMlbt
prisoner for the king.
SoLGen. My lord, I b«flrlpareto add out
word on the same side. That which I rinJI
apply myself to, is to shew that thia is a i
good indictment, in the form of the in ^'''~
and that upon this matter which the {
proceeded against ; for it could not be better.
My lord, the tact charged upon the |
is as Mr. Attorney has opened. Then
were spoken in a ccniventicle, *• The peoplit
« make a flocking to tlic king to cure the unn
' evil, which he cannot do,' lee. These are m
words upon which the prisoner was co
mitted : tnese are the words u|M)n which
is proceeded against; and these are the woi
wliicli have been found against him. Ani^
my lord, more words than these are nH
alledgeil to be spoken by the prisoner, nof
prov»l to be spoken by him at bis tliol
upon this indictment. Therefore, if
uordsare high- treason, this is a good in
ment in substance, if it proves so too in i
.'\nd whethtT these words are not themselfot
treason, 1 shall not now speak, but bhall on^
go to shew, as 1 said, thai it is a good indielf*
ment in point of furin. Fur these words am
his crime, as sp<»keu in tlii^t conventicle; an4
the only crime of whicii he was accuoed, and
of i^hich he is found q^iiilty.
Now, my loi-d, lei us sec how the indictmcil
is. He is charged uitli compassing, lan^-
gining, and intending to raise i-ebelUon, adi -*
levy war in th«i kingdom, and to depose Atk
king ; and to bring' the king to dcstnictiiNI|
that is the charge of high treason, in tbekiai.
of it. Now, as that is the diarge, it ia A
absolute necessity to alledgc . an OTert*ii%
STATETRIAL8» 36Chahle§ II* i68l.— /<^ High Treason.
fsgf'j
irludt miHt t^ |irov^ tt>o ; atidiftlierc be not
tftorerVact^ the indict oi^ot isoauglif. Well,
thia, the trrtson is coin{»ju»Mifig theaejtth of the
111^ to rai«« ^ition, and levy
uve oTert-«rt churgetl \i\w^
\\\h}\ to bring such Kb wicketrmirposes
1I» be diti traitrroutly speak, [niUlbh} and
^be words of the act of [lattiiiineni, iu
IS Ci. f ,1 in no unlawful assf^mhly, in the
■pesfuce of diveri of the kind's Ruhjocis^ these
ord« that I rcfteated before to your lordship.
No»r, my lord, I ask ; are these words trea-
[too ID l|icfiitel?pft« or «re they not ? If they
of theriificK^efl^ then the indictment
dj g9od in form, witliout saying-, that
! the words of the king, or of the
e of En^laod, suhjects of the ktoff. For
they do imp»rt thiit of theni salines, or
fdonoi. !fil r«ortitof them«elres,
rsijing thai ! L them of the king-,
the people, would have been imperti-
idle, i>pcaii*j*^ it is a tliiog- manilestly
f iiaelf. If they do not jmport this of
then bad it been charged, that
W«T« tpoken of the king and of the
pvople, this must hare been proved.
TbtfQ 00 then, my lord : if it must hare been
»fcq^ it mu^ have been prored either hy the
Uiemitetres, or by something else. If
m* to be proved by the words them-
rn \ why then it returns to the ohl question,
f •« nee<i not altedge it. If it were to he
tjtei by fomeihing else, then the fault is not
I di« indictment, but it must be want of other
r thin what our witue-sses would pro re ;
lun iure, would have been a very
I in us to ha?*^ drawn upon oorsches.
*ilie vftiv^s ittiport of themselves the
to be of the king, and of the people
'^i ; then it is (dain they make the
words, that they do not import in themseUe
flucli a rneauintj. And Oierefore, 1 thmk, with']
suhinissioD, 1 have m.iinlainod iho formof thtH^
indictment beyond all tHjnlradktion ; and not-,
withstanding all their objections^ it is a verj"
tfood form without the words * dixit de re^e» vc
de populo/
Ah Mr. Attorney said, it is necessary, mj
lord, in actions on 'the case for dander, to avcf
* dixit de querente/ because he most ascertairi^
the nerson of whom the words arc Sipoken, t<i
be the very plaintift'; for there may be divert
of the same name : and you must always, upo
a record, ascertain the person, to entitle th
])laintiir to the action : but where ivorrls ar
pregnant, and fuU of themselves, there
no averment in such a case ; which w ithou
sucli pregnancy w*ould be necessary, and if m
done, the action would faiL As, iu that i
that was cited by Mr. Attorney of sir M\\^i
Fleetwooil ; if it had been that the words wef(
sir Miles Fleetwood has deceived the king:,
would not have borne an action, unless it ha
been averred to have been K}K»keQ of him as (
cozening the king in his office : because ge
nerally to say a man has cozen etl the
will not bear an action, it is so loose. Du
when he says, Mr, Deceiver ; the ironical nt«
of that shall not excuse him, but rather <
monstrate both who, ami what he meant ; that
it shall be applied to htm, as doing it in his
office. And, bemg so, it must necessarily be
understood to be a verj' great slander ; 'and
then it needs no averment. 8o says the bfxk.
Ho that where words are plain and full, c.cn
in an action on the case, there reriuires no
avenuent : but in indictments, they being for
offences against the government, the very an-
cient forms used will govern the case, as well
as the reason and nature of the thing ; that no
of themselves, and there requires no | one can be meant, by such sort of wonU, but the
iivvndii.
As oow, for instance, my lord, to change the
words a htile, to illustrate the case; as sup*
t ti ha4 been charged in the indictment,
I bo bring his wicked purposes forth to effect
edid speak these words in such an tissembly,
^vicure to yourselves arms, and make your-
"" idy by such a day, and go to nhiie-
ad kill the king ; would any man have
ETf, that it was nece-ssary that we should
Jtn the iiiitictment that he '' d)x:it de populo,
^ '*?iide R-^gt?,* so and so ? No, cei-taiol v, it ia not
ttrosoary, because the words plainly import
iMr own meaning*
So here in this ca»c ; if the words them-
Mlvct neeevtarily import to be sf»oken of the
loigt it is as impertinent here to say, ' dixit de
* R^^ dixit de populo,' as iu that case ; because
K b no more than what thf y necessarily and
naturally import of (luinsclves ; which shews
that this averment, tiiat thev would have, is
alaolutrly immaterial ; and, if Jt had beeu
ihirgrd. would have reqtitred some other proof
ikMI the words themselves. And so the tault
^BUttol b«» at they would alletlge, tn the form
•Ctlkt btomeut y but m the substance of the
king and the gov ernmcnt : and for that I rely
upon the precedent* that have been cited, that
the fonns wew always thus. The precedents,
with humble submission, where the overt act
laidiu th(? indictmcMit, i;; by words s[>oken.that
it is said, * dixit de Domino Rege,' ^c. There
is not one that dues ever carry it so, but the
forms are constantly iu the same manner with
thi< that i-i now before your lordship, without
such averment, as carrying plain surplusag*
10 aver that which the words necessarily im-
port.
To say, my lord, in this case, as we bear i
objected on the other side, Thai these lorm
passed ' sub silentio/ and no such olyt*ction
was ever made, I say, that is no ohj'-'ctiun to
our indictment : fur the at gument sui^e turns
the other way ; because the forms ha%«* been
constantly in this manner that ours is, thcrdbro
tl is assigned, that what they otfer, is no ob*
jection at all ; for, douhtksx, m so long a tract
ot time, when so many learned men sat on tlio
bench, and »c many learned of the king's <Miun-
sel attended the king's courts, and so many
persons have been indicted, tried, and sutfcred
upoQfuch it dictments, who would have saved
995] STATE TRIALS. 36 Charles II. l684.— Trtri of Thomi Ratemlh [996
their lives, no doubt if they could, by ninking
Kuch advant^igt" oC such an exception ; that is
a strong arj^uuii-ut, that it was never thoug^ht
an exre|)ii«»n. So that, besides the reason <if
the thiiur, ttio {iiwcciiuiis art' uli witli us, which
hatii a!\v;iv.<> lii-vu ai.'.:ur.iUe<l a good artfuincnt.
r»iy lord. iiaiT::! !ii;iuy of us remember the !
ir.ili.' tiii^nil-i i*:' iutier liiUL-s : paniculari y that of {
coloiK'l Mdney : lhou!;jh there is another overt- |
net UiU iii tlial iudicniient t<>o, yet that is no-
thiii'j to this ej;«L\ 11' there hi- but one overt- |
act laid in tlie indictment, it mnst bn proved >
by t\v<i uitnessvs ; but if theie be several overt-
acts laid in the indictment, and one is ptuvHl
by one witness, aod tlie other by anotluT wit-
ness, that is suHieietit to maintain the indict-
inent. In 3lr. Sid:ie;/s case there was to
one fact but one witness ; and tbercfore it was
nt\xrssarv to lay snotherovcrt-eet, which was
prcviMl by otla-r witnesses. And one overt-act
comos to this point that i:« now in cpiestion be-
fore y<»ur lordship. It is in this form dirf»ctly
M'itJiont an\ averment that the words were spoke
or written "*• de Kegfe or de Ilegimine,' but that
the book contained so and so : and the tliint;
itself speaks itself of whom it was meant. If
therefore the words in that case, being" proved,
were necessarily to be applied to tlie go-
vernment of Enjifland, there need no averment:
No more does there here.
My lord, not to trouble your lonlship
fiirther in so plain a case, the pri*ce<lents bein^
thus, and it being knoivn to l>e the constant
practice in point of form, I would tain Know
what they would lia\e had us done. The wit-
nesses swear these are the words, ar.d there ]
arr. no more ; how thou e:ui we frame a hitler ,
indii-tmi'Mt, than iiptin the words that tln^y •
swtMr were i.p<ikeni* 3ly lord, we pray \our j
judgment for tlu* kinj^. " ' \
jL, C. J. >Voll, ha> r \ on done ou Imih sides ? !
Wr. AlUy.niti, Ye.s, n:y lord. j
L. C. J. Truly fur nj\ j)ari, I think this is ,
a ease (d'l^^rent c;;)ns(.M'iMUCe on the one si.le, 1
and on »i»e olher. I hear i; is suid theiv are j
abundance oi'preertU'nts in the ea&<', utiw. ha>e I
been itu-ntiiMud, and it is n< ix-ssary wa sluuild ■
look uj«'.ii ihi'sc precrdi'uts, hcline we <!e!i\er !
nn\ ah.xolulc jjpiiiicn. JJjit. tn:ly I n;a..t bay, '■
IMr. Attdrnrv's prretMlcnts hu\c with m?i^ci'v
Jiliie weight*. And I mustilifl'er iVom Mr. M- I
turuiy in antdher thin*; : tor if i:: t-iuic the last
wcinls v.Arc out ol" the ea^**', of * s*».Hli::;j lv» ■
•their principhs. and o\e:\N:i.;ijiiv ihcir one- '•
' mics,* do \<Mi liiink, that hcenisr it i^: s;.i.| jn I
tilt' ion* pari of tin- iii'.irtuii n'l tli.ii W \\.Ui\m"\ |
tiie d^.ath of tin Wiuir, i.n.l to raiv n-hciliuii. j
and tlu'reloH' sij'l, lfnri' * wan* mn wjoke*!
* kiiiys uho m:1!'« r.il t'!>|.t ly lir.ilti il . i.-nosis, .
and wiTV ti» b:? iikenrd ii> Jn-ib'-ani ; lij..: tisul ,
wouM U* a g^immI indietii:;*!*! for hl<;!i liC-aMUi '.' 1
TIk'o it wni' plain tin* mX of parl::'i..i ut, i;; j
r'ar. '2. was n»ade to no purpose. I'er thou:;ii
1 doubt not in the least, v.'onls nia^ be an oven- •
act (A' lii^li-ti'f ason, in compassin;^ the death of -
the kin^, upon the stal. of C.> i:ldw. 3. I make ■
no ditiiculty iu the world of that: so was my
lord Cobham's case, and so w]pve the
in Harry the eiyfhth's time, * We will drire
the kin{j^out of England,' or any things of that
nature: 1 say, that woidd be an overt-ad
sufficient to bfin{; a man within the compaaaf
the statiite of *i > Edw. 3, because those are
ex'pn^ss words tending to the death and de-
struction of the kintf, the deposiu^r him and de-
priving him ; and they call him the kuig. But
if a man comes and says, That such a one,
with a pu!*pose and intent to destroy the king^
said these words. That the king could not cure
the kin^jr's evil ; that's not such an overt-act at
to make ^ood an indictment of hi^h-treason.
And to say, that the kiiiif introduces Pc^ieiy
under his nose into the knigdom : why it if b
very lii-^h crime, but it is prescribed by the act
of parliament to be prosecuted only as a .iiui>
demeanour, and punished b\ Pramunlrc, If yon
look into that statute, you w ill tinci which waj
the words shall have*a tendency, that are to
convict :i man of treason ; that is, that teirf
to the imprisonment, bodily harniy death ar
destruction of tln^ kinv^, or laisiuflr iuiiurrectioB,
and rebellioii : or levying; war within the king-
dom, that is hii^h -treason, hut words thatM
nut nceessurily tend to any such things ; ■• ti
say the kiri^ is a IV.nist, introduces Popery, ■
iHrnishly udecti.'d, phrases that some people de?
ii;rht in : tl;at has a peculiar punishment ap«
poi:ite<l to it by this act. And tliis is all takeo
uureof, to shew the judm^s how tuey should
proceed, kun^ careful of leaving;: it loose, in n *
^rcat 3 case as hif^^h-lrcason. And tlie |Murii>-'
nient seems to be the more careful in il, fao-
causc they make the treasonable words such M
oiiVnce, cJnrinpf the kiujL^'s life only. Now, ■•
Tilr. Solieilor puts the case, by way of illusti»*
lion, in oJier words ; 1 make no dnHculty, bfll
to hid men pre pare arms, and ^) to WhitebaUi
and kiii thn kinir. would he rauk downngfat
tirnson. Would any man in the world
to aver, t!:at that were an overt- act ? No i
\Wi\\\r wiM'hl. l)ul if I will say, that to<
pass aud ima;;ine the kind's death, he bid I
rise up and p* to AVhliehall, and they
(k.crtome tiieir enciuies, does that import tilt
kin;;? There is no necessity of that. The kiag
cannot b(.' said to be an enemy, unless it bf
plainiv declared b\ the party himself who lli
iiK':.nt. And th( n t> say, how' could it be madt
b« :'i'.( t*. no floiibt oi'it. il nuL>:ht easily be madi
b. tl( r ir i; luui h. : a i oii.sidered of. * For if yoa
hu(i f m:i}" a:id u\t.riri!, that these Viords Wfll*
sMOi.i u r;:ji< '.ri-lii«^ the king" and the [teople «f
J.nu^l:.>!il, 4 js-.'uiiiU il v.oidd have made it mora
cert.iiii. ( do :ui! h.Mid myscif now in luy o|dv
nioM, liy M iiat i now tfdfyou ; but I ani only
IiK ..ki-.iL^ t!ie nutter. If you had said, tliat M
b:!i«i, if I'.c will .stand i<) our prineiplesy we sbal
ili'>.in>\ ti!'.'!ii, I ili!:ik it \\\\i\ made the caio
stiOii;;t:r If ii times : hni you have not sodoMb
Indeed, I um u-.?t so iiiud in n:y imagiDatk%
av tile counsel \\)v the prisoner seem to bo|-
* That we have had iwowiekcHl kings tOflh
^ ther, who have suffered Po|)cr> to eoiue vaS^
' their noses ;* that thercibrc we must run it m-
S97] STATE TRIALS. 36 Chablss
II ki>g Etbeibert, and I do not know who ;
m, thftt plainly in common English s[)cakiDpf,
■cans two kings successively ; and it must be
■ade a strange, furceil construction, it' wc
thoold interpret it, tbat he did not s|ieak these
Mda of the late blesaed Martyr, and his pre-
snft majesty. And liecause eueinies is in the
ell number, therefore to make it nonsensp,
uae one is destroyed, if. the wonls had
well laid, as they mi^ht, therefore it
have no relation to him that was left, 1
n. iGU.'^for High Treaion.
[298
•ly, wodM make a stniifre furce«l constrnc-
tiBB. Tbat nii<;ht be well enough, if the
umAi had been pro|KTly laid. Jiut wlieii
TMCome to s|>eak of etieraies, innuendo, the
by and his subjects? how can tbat iMssibly
kef For you had talkeil of nobody before that
Ihqr are said to have a displeasure to ; and
J without sayin!^ that the kinG; is an
y, to say, ' Stand to your urincipk^s, and
*jm shall destroy your enemies,' innuendo,
Wt kiD^, is, I doubt, to stretch it a little too
fe But whereas I have put the words, how
Ittakthey should have been laid; says Mr.
i#Biw, Tlie u-uth is, Uu'y were uot so spoken
•ysa wouM have thcni laid, hut they are laid
alltty werv spoken, antl as they were sworn ;
lis a point of fact to lie left to the jury,
r they aimed at the kingr and if^i^eni-
■M^ar not. Do you think that an answer 'i
V« it fKmld bo the same argrumcnt in an
HiM if die case lor words : Where it is
flMitaMt be ' dixit de quercnte,' you do so
•ii ML Mt declaration must aver It, and 1
■■ft|H«a it toil. Iff do not say it, though 1
IHStd^dnt will not maintain tlu: action : if 1
diSNltaod not prove it, it will not uiniutiiin
lliMvation ; all is naupiit: and what is
. .* in this case ? if vou hail said it, that
ave directed the jury plainly, u|M)n
ibe words as laid in the indictinent, to
i w hat was the intention o« the party
% Ane wonls. These are things (I must
Mi6») that wontieTfuliv xtei^rh with uio. It
■•moof: of capital oflencc, when: t!ie life of
• ■U is concerned. If the preciMlents have
flssBe so, thi-rc is some wei{;ht in that : but
if w precedents lie only such as yuu have
When of, words directly tellings who is meant,
fhgr have n«i manner of'likeiiess to the words in
Miiaifiilnient, because tliere tliey could ni:vcr
ilHrt any thiu^ else.
u ibe wOkX |ilar.f>, I am stumbled at another
tiw, 3lr. Attuniey, and ihut is, the dirlcrcncc
; if tte persons in one ]Kirt of the wrirds, and
ftlSlbcr. Yon have be^un in !!:(; first piTson
|knl| * We have had two wiek<jii kin^ to-
'MMTy' and as tlic l^atiu words arc,'* Nos
*falaiiniis nunc duos iniipiits l(>i(cs in«iniuK*
■laArrwards you say, and if the\ , i/^M, * will
' ^^mk Ift their principks, he did not donht hut
Mr should ot crconie their eucmies.* It hud
■tWai til ha\e laid them, as (et rtaiuly in
MB iiiidtiiitandin)() they must he lK.lie\cd
onr
ould
applicable.
■MhcB, * If you or we will Mund to
■ffka;' and then the my innueado wo
him vore icotibb lad applicable. .
Sol. Gen, But, my lord, it was sworn ttby
the witnesses, that he said. If they.
L. C. J. The wonts say he preached, * Wc
* have had,' that In, ho atid the congresTtition
assembled, and then it is aUer^vards turiicfl to
* they.* \ make no diliiciilty in the worltt, but
that * we have hiul t*vo w irked kin!;s toyiHlier,'
was intended of the late kin^ and this; and if
it had been ailed v:c(l, that ahtTWurris hu had said
* we shall overoomo them/ and a jury had
found tbat these word'- were spoken with sucti
an intention, as is laid in the indictment, it
would ha\e bi'en treason. But both in gram*
mar ami ii'astm, when you come to siiy, and
si ipi^i tS c. [iray, to whom should that relate ":•
What is the Kn^ish of ipsi ^ Is it we, or
they ? If it ht; they, in the tiiinl iierson, the;Aj
are no thinl persons spokir:n of, hut the two
kings, and tliey arc the last antect^dcut. For
my pail, it does stumble me, it U a thinn- of
great consideration. 1 M|>cak not, as 1 said, to
bind myself in opinion ; but 1 think, if ye had
put the word uo^ instead of iy^si, it bad come
nearer to the understanding of i.-ien, both in
grammar and iseiise. For 1 exclude myself
and them I sped; to, if i put it in the third
nerson, and your innuendo (I said) can uo way
help it.
Aif. GcH. Truly, my lord, I did not think
that that did rot ii|Km your lo:d.ship at all, as
any oi.jcetii.n.
L. ('. J. It tloc-s rcit, I assure you, Mr.
Attorney.
5ii/. (jcn. If wc ha'l done othcnrise, wc
should not have htid it as the truth is, and the
Latin does not alttv' the cu.se, for the word
sMokcij «as 'TUcy.'
L. ('. J. '\\, Ijut certainly he said, no
duuhr, > voir or • v,i/ if you will stand to
your principles, il'.N iiohM use else.
^;/. Gen. IVIy b.rd, I tal;e that to be well
enoutyh, for here an* three sentences. The.
first is, * That the peoph* make a th»ekin(r tr»
* the kinsf, &r. cju<d populns, Vc* The iievt
I is, *• quod nos habniu.'.is. \c.' And then the
j thinl i«!, * fpiod si ipsi.' Now * ipiod' go-
j verns tiio particular seiitrnee, and it being a
j p-urticul.ir .sentence by itself, v.ith huiuble
! subuiiissiun, it isgootl in gi-an.r.sar, und in sense
I U)0.
i J., C. J, Sup|»ose you were to speak it in
i Kiiglish. Mr. !SolieUi>r; suppo:;e you were to
I spwik it, * Now we ha\<' had two wiekcfl kings
■ * together, wh«» lia\e bufiered Popery to cunio
j * under their noses' (meaning t!ie late king and
', Uiis), there pi rhaps the innutndo is sen^ble,
J and, no douiii of it, then he must UKuUtbeiii :
lMittoKa\, If they Mvillbtand to tluir prin-
* ei|:les, ih.'v ^!r.l\l overc»mie their ein.ini« s,'
pi-av to uhom <Ums that * tliey' relate?
^o/. Grn. iVTy Txinl, with humble submis-
sion, >ou put the cas<- f.f an entire spee^-h,
made in the person of the i»reaeher, and the
congrr/falioii, and as the \\oi-ds were spoken
all at one lime. I would make it an entin^
spr((h too; but it seems to be se\eral sp;i-
tcuce:>, and therefore that differs the case. For
] STATE TOIALS, 3(J Charles II l6u,^Triai if Thmtu RmmU, [S(»-
ifl« tyrant, &-e. yet Ui«re tt it said, and ex^
prmij ttTerred, 'tJwt be nioke tlic wonb • de
I
tiking it that these arc thrw distinct scniences,
they niigbt b« f^poken iii a s^^Ferai inaaner by
varying the p^rsun* and so they ivcre si w urn.
Ami su|i(>oj)e \\it lid,)! only s|»ok(f ihe lust wor<ii,
aft indicUiitnt tor thi-i in the iliird perMn had
been a good iudicLtiK-til : aii^l tf it haid betm
diariyreii in that caK4% * t^uod dixit ©t a!*8«rinl»
* quail si ifisj, (Scc.^ and then in evidetii^c, come
ami prove tbe^e wurdu, would uot that have
been |f(Kid ?
L. L\ X Truly, 1 think, Mr Solicitor, if the
mdicUtient for these bwt words aUnje liad been
in the third person, it is aqii<*%non whether
tbit mig^ht hare been a yfood iudictineoif if ytni
bail cmne in evicfence, autl proved* that he ha<1
faid of* flic kioy und |fOveminent, * Ifyou will
* stand to your principles^ you shall overcome
* your enemies.' Though' I deliver no abso-
lute opinion of that, because tliere ou^rht, f
tiiiak^ to have bpen an averraent, that they
w€rc siK»keu of the kin^» and the people.
SoL Gen. In an entire spetTh, my lord,
there the relative must be applied to the la»t
teoedeiit| acGordiurr to grammar.
L. C- /. And I thmk it must be taken to be
an eotiie speech, aud you lay it in the indict-
ment lo be so, and then the relative must go to
the last antecedent, or ebc Dr, Busby (that so
tong^ ruled in We^t- minuter- school) taught me
quite wrong, and who hail tried most of the
g^mmmurs extant^ and used to lay down that
aji a podttive rule in ^ammar, thatch e relative
must refer to the next antecedent.
Just Wdhins. Mr. Sohcitur, ifyou make
it several speechea, tlicn it is ten tiraea worse,
Ibr then the latter part is so uoecrtain, without
ati averment of whom the words were spokeo, '
ibataure tt can never be made ^lOdr
SoL Gen. Suppose it had bf^eu * ulterius
* dtxit,' would that have made it a distinct sen-
tence ? If it would, our proof it may be was,
that it was aa entire speech, but yet 'consisting
of sereral santences, and must have the com-
mon understand iu^^ as to their relation one to
another.
Att. G€n> This objection of • quod h»i, &c.*
wa5 not moved by the prisoner at Uje oar, and
therefore we did not expect to speak to it,
L. C. J. It is started here now by the coun-
sel. And it is a question truly with tne, whe-
ther tbia can be any way aetisibly applietl, as
you would have it. Surely the tnnucndo can
never make it go<»d,
AtL Gen. My lord, I say flintf all the in-
nurndiii out of doors, th« word;^ Tti themselves
II do it.
L* C J. Why **ten we most sec wfaather it
a good indiotiii : int of form, or ra-
ther in point of OS you have kid
lii*^e words, will » mi n. .-cl^ mu' they were spoken
' de vpge.* It is a quesLiou of great weight
and oouoemmeijt liotli to the Vmg and to the
pfisoner, and therefoi'e we must txuce good time
to eansider of it. before ue deliver a settled
inion. But V , you very well re-
tuber thatSta;-^ ^aa otherwise. For,
though the words Were, tl^a Viof of England
rege,
Ati, Of! ^
in arrest ui
now ^tart» : .\
huve moved for
I ome.it
,.. .nrt ill
! Sidney ha- • 1
. that* th^ r
not sure, llti ungut
I
M..; , .r. Atttifuey General]^
not up to tiiig. Whcsre
them^4res that the kin£
meant, or any way circumstantially, it d
necessarily imply that Uiey be m**ant of n4
one eUe, und that would be goodwi
averment. Which was the case i>i 1|
Sidney, where the matter declared in the Uhkt
was plainly down- right relatini^ to the goven^J
ment, that * if be did so and so he mtnnt ns-"
* nounce his crown,^ and the like. Ilow eaa
that be applied to any but the ' * Tht
* people of England have comi: vjoaf-
* dom to his power, ScqJ Why, **>" « ut* rl bt
interpreted that any body else ts meant f
Att. Gtn. When will your lordabip please
to give judgment ?
L. C. X Mr. Attorney, wt will consider of
it. It is usual, in cases of\G&& difRculty than
this, to take time of consideration, t do not
say, but that looking upon the precedeote, per*
haps I may alter my opinion, and thert^ore do
not sneak this to bind myself: but we wiU
consider of it.
Ati. Gen, I look upon it that t!te gOTfrn^
ment is greatly concerned in this matter, i
than ten such as the prisoner at the bar.
L. C. J. It is tnie» Mr. Attorney, ibe
Tern ment is greatly concerned, and the prt4
soner is greatly cxmcemed, lor bis alt is a
stake. I do say a good bdictment might ban
been made, I am sure.
Sal. Gen, This is the best we conid mak*,
for we had no proof to make out any avvmiadt
because these were all the words he sai^.
Att. Gen, Afler the jury have found tba
words as laid in the indictment, was rt ever
asked of a jury, ' These words were spokeo
* of the king, or they were not, but jrou banc n«*
*■ said that they are spoken of the king, for ft is
' not laid in the indictment ?* Would that etcsr
vitiate the verdict ?
L, C. X Mr. Solicitor, pray, would you
have us give judgment, that the jury < nnlif nut
find that the wordis were spoken of il
Mr. Fofierfen. The jury have not l f i i
they were spoken of thcliing, for thertj ia ii<»
such thing averred «
Ait. Gf ft. Nor they have not foun«i
he not spoken of the king; btit
found thrin to be spoken to stir np setittioir
SoL Gen. We are never hound by law to
aver * that' that we cannot prove. And there-
fore I put all upon that dilemma ; either the
words imjHirt of themselves to be st»okf<i af
the king, or they do not. If ihey d<i not* If
we had said, ' dixit de dotnino te^,' it looit
have been proved, and that would have becB
to have left it to the jury whom he did !
And if they bt not aalf-evidenty God f
301} STATE TRIALS, s6 Charles II, i68-i,->r High Treaion.
|iiiy iM] be cluirged to find out iuch a mean*
ny; but if they ant •elf^cfidcmi ibey need no
Jofl. Hoi. Tnily, we iUink it may be g^no**
ffiiteooe to « jury, and it is every tJay tfotie in
cUfK of actions for vronts. It is leVl to the
jiiry to caD«ider, wheiber be ixit^ut tbe plain-
US, Joliii*A-8lile9t or any utber : and th« ewi-
droee 19 lidped by tbis, or tbat circumstance,
tiwre the words do not naturally nnport it.
/ust Wtikvt. I do think tliat' tbe averment
dui ibe^ words were flpokeo of tlie king', is a
pojat of fact that ought to be arerred and
pro»«J. Mn^ht not the jury in this case have
iHal tbcy wort? not st*ok«*n of the kinif ?
If they had touml that, i«hv they wiruld bave
•ennltcd htm ; if xUey h»d loiuid tb«y were,
and you bad not allt^ilged it, uhy then they
htd fmmd mure ib&a the imUctment would
Wmd tliem to*
/^ C. J. WeU^ tills is only by way of dia*
C0un>e4 not that we bt«d our«elve« by our pre-
opinion. We uuuii Jottk upon it. We
Ijfive our judgment auddenly in a case
nature.
Nofth. Wtl] yaur turdahip please to spare
■It line won] ?
L. C. J. Ay, Sir, let etrery tnan be UearJ, in
€Md'm aaifiew '
flh* Nvf tk, Bf y lord, m U> ibts ohjection » ' quod
* ns* idalfeS to the two wicketl klii)^ spoken
<M JMlbefofv, tUfli (?annut be: for you take
mtUetllhfti Uiese worda (?f tlietwo wicked kiu^a
ffilite III tile fAle kiD^, aud to the present, as
Ubc iodielnafit i«yi. One of the kin^ is dead,
so llitil ym cannot understand it to he of the
ivfoitta^ that should overcome their ene-
a liiti till} therefore it must he the people. Tbia
^■^JBpdtia' bctnga nouu of ruultituae, aud taken
^^^^M |il«tml Dumber* l^tsi will ?ery well
I oMeioic
L C /. Mr. North, the ar^raenttuma both
way« Ufoa tltat^ and certainly he did not rx-
mam btsisclf aller that rate. It k so Wmn a
UO|^lli[|felber indictment, ^ truly I bare
i9roe i««D. For my part, I would know how
it enoie to ^si, tiiat v^e abouM not bate as
itKh certainty in indictmeots, as we hare in
uf*oo die case ?
Ocn. My lord, there must be certafnty
casea, and we think there is ecftain^
b in tliia lor your lordship to gii^e judg^-
Mit npon,
JL C. J. Mr. Attorney, I believe if you sat
our places you won hi not iltiuk so. All our
oks rtsfuire j^reattT cevtaiiuiejiin indietmeuU,
llflm to acLionn on iUe. r:tse : nay, in causea of
iblifiaUire, we are iKitmd by our law books to
^aC counsel for the pii^oner, which we are not
b «ini c«ti!6€^^ where the prisoner may clioo^e
hm aiwn counsel. And we have not one act
tfpafJ«iiuii'£*t Ui U*f\p ihe defect of forming in-
feii H in civil ojctioDs, but fitiJl
aall ^ lie in Jeofails, there i» an
<Va^l«iHi res, to shew that our
ianannri |» uncertafnti^ or in-
m iQ€m» where tba lile of a man
was concerned. This iseetna to carry a gveat
considemtion with it.
Ait, Gen. IMy lord, I wa« yery wiUiDg and
denirous your lordship should assig'n the pri-
soner thy* learned counsel, because we did &up-
posQ ihey would have produced sotoc preca*
dents of a l»etter form than thi^ : bat tbey hsTe
cited none,
Z. C. J. And you hare cited never liuch a
case as ibis, Mr. Attorney. And if we can
find no other like case, we must be governed
by the reason of the thtng^.
Alt^Gen, My lord, we hope you will ex-
peiljte it for the sake of the ^vemment.
L, C, J, Certainly, I think it is very uu*
certain who are meant by eneniies ; it may
be Wr Solicitor, Mr. Attorney, it may be the
court, no body knows who it is : for every
body knows » that to preachera in oimventialaa
aufl to thoMC ihat meet there, the judges, and
aN that are for the support of the laws, may be
reckoned to them as enemies. But when it
is so uncertain who are meant, how can we
supply it by such an tnntiendo : That ihera
mig^ht have been a good indictment framed
upon such Words as these, as he in all proba-
bility spoke them, and he justly found guUty^
is no Question with me at all. And (as I sauI
the otlier day, for the sake of the auditory) if
he be guilty of speaking such words, and o
treason in ii(>eakmg them ; what will tjhey be
guilty of that were present, and heard the
words spoken ? They may thank Go<K that we
have a gracious king, that dues not take all the
advantages the law gives him against thosa
that break his laws.
Sdi. Gen, I^Iy lord, y ou r 1 ordsh ip tvas pleased
to mention Sta ley's case io me. As 1 do re*
member It, it is not as your lordshlu says : but
it is, That he, to perfect his wicked 'tjeason
(speak iiig of the king) said so and so, Now,
if an aveiincnt be necessary, this is a naughty
averment ; for it is not positlvaly averre^l that h*
did sjK^ak of the king.
L. C. .r. Well, we will look upon it. And
I would ask you, >Ir. Solicitor, wnether if he
said (as it is most likely be did) If you wdl
stand to your principle^'; and you put in ai
t/>«, whether that would be gfi>od ?
SoL Gen, My lordi we put it in as the wit-
nesses swore it,
Zr. C.J. Theytlid ^wearthc words accord-
ing to their apprehension ; but no doubt of it,
in common form he must speak tljem as I
say.
Alt* Gen, They swore the words so; and
we could lay theni no otherwise,
L. C. /, 'Well, Mr. AUorney, will you moTc
any thing?
Alt, Gen. No, my lord.
X. C. J. Then we will consider of it. And
take 3'ou back the prisoner $ and yon shall
have a rule of court to bring him, wheti tiie
court is ready for judgment.
Then the prisoner was carried back to the
King^s- bench ; and no judgment was given
that temi ; but the oext t^in Mf. EoaeweU
303 : STATE TRIALS, 36 Charles II. 1684.— TriW ofThema^ RosewelL [304
pli adt-'l the kinijt's nanlon at the baroftlic
c«.Miit of Kiri^*s beiicii : niid ^^as discharg«»tl.*
The tono>\inij is a Corv of the said Paudon :
Hex v. UnsKWELL, for iJigh-Tivuson.
^lidr, 36 Car' 2 Rot. IJiJ. IJ. 11.
coadunatiouihiis, nii^iirivinnihiis. ronit'deratinii-
ihus, talsis Hl|p<;:uiliis, tranHurcsisionibuji, riot',
roiit\ riMiMitionibiis, escapiis, coiiteitipt', faU
sitat*, ne|r|ifjnL>iit* cnut-4*le&iiteiit\ maiiiitenent*,
o|iprcssioiiii)ii8, cambi|)artii$, doceptioiiibus, ac
nltis, inaleiactis, ofieii8',et iiijur' quibu«cuiir|iip ;
npcnon acccsisar' eoruindeni, infra L*nin* prae*
dii:t*, tam infra Hbcrtat', (|ii:iin extra, per quos'
cunr|iie ct qualitercuiiquc iiabit' fact*. |>erpe-
Ii(n\ extitit pru'hciitat'. Surr. 5S. Juratbres,
vc. The whole iiidielmiiit as in the TriaL
Uu«id qtiidi'iii iudiela:nentuiii Dominus Rex
iiiiiir ('(H-aiii CD |io>tcn, ctTiis do causis, reitire
ia-it '.MT.iifmiur, Vi*. I'erquod pnecept' Itiil
\ 'y cum' (n-u'dit-r uoii otmti\ Ve. quin caperet
< u.ii, si, S:o. ad r«'siKiiideiul\ Vc. Et niodo,
sciP, d>e Jtsvis i>ro\ post t tin sept imanasisanrti
Mieii;.;'lis, isto eodein termiittt, coram Domino
Surry, s*. Alias, seil' die Martis, sciV S4^ptimo trat\ si%e eoiiuiiisHa, et per (|iios, .vol per quciii,
die Octohris, anno regrni I>omtui nostri Caroh ciii vol qiiihus, quando, qualiter, et quomodo;
tfcnindi, Dei «p-atia, Anirliie, Scotiiu, Franciir, ac de aliis artituliMrtcircumstantiis pnemissa,
et Hibernixe Kp<;is, fidei dcfcus*, \'C. tricesinio et eoruni, aliquod \cl aliqua qualitercucqnt
sexto. Per quandam inquisiti(»neni eapt' pro coneerP.en% plenius i eritsit', ct ail easdeiu pro-
sereiiissimo Domino Reiri; upud Kiii^sion sujicr dition<'K, et alia prteniistia aiidiend* et exami-
Thames, in coniitatu JSiiit*, coram tiiMiryio naiid* ;i:isi(tn*, st riiudum le«>-cm et consueiu-
Com' Herkley, rr:ir«"isco VV vtlu»ns Mil*, inf dincm rcjyni dicii Dom' Koo/a Angliee, per sa-
tfustic' dirti IKouini Uc^i> :td placita coram cramcntiini diiodccim jiir' proboriiiii ct ie^-
ipso Re^clenend\i«isi£rn* ; Thoma .Icnuer Mil\ iinin hominum com* pr»dict\ qui adtmic et
un* S^rvi^a' dicii Daniini Ueu'is ac iei^cm, nc i!:;d*'ni jiuat' ct nni^rai' cvisten* ad inquireiMr
Hecm*<l-jtor civitai' Londtm ; Adamo Brown, pro dicto Domino Rc£^t*, et corporc com' prse-
Har', Francisco Vincent Bjir\ Kdvardi» EiViiii '" ' - *'*' ' ^' '
Mil' ct Bar*, Jaco!»o Clarke ^lil', ( -i^risloi hem
Buckle MiW llichardo licath Si-rvicn* ad j
legem, Pctro Rich, <'t Stephano Har^n\ \rni', •
.fustic* dicti Domini Rejjris, per hie.-f:*; pntc!:t4 n ,
ipsins Domini Rtifis cisdem .IiisJic' pra-iio-
luinat*, Oi". qnihuseuiupie trihns \cl plmihiiN |
porum, sub tnagno sii^ilto d'cti Domini Rc;:;;is
Anjjliie.confe^-.t*, :id iiujuir: nd* p<:r sacramentuni , — ..,., „.„ .^„„„„.
probornm«.t lc.;^alium h'»miuvmi com' praidict', ■ Rc^fc a|*ud \» lMui', lenil' prjcdict' Thomas
ac alii'i viis, modis, tJ inediis, quihus melius I Rii-t-.i. !1, st'.h coshhI* euhtod* ])hsoD' dc le
sciverint aut poterint t.mi iniVa liherfat', i{uain j (lat^iioub:', \Vcslmini;!', in emus custod'
cxlra, jM-rqnosrci v« ritas i.mImis sciii poierit, ! pnianKa f\ cuusa praMlii.1' coumuss* fuit f ir-
dc qnibusruiiqiio p!»Mli«i*Mii!Mi«., J|♦i^;M•isionih;•,^ j Pit*' Invvis dicti Domini Rci^i?* de Habeas
prodiiioninn, insi.ui « i-ou.bas, ri!n.:ri«i!?il,ns, , Corpc^, ad Mihiniend' ct r»?cipiend' ad barram
conlrafractuii^, lon.'iirMi.nir'.fnlsisiUl.rita'ii-n- inr Jiuri' in p:-o|,na))e>v>n*sua,qui committitur
ibtis, et alii-. !:».! •■ta»' Mioncla; hnjii*; n -^'i;! \n'4iiit\ I .Man', Vc. Va Matim dc pnemiikVis ei siiiierius
ac aliornni K '^-nifnuu, sive domii)>.»ium qnor- I iiupi.-ii'. all 'pmr. qualiter se velitindcac-
umcmiqne; ac de tpjii:iiKf'iniqne irnir(lri.s, it'- , qnieti'.r:, 4i::.mi. Mi.cifl :psi.' in niiUo c^t iude cul-
loulis, homicid*, iMtirfcctioiri ifs. lMiri;Iav\ = jiabiliN. .ct iii'!.- <lc bon<» (-t malo ponitsc super
raptibtis mMl'crum, c«'n!»nLfuti.>:jil.us a<* con- | p'llriani. i^^^.• \imi' inde jur' ooraiu dicto
\enticulis iilicitiK \eriM>ruin prolationiiMi^c. l)nniini) R< ^'t apud Ur>im\ die Martii* in
- - - ! ju'lal'' sancii 'ViJUlifii, per qiHK, ij^c. Kt qui,
'^ This case is reported al«JO in :J "Moili'm .'i j \:c. ad nr.f^n'. \.i\ uiiia, .Vc. Idem dici
jnd li Shower lit. The lormerol'thosi- nrpoits. ; dal' c..;t pr.vh'' 'fii«»;ni. EtustTWt 11, sub rustod'
after briefly noticin*jf the ari^fimu'iit.s ibr and ; prii.-iai* ci:stodi.> pi-ison' dt> le Ciatchouse
a(fain«it the motion in am ^t oijitd^'mi lit. pr<)- ' U(*sim' iteriun <-(>niiiiis.<', saha cu»U>-
cerdsth'i^ •* Curia; ucnls n>a\ he :mi overt e<!, i dliTid* quouMrui*. \r. .\d qui-ni quideixi diem
but tlicn the;, nuistbcsor-crlaln ami positiva«< ! iiarli.-: in o<.t:.i.' .>^*v<\ !Vlartini, coram Do
plainU to dci.oL* ilir inl<Miii<»Ti oflhc -•— ^ - •"•••■• »*"•
Jf a man should tdi ano'hcr tii.4t
s|K*:ik»-r.
lie would ]
drive the kin-/ n\\\ of I'.mxiai.d, the:*, t-.c; •..•> !n»
a\ermt'iit tint surli \v,»r,I^ were .n|'o1:vmi dc
rejfc, heciusc thc> lend unnicdiauiN to dep'»sr !
thekin{;, \}y\\ if he had s:»id that he would 'jry» i
to U'hilehall and d«st.ro\ his cneniii-s, liiai is ;
not treason withoui an a^criiient. ,'itii^iiK'i?t i
Mas arrebtct!.'' ;
nuiii Rerf apusl >>c»»t»u', vcnit prwdict*
Tl!«iin:> ii'»s#».vi*!l s;'.b i I'.stod' pitefat*
ei'.*i«Mr priso!!" li*' li (ia...l.MU4f Wcstiii' proB-
dici'. viriulc Ir.cvis i;u*.Mu:i lic^^is de Llalteis
Co!pu>. ad Mib|!..io:;d', \c. ad hiirram hie duct*
in p'.'ojirii pervaip sua, tpii i i>nuinttitnr Marr*,
Vc. I'.t jiir' pradiii' per \ic* com* predict*
nd l:«»v» impanciii!,' ». \:Kt' %en\qui ad ^critatem
.lectV
p.*umi5Sis ilicnti' elect', triat' et jin'ar,
In 2 SSbowcr it is riifhtly state I, thai the i ilicnnt supi.r safn'mentuiii sumn, qu«»d pne-
' diet' 'I'homas Ro>fwell est culpahilis de alta
proditione pne(iici\ in indictament' ]irsedict'
prisoner was pardon*".!, .mid at the ciid of the case |
th«. reporter says *' Tamcii quuuc c»f the l.iw ;
for the sticn^li ol the prisoner's defence «m
bis trial as to ihe fact char^'tl v\ps thoi:tcht the
In.'st of his ca.se." St-ethe reports of these eases
iu Leach's ftlitions ul' Shower and Tiiod. Rep.
ttud tbti Editor's notes and refertuccs> thereto.
specitieat', modo et f< rma pront per indieta*
mcnt' prtT-^lict' Hupc rins \ (.rsus cum suppuuitur.
Ft quod idem Tho* Rosewell t(^mpore perjie-
trationis alta! proditionis pra;diet\ seu unquam
l>08tea, nulla nabuit buna seu catalla, terras,
J'tiriiiii'iiuiii!*
ii si ijuitl
curia hit;
prrtcetlere
Fnmciffi,
r, ^c. jwr
»' tlat' apitd W'cstm' vice-
0 fdasifit, wc per easdem literas p«tente9, 'pro
m^ hmt€A\ et successor' suis (iardoDabttl» f^
nikl«dbiti «C relaxabat eidem I'hom^e Hopewell ^
I TiiouiK Rosewetl luiper de jmroch'
* Hr^Ms^ in com^ Hurt' C'lerrco, seu quo*
lim nnmine vel co^Dumiiie, seu m\iii-
lonunis, aiU loci^ idem T.
.<^3tur, vocetur, sive nim-
Kr, *ui iiu[fi.v acwbauiv^ censebatur, Toca
nr£ mint upa!iutUE', omncii proditiones,
EMJtli'
Wettlki* I'
fat' Thomas Hose well in
»d»« jam iilr* olap^\ in
Ls, cmum ipso Rttije apad
t* si?e iiUinctMiiii ; ac
....i tjiauienr, jiidid;i,iunvic-
iiiones, exectiLioneu, impiiso-
Mttn ni^, H niniu's iilins [icftias et
Mn&i iitMjut* supf r vel vrtsM^ ipsiun
jW^. sHi, dr, pi'o, sive roiiceriteii*
freniitfsifiiiieurvirtiiii aliqtio IiuIjIi^ t'M'i\ leddit*^
•(Ti» adjiujii^at*. rtit iri pivstrnini huljen i\ red-
^£Did% lmc'icind% - li<-tir>d\ neritoii om-
d soDgiila 11 L. . iis dirhim Thomam
itiooe ;cu oLtaKione pneinisvf»nim,
li({OorV%f I iiticii|ii«i pi^>iiiu)L'^ut\ stive
.If.
ip» I lit , ler- !
■ISetljr II iu (uUtro habere;
tjUri^ ?sw)re5 dicli miper (
W((J»« pulrnHl in iiUufii. [
ttBUfiMiuc pacis ipkiUA tiuper H^i^^if*, rpiiP ad I
tam ntipsT !l« jr*:m vcr?n»; |)rn:'tht' Thnmam j
ttfim^ ' ume \
ct fintiiLiu a oup4.r lU_:i£« ^i iude i
filial H our , f tmsdem htiras patent*.
comitrs^ Jostic*, Dani^oa, aitt alios minifttrtvi
ipsiiw nuper Ue^ii/ lirtriMp, sea fiuc<>t?«mf'
Mtoiiitn^ cK-'Ciisioue pnviuwbor*, fcu corutn
ali^ujun, iTiolc^tt'tiir, arcHvioiictur, |K*rti]ii>rlur,
Kcu in alifjiio ti^a\etiir; \olens ijuud ra'dcia
hlem? aiitt! paU:nt\ quod oruriia tt smcruhi
pra^imfta KUperivts riiciiiioual', l»on\ Ijiui^
%aHd', Miif<cieni\ ni effectual * in lege sin! et
eriiit, licet crimitia ft ott'erw' prndin* mitmii
oertc I5p*><'i|if^i' exii»tut)l ; tjUfHlipie j^ardvifimio
J i la in or: i ' dicti nuper R* ; oi,
iuti:frprct ulicetur m betj« o
iiO»is*i, pn> rjn.KfJii ^'ine pn'iar i no*
tiwr Uo«ewell, ae Letur et alloretur
in onmihus cur' u+^ ^ n^^y^x Regis, cili»(|u^
alirpio brcvi de alloeatioiie in ea [mrt^ pniis
ohtent* Siive obtinend\ non ohstaot* stanit' in
pariiatTienIo, anno rpi^ni diet' niiper Reg'ta
decimo terlio fact' ct edit\ et npu obstante
atiquo defect^ aut aliquib us defcgiibusin eisdcin
litem patent* content^ aut aHqtio alio staiitt%
actu, ortlinatione, provisioned proelaraatione,
Bivc restrictione^ ant atiqua alia re, cuuiia, vrl
muteiia f|uac\mqne in c*jntair* iiide m aliquo
non obstante Itatanii-n quod dicuis 7boina«
'* II tal' bon' et su^r' sccitntut' de s#
end^ a dal' lilerar^ piilent' pranijct*
-^ii^t uicium nupcr H« sjcni, h«i*cd\ et sne»
i?««ores snos, et cunctiun populnin snum m.
veniat) quat' appuuLtuat' et iiniitiit^ ent iwr
Capital' Justic' de ottr* praid* pro trm}ir})t»
exi»siten,' Et idem Tlwmas Rohow ell prof ert
hie in cur* Uterae patentespracmls&a tei^iiltcantes
in h:cc vurba :
Carol VB senindu», Dei gratia Anq^lii
Scotiic, rranciiu, et Hibernian Rex^ tidci di
tensor, 5cc. omnibus ad qims prseseotes lileras
nnstne pervenerint, anhitem, 8c » at is, quod
nos de gratia nostra specially ae ex ceita
^ientin, et m^ro mom iioMns pardonaviuiuSf
remisinius, et relaxavimus, u ' enteis
pro nobis, ha.Tedibiis, et sticc i A>stni
]»ardouainus,reuuUirunfit et re! . itomee
Kosewell, nuper de paroeh* dt^ l.'i I; '. aie*>m'
iSurr' Clerico, sen qutMHUique aliu» £ji uuhc vel
coiriiotnine, seu adilitioue nornitus, ant loci,
idem Thinnasi Rose well sciatnr, censeatur^
voeetnr. mxe nuncupetur, out nuper seiebatur,
cen^ebafnr votTabatiir.. sivenuncupab.itiir, omneg
Jiroditionfs qua^cunque, undt i i nma**
l^osewell, in tennino saneti.M:< i idt'
elMpK*, in enria nosiraeoram noln-^ apud \Ve*1
monast* tent' ronviel* mc aUinrt* liiit ; acou
' nia ft ■ ^ ''■'■;,; ^ • ■ ','.■:
I eonri
eS^H
•iPHIf*^ lUKl^
J,^*Ll^^.^,
•c super vel ver^u^ i|
■- -^ <^^j !>"' -'^^^
p*:** miosis, seu eoruiu ul
rfMidit\ sive iidjudicaiS ani i ,
reddendo faciend^ sive adjudicand^ nee no
Onsnia et singula utlo^ar* irersus .ItcI' Thrtmnii
Hoscwell, ratione seu oecHsion
seti eoruni aliquonitn vel alim
sive in iM>8teTum promulgaud\ ac oitiuia e|-|
ornnimod* sect\ quert'l*, torislactirr', impetiti«
om^ et demand' quiecimqu^, qutt uim
Sfl] STAT£ TRIALS, 36 Charles tl. l684.— Trtbl of JoKpk Hkifes, [80i
tpMun imtime fnemiKoram, seu eomm alicujos
b«Mmm, habemiHi, seu in futuro habere po-
teriimitf, ant hmred* ceu successor* nostri u1k>
modo haliere poterint in iutaro, seetanMiie
pflcii nostrv, mut ad nos v«nas pnetat' Tno-
Rosewdl pertineat, sea pertinere po-
toriat ratiniie pnemtiaorani seu eorum aliquo-
rum Tel alicnjus ; tt fimiam paoem nostram
ci inde damus et . eoncedimin per prasentes,
volentet quod idem Thomas Rosewell, per
ViceooraitoB, Justiciar', BaUivos, aut alios
miniatrOB aostros, haeredmn, ku sucoessor'
DOttronmi, t>ecasione pnnniasoniin, seu eorum
alicujaB, moWstetor, occasionetur, «u in
afiqno graretur. Volent* quod has liters
vostne patentes, quoad omnia et sinifala prse-
minaaaperius mentionat', boose, firmse, valid',
•■fficieBt% ct effsctual' in lecfe sint et erint,
lioet crimina et ofTens' pmhct' minus eerte
•pedftcat' ezistunt, quodque hsBc pardonatio
nostra in omnibus curis nostria, et abbi, inter-
pretetur et adjudioetur in beoei¢issimo
aensa, pro firraiori exoneratione prefat' Thonme
Rosewell, ac etiam placitetur et alloeetur in
omnibus cunis nostris absque aliquo bi«vi de
allocatione in ea parte prius obtent', eIw ob-
tiaend*, non obstante statut' in parliament'
asBO legni nostri decimo tertio fact' ct edit', et
non ob^nt' aliono defect', ant aliquibus dc-
feetibus in his literis patentibin content', aut
aliquo alio statnto, acta, ordinatioiiet'pmiaioiie,
proclamalione, sive restrictione, - aut aNqua alia
re, causa, Telinatcria quacunque in ooDtrar' iiiia
in aliquo non obstante ; ita tamen, oodd dttA'
Thomas Rosewell tal' bon' et safficwn' Mea-
ritat' de se bene gereod' ex nunc erf^ noa,
hcred' et successores nostros, et canctnm po-
pulum nostram inTeniat, qaal* appmiclMlf
et hmitat' erit per Capital' Jastic^ de curia
prsdicf pro tempore existcn'. In enjosm
tttstimonimn has literas nostras fieri fiilMsi
pateotes, teste meinao apud WestfflOBUl'
vicesimo octavo die Janaarii, amio regni m*-
tri trieesimo sexto. (Per breve de pnvHa
sigriilo.) Babkbr.
Super qno vb' et per cur* htc intelleet' om-
nibus, et singulis pnemiss', cons' est per eof
hie, quod predict' Thomas Rosewell (sob on-
ditione mentionat' in literis patent* snjgcrisi
recitat") de ahis proditionibas predict' mta-
dictaoient' pnedict' superins specificst' exoM-
neretar, et eat inde sine die.
On the Back of the Pardon is written M Al-
lows:
Ista Charta nlaoitatur, allocator «t iifilii
tatnr de record' ooram I>omino Regv lodd
Westm' terroino sancti Hilar', anno regni tH*
mini Jacobi secmidi nunc Regis Aiifl' Ue,
primo.
' That he being: & f«lsc Traitor agiinBt Ifae
« king, &c. the Slst of Aoj^ust, intha SSlh
* year of the king, knowing sir Thomaa ina*
« strong to have consptrni the death -of thi
310. The Trial* of Joskph Hayes,! at the KingVBench, for Hjgh
Trea'ion, in corresponding with Sir Thomas Armstrongs aa
Outlaw for High Treason : 36 Charles H. a. d. 1684-
]Vf K. Hayes was brou^t by Habeas Corinis,
upon the 3d of Noveiuber, lG8>i, from the Gate-
houRe, and H-as arraigned upon an Indictment,
tA) this effect, viz.
* See Sir Thomas Armstrong's Case, p. 105,
of this volume.
f '* In Armstrong's pocket, when he was
taken, a letter was fonnd writ by Hayes, a
banker in London, directed to another name,
which was believed a feigned one : in it credit
was given iitm upon Hayes's corres[ioudent in
Holland for money r he was desired not to be
too lavish: and he was pnimised, that he
should be supplied as he neede«l it. Here was
an abetting cf a man outlawed fur treason.
Much paias was taken on Hayes, both by per-
auasioD and threatening, to induce him to dis-
cover that whole cabal of men, that, it seemed,
joined in a common purse to sup|4y those who
0ed beyond sea on the acxnunt of the plot.
And they hoped to know all Monmouth's
friends ; and either to have attainted them, or
at least to have fined them severely for it. But
Hayes shewed a fidelity aud courage far bc-
joimI what could have biecii expected from such
a man : so he was brought to a trial. He
a alnnig defence. The letter was not exactly
Klie kis haad. It waa boC addwiwad to Ana-
strong, but to another person, from whomte
perhaps had it. No entry waa made of it ii
Lis books, nor of any sum paid in upon it. Bal
his main defence was, that a banker rTsmhri
into no person's concerns ; and therefore* wkm
money or good security was brought him, hi
gave bills of exchange, or letters of credit, ei
they were desired. Jeiferics pressed the nufi
in his impetuous way, to find Haves guuty il
high treason ; because, though there waa Ml
a witness against Hayes, but only |iiiemM
tions appeared upon tlie proof, yet, JefcM
said, it was proved by two witnesaea that ihl
letter was found in Armstrong's poekct ; aed
that was sufficient, the rest appearing by cl^
cumstances. The little difference hetweoi Um
writing in the letter and his ordimury ■
was said to be only a Icint to hide i^ i
made him tlie more guilty. He requwed Ihl
jury to bring him in guilty : and «aM« thai Ihl
kmg's life aud safety depended upon thia Hiall
so that if they did it not, thevexpaaed ^
kii«r to a new Rye-Pbt;
vaoaoeMLWishi
, tiievexiMMiltM
with aiharcHMi
• bur, •»**•"
10^
fSrHigh T^fwmn-
taCbrt, aod mjn;
AtiJ ttViitiU ir.«iii I
UfOD ibc 21st of >ovcuiber, 1684, he wj$f
brwu^jhl to Iritil, l»elurc ibe lord cfiiel' jUfUve
ictj/"
Burnet's
a* « ctli^^n lltut b^ £ieflcries]
i lit km ftmtcnleii f L.«s«n ; anil
ai the irot, ap|i«i '4 biro otf
viii Ibe jonr : wlitCiliv II r I
•A iiMnn i' t4f r at Mt QC^-^ r
Hv «pniiti^ lit tlie 1 H ^vas not seen
becofno friends. Upon ^^
•*l, «, p. toy, 8vi> milt (if t W«.
•• Nwf. 3, 1084* Jciseph Hnves
VMftlv Udbctts Cnrpufi friMo ihc
%^ Koifl^'ft-bctich tuir, and Mfa« t&rrat^:Laii on
«ijiMMi*M uf high tr«aioa, tor cointiirtiui/^
^^^* Mii reliBTUif sir TlioiiMuK A
ft loi^ U> wliifth bt {i4«wleil ^
■Bt^yi truU by a uiry of r
Ai^a4i^ alt#<T u rtiulK*ri*rtr u;i
llr ctvf r«Ml*
rli.i
vo or
ti<»ma«
^ g>miff by ibe iiain«? of Henry
iBmnmm^ and Mi»t they had stsea a bill
itefad W ocir Jos liiiyes ftnr 161/ 5t. an
Mr. Itnkci'lfai r^, Utm^ U\o money for 1,00
pnaM p^iil m l^mioti; Uitm xh^ve wu.h a
ying iho ttme, ilireck;J lo Heniy
Bubmxiiied JiMiepli Hayeti^ whie)i
■botti m T. Arn>«troii(^ wheu he
ttufciwi; iWa wii* t*' '^* ' ' *'''"' '■" "* ^"iic?r**
badky CMslbatH I ■■■U ^
•ba hy CMiamarictg u ... j:si of
Uik TW jAmma^a defetici^ was in utuking'
' I on ibe atideiiea which \> ei-c very per*
aa «lan b# €jdl«d »iov<<-.ral persona who
'lia laymlt}', cmiit anc] Minvioiir ;
Itba jtirj, olC ' s be-
lli cnmu in a;i Not
ba traa diJchxir^eLl/ «\drciuuii
L'i ** Bnd'HMoricalllutatiori, ' MR
L.
ruetit nms thus:
Ji^ "
phits R.'iye^ nnpcr
OOtl'
►fwnr"
Jf (IVi
.Sopu%
den, Jofia <
B
Th« Jury
Danit:! Mkn
Daniel Tew
1,!,.-^ Ili^Uo
luik't- WiltiUi^.
■ u ib
Wulle
I rid
4
re*
?!Worn were,
reg'
b-
■ U^cta
i' 3ia*
et
^u
Dooi*
* spiravuise ct iaiagiiuil
* destruction' diet' Don*'
Samuel Shesfijirdy
t. Adam BeUwpy»
> Dewaft, Eiiwai'd
Ell word Checke^
Then the ladictineDt being read, Mt* Bol> '
* ponderans, s«d iniitigatioae diabobca oiot' «il
* seductV iiiu i i.-.rk wMjisu etdtbitain, i^t uatur-
' alcm veru* et fttld* subdrl*
re tinetui
> stuif int'.
' mfjnt«iiir^, Hiule^tai^e, et ju i
•i rebeUion* cuntva *1
re et mo>ere^ *»i u
^ Hum :' ' :
*diaM
* not]liiit% tf>rou iii]||K nm it4;rii
* f'Oncre, dtjicera. e( dcpriyarei >
* He^eii) ad fiaar destrtictiou* ..o»,
' poncre, 31 die Auj^tii^ti, annt*
* Curuli secundi mmr Hr .' in
* a pud parocb^ ^
* wai'da de Basfci^ i
* quenflam Thomaiu /Winstfoni; uupt^r de Loo^
* doD Mlbt\ ut faii^um [iroditor, proditoric C4U|*
V fuisse mortem et fintl*
Reu-', el pro eadem
proditi^ ■■■■■V |»r«d^
Johajir cto 31
die Aiij;*i-n .uiuo rt'L: «i»ri i"»iu ito'^is n
23 siipmd', ct diversib uV dii-bus^ rt »iaJ
tain autea qxuun po^tea, npinl |
^liebaeP B^H^iiihiiw, in \v:uil:v :
ncti 1
' 1 m cor-
catic' SLUT
't.
^ tuiiq el ibidem pru
' tntione^ etmantileiiiioji'
II* sd centum ai t|i Ubia^
monel' Ai^^i^ mat i uosio, el
et solvi c^u:i.oiij coulna
lum, ac contra |iaeem diet*
I'oiii . cumn*> el dicniiat* sitaa,
'ikc.nt A formam slutuli/ >k€,
311] STATE TRIALS, 36 Cuablu II. l6U^Trutl ^ JoKpk Hagn, [SlS
ttetiy as counsel for the kio^, opened it to the
jiirv.
Mr. Atf4}r,i€ff Ofintral^ *Sir Robert Sawyer.; .
KiUiv Sir Thomtift .IrrnMron^ )i»l fled, tbe'pn- j
contT TvWf^eA and aid«>d him with money, and 1
thit, after he was indict^!, and sued 'to the j
Kxifrtnt ; iN^KiiJes, a pmchiniatkin followed |
ii|wiii liiK flight, which was a sufiurient notice \
t^i oil th<: Icin^'f* subjects. Sir Thomas went |
hy the name *A' Henry Lawrence beyond sea ;
by that narnc the prisoner held a corrwpond- .
eiifc with him, and sent him a letter, dated the ,
'Z\st of Aij(.ni>.t. and tells hiTi, he bi.d sect hiw
tthilltjf f ?:.;!. an r/«: for Vi^^t. drawn upon hU \
hr!iiii<?r, l«,:u»-l il»;v< -^ who was ac^iuaiRted ;
Ufilh sir Th'iiiiT,. If it ^x-re not for these re-
fti'iviiijr jin/{ hoi:r.".,l.iwc: r-f tr&itors, they would
nut lurk at Anrtiiiari*, as ihev do, I'Le letter |
viitNtik* :i avjui -iir 7 !i'»r!:ab. and we shall prove .
it ij* the ;>.•.■ -'.riM-'^ it uwi- writing, and that sir
Thorn :i*; ur ••:■. tA t*;t ftjom-y. 1 hope you will
tuki; cfiP-, t,y ( »• ri\ ictinyr this ^i ntleman, to i
Ktop ihi- I'MiriViii;, V. iiich ivsiu-s so much supply j
to llir.w trail.,,.* Y,\^'^ j„;k i.Ijr*ad.
3«r. /y'lf/'..-, i!; :ii iiifiriiiefl, that he never
kni»\* sir 't noTrKis j.i liis life.
Th#ii iJ." liidii;tiiu;!jt a<|aiDst sir Thomas was
reuil, which was found tliu r^th of July, and
Mr. tilover provf.d a copy of the kiniL^s pro-
clamation against sir Tiiojuas, dated the l^Bth
of Juno, VJ'fVX
TIm'u Kzikifl Ercrls was sworn, an«l testi-
fieil, that in Au(ruxt IGiiS, \u'. was at Clcrc in
Cjisrniany, with the lord Orey, who went hy
the name of Thomas Holt, anH sir T. A. came
thiihffr hy lh<; ii.'ii;ir- of 'Ir. Hrnry l^urence,
and slii:wid hini a Kill of ('xchaii^r^T fi-om Enr^-
hnid, upon Mr. Isra« 1 II;»y's, in Ainsirrdam,
lor l(>u/. odd mom;} ; and that it \%asfor lAO '
guineas, p;ii«l in Mii^^latd : ami he toM him, it ;
wioi diiivvii li V .}o.M|i!i I iuyci, and it was signed i
Josi ph H;i\( s ; and tlic lull wns accjptf d, and
1h! kuw Isia<.l llay« '.V If:'.^ r to sir Thomas, by
th<* nunu: of l/nMixiu...-, whirh uionlioncd th'j
9cndin^ th^said Mini X't ('!< \f.
'I'Ih- t'oiiniioii S .jtuii ((.'risjK') then d'-li-
TeriMl a parnl of h-iu-rs into tin' ccinrt, and
fiivon* that h" rrcrivi.d tin ni of thf lonl Cfodol-
idiin, and tlit-y Ind hct u cvd* since in his
(inndN.
'i'lit* Lord (iiulo/j hln t!ien tcMificd, thai he
riM-fivrd thri-<- IrtlfM's iiriidiir(d in court, from
Mr. t'onMaliic, ."Mr. t'liiidl<y's secretary > who
toM liiia tiicy \tt'i-r tal. S) aitout sir Tlit)inas,
tli:iton(M)f thi-ii\. I'.itluMit a:iy name, mcnliom'd
l'iC»i;nin ;nl'nt;'.! {u i.{<iu\ I.aur('!iC»\
Vofi.'.t h!i !■ ■liti; 'I, Xi.r.i hi* \va> pitscut, when
thr Seoul nf i*ul».i ,(;•;. i-f Ik nilr-d sir T. A.
and thai ihr !(iLiis v.'-." 4 d^on out of his
IMii*l;i;i, :ind iit* hinroill iI. 11\(m'C(I tlicm to Mr.
I'huillry, wini M,a|c4l th- in i:;i, and sent them
by him', to till' lord tiO;!i>'plii:).
VharUi Duris tvs(ifi«(l, tiiat takinpf boat from
AmKtrrdaiii to Ucti^ rdam, !ic met Israel Hayes
and air T. A. tomii'ir to take Imat, and bir
Thomas i^int witli him in the boat, and he told
tlwiik hiv name u as Henry Laurence. Uavis
\
added, that he loA;^pd a month in one Bria-
cnwe\ house at Amsterdam, where there waa a
cluh eren* Tfaurviay : there were Mr. Inad
Hayes, Mr. Henry Ireton, one W'ilmore,
Emerton, Dare, antf some other Enj^ish mer-
chants ; and he beard ifaem ^et eral times aboM
the king* at table.
The Atturney General then shewed Mr.
Hayes a letter, savins*', It may be he will
sare us the labour ot^'proving it ; biit 3Ir. Havea
disoviniosr it, Mr. Ualpol^ was called, and Sir.
Hayes said, lie was my serrant, and went awav
after a rate that possibly would not be af-
I'jwed.
WulpoU testified, that he seired >Ir. Hayes
almost fuur years and three quarter*, and dad
beiieve the letter to be 3Ir. Hayes*a huid.
Huyts. 3Iy lord, in m^itters of trcsaoo, I
hope \ ou will not admit of compariaon of hndi
and belief, for evidence.
L, C. J, Ves, no doubt of it.
Hayes* It has not been so in other casw,
that have not been capital \ as pmrtictilariy ■
tiie Lady Carr*s case.
L, C. J. This is tf mistake, yon take idnm
Al<^emon Sidney; but without all doubt il M
jftiod evidence.*
Jud^e Withins. Comparison of hands w
allowed for $^ood evidence in Coleman's CMCf
Hatftt. That, with submission, Tiitly dif-
fers ; those letters were found in his own cm-
tody ; this was not found in mv posseaBon, bot
in another mau's, and in anotlier nation.
Sir John Trczvr, couusid for the king. Tbii
fl^entleman was a trader with tlie £ait- India
Company, and made contracts with
whicli are entered in their books ; we will c
pare ihcm with the writing in this letter.
The Connnon Serjeant then railed Hannan
and Brittle, and demanded of them where the
Ituuks wvYL' ; and ihev produced them.
lltiriiunt toslilied, that he kucw Mr. Hayei^
and ili'tt he mide several contracts in 1689^
and that he sau him in September 1683, iub-
bcrihc his hand to a book of the company^
shown to him.
iiriuiv t< siifiLH], that hi' is porter in the alreil
to tin: E.ist- India Company, and that he saw
Mr. na3L'S write his hand \o a book shewn H
him.
Capt. rUrcehiHse produced a note, which be
said was I>lr. Iltiycs^, and that he suppoaedil
to Ik; his hand, and compared it with the hand
in tiie hiHik, and said, that he deliTcred the
{^oods upon it : and \\ alpole then said, he b6»
lii-vcd it to be Mr. HaycVs hand.
Then i\]i*. ::itur(jlirajit was called, and thejT
showed him the letter, and he said, Here u
Joseph Hay v.> writ, but 1 do not ktiow it to b6
his h.ind.
The Common Sorjcant said, that 3lr. Stm*-
dtvant swoi-c he did know Mr. Hayes's handp
* See the 1^:ocee<lin^ in Sidney's CaW| toL
9, p. nu\ of this Collection.
t As to the truth of this assertion, See Coh;
man's ca^, Vol. 7, p. 1 of this Collcctwn.
313]
STATE TRIALS, 3(>Chablb8
befare the grand jury; but Mr. SturdiTant af- |
finned, the coinmoa scijcant wgs under a :
wftike.
T1m» sir John Trevor called for Mr. Har- '
iiHiL ; but tli« common seneant answered, ■
Tbat be was out of town before he could hh ,
lenred with a subpcena.
Tben the Ljettcr was read, It was snbscribe<l .
Jouph Ilayea, and dated the Slat of Aug^ist, |
1683, directed to Mr. Henry LAurence, iieiiior, .
U Amsterdam, and began thus, * Sir, at your :
ttcdre I bare seut you a bill,' <kc.
The letter and the Easit- India books were
tben shewn to the jury and to the priKoner.
Haya denit-nl the letter to be his writinii[', and
Hid, It is very strange I should not know my
•va hand ; may not counsel be admitted to
ihsd, Whether comparison of hands and be-
bf anp anj evidence in criiuiual causes ? I
kfc been infunued, it hath been denied to be
£.* C. J. You are under a mistake ; some
My has pot it into your head, and puffed
m Dp with a vain stnry ; there is no such
br, It is a fiction, a meer whim, only said by
■r. ndoey, and no ground in the world for it.
Emm. ' \Vas it not so in the case of my
Uj Carr ? There is a record of that I suppose.
L C. J. It was not so. Don't talk of it *,
Ibtftvaa oo such thinff at all. Comparison
iff ¥■!• was allowed for good proof m Sid-
Wff^ OR: We must not alter the law for
■7 Mr.
Jit. Gen. Besides this comparison of hands,
«e Aaflgive an account of the correspondence
rfike pMouer's brother, and that he recei\ed
the MMey of him. Mr. Common Serjebut,
Wloe ha'd you this paper ?
Cm. Serf. I had them from my lord GodoN
*'''~ This is an account of the receipt and
Dent of the mouey ; shew it 31r. Con-
Camsiab/e This U one of the papers, which
wm taken out of sir T. A.'s pocket.
It being sheun to the Jury, one of them de<
■aided, Hhcih«rr au^ one proved the hand that
win that note?
' Ati. Ctn. No ; but Everis swears, that sir
T. A. shewetl Iiim a bill, subscribed Josepli
Haves, for so uiain^ hundred Guilders.
Cbbi. Stij. He says, it was 160 odd pounds ;
WW, the sum of this note is Itil/. 5s. which is
#• change of 150 guineas.
Ifoyrt. Here is nobody proves this letter to
%i mv hand, |Kisiti\ely : they o:dy prove it by
fimilitiide. and comparison, and belief. I cou'-
^•me thtrre is but one uitnpss, that that letter
Vli found in «lr T. A\ hands. Everis says, he
W a bill had my name to it. »Sir, you <!id not
Iww me, n«'r e* er saw my hand ?
tx€ri$. No, never in ni^life.
Bmf€t, It is only an evidence of reputation,
'heard it nas my bill; you saw no money
ii vpoo it. Hid you t
* k was in Trinity-Term 1669. Anuo 31
MiClSid. 418.
If. 1684.— /9r High Trtawn. [SU
Everis. No ; but I saw a letter from Mr.
Israel Hayes, that gave some account of it.
Hayes. All this is hut similitude and circum-
stance : and T thought in case of treason there
ought to be two witnesses, and ho|)e you will
let it be so here : here is no evidence but the
letter, anil that is not ivto witnesses ; there is
no bwly has proved the-* knowingly' in the in-
diccment, that runs, that I knew sir T. 'A. and
his treason : that ought to be proved, but I am
sure it is not. Your lordship says, that the
indictment and the proclamation are sufficient
notice that he %vas a traitor : that may admit of
counsel to det*ate it ; there ought to be wit-
nesses tliat could shew me to be concerned
with him ; which nobody in the world can:
prove, or that I ever saw him ; and that wit-
ness, who says, he saw the bill, or this letter,
does not know that I wrote it ; there are them
that say they beard of money paid upon this
bill, but there is not one of them says, he saw
any money paid : and these are several wit-
nesses, every one to a several thing. Here is no
proof but by the East- India porters, and those
who say, they believe this letter to be my hand ;
nobody says, he saw me write this letter, or'had
any correspondence with sir T. A. If thq^
pretend there was money paid beyond sea ; is
this indictment well laid, for it is laid to be paid
in London? The payment of money beyond
sea can be no evidence of fact upon this indict-
ment: for the jury of London are to enouire of
matters arising in London only. If 1 am to
be tried for payment of money beyond the sea,
the fact should have been laid tliere, and the
trial ought to proceeti upon the statute of 3.S
H. 8. cap. 2. The indictment should be taken
hy special commission from the king, and the
trial be in the county that the kuig should
choose. 1 desire counsel upon this point.
L. C. J. No, it is an idle whim, and I would
fain know the counsel that put that foolish no-
tion into your head.
lluifis. If you will allow me counsel, yon
shall hear who they are ; I have been informed
the law is so.
L. (.'. J. We are of another opinion: if
any u himsical notions are put into you, by
some enthusiastic counsel, the couitis not to
take notice of their crotchets.
lliit/ts. The witnesses are strangers to me ;
there is one tliat has been sworn, to whom
I li:ivc paid several thousands of |)ounds, who
sjys he does not believe it to be my hand.
'Then he? called ]>Ir. Sturdivant, who looking
upon the letter, said, I do not believe it to be his
hand, I ha\c had dealings with him, and he
hath given me many receipts.
Hnj/cs. There have bt^eii a grcnt many for-
geries ; and this letter is foi^eil : lh«»re have
been forgeries so like, that the [>ersons them-
selves have not known their own hands. Every
b<jdy knows that a hand may be countcrfeiti'd
very like: in Mr. Sidnoy*s cas<?, Mr. Wharton,
a young gentleman, not above one or two and
twenty, said, He could undertake to coun-
terfeit any man's hand whatsoever. I am not
S15] STAT£ TRIALS, 36 Cha^rlhs II. i6S4.— Trto/ o/Joieph Baga, [S16
m man of that quality, to g^ive sir T. A. 150
guineas.
£. C. /. We all know you have been a very
active man, a hiisy follow a!>out the city ; as
forwai-d a s^*ark as any I know of a'^rcat
while. I rioirt know what you talk ofyoui*
Suali'iV, but w c k:»ow ■, c v: qulililicatious ;*you
av4iaiway; ht:c:! t;u?iiuii5 unil Uirbit lent against
the kiii;^ 1111(1 <;(jv; :-:)Uii.;it.
Huyts liieii aliiiuiL'J, that ho neither gave
nor le:;t, nrr rciiM'ijttl any sum of money to
this i»cr8on ; anil tlien eailul Mr. Lau>;Iey,
who ti-siiriul, tl..;l ;i Utter was counieri'citcnl
and a bill of ExLh:i!i^\.' ur: l^o/. and so v'»x:ictly
like, tbat if he li.ul noL known oi'it I'Clb.c he
saw it, he nuist luive ov nit! il for his h;=r.d;
anJ the party that \yJw\ th-j !u:*i:'jy, i^airi it in
his own wnaj;' ; torhentxer <ircw nn^ such
bill. i\ir. i/ounnnn MoiJLid! liad my' books
seve'aldavs in hia ir^U'is. wheiv thsre is r.n
account of ,10,000/. I'ctwccii :ny Iroiker anJ
me ; ami if I would stt my haV.d to s'lc'i a
letter and bill, and write my n:u:ie at length,
is it not as reasonable tiiat I siiould pnllhc nuiLe
of Lan.Tnce in jny books? and if it weivj there
he would appe:ir. Indvod Iilu* is ;:n account
prodncfn] of di\ers -x.icels cl ir,o;iey disbursed
m little sums ; but 1 -ipju al to tiiJ merchants
whether any bill ofExclianGre Mas ever paid
io such pareelt.* No iortij^ir bill was ercr pui<i
by 3/. or 3/. or 20/. at a time ; it inusl bt^ paid at
the day, or it \till be pruttsttrd. IL.'i-e is a com-
putation of a sum like to the sum in the bill ;
out tiipse are su[)positions, and not proof.
lln^n Mr. Hayes calb'd .VMerman Jef)i'eys,.to
speak to his reputation aiid eonnrsation ; who
said. That ho had known him many years, and
never knc w ony hui t of him.
L. C. J. Have you been at any of the elec-
tions at Guild-hall for mayors or sheriffs,
when Mr. Hothet, and Mr. Cornish, and them
people were chosen ; and hu\e you seen Mr.
Ha} cs there, and how he bebaveil himself? A
very forward active man, I will warrant you.
Aldermau Jtfinys. I su|)|»o>e I may have
seen him there, but I cuunoi say any tfiiug^ to
his behavir.ur.
Then Mr. Hayiis aiVM Mr. Pellet, Mr.
IJoyd, Mr. WitheVs.sjai. Mr. Witlicrsjnn. and
BIr. lfut;:h W bite, who ^ave a fuir account of
his deal in;; ami comers.ition. He then said,
that he w ould trotdib? thu court with no more
witne^kses.
Mr. Atforneif C aural then said, that he
would call on(.>uirncs>« more a^ninst him; and
ordered Attirbury the nuv-'ieni^'T lo bo swon.,
and the letter va's sbtwet! lo h:r»v
Attcrbuni. I ;ip;»rehendo<l Mr. Ha} es, and
brouLCht him I" loi'C the kin^f, and was
presuit wli( n th«' leiUi v. .is shewed to him ;
and the kii.^ and Lord Keeptr North press-
ed him to own whetlwr it was his hand, or
no ; and he snid, he shu«dd say nothing: tu it, if
they could j)rtive it upon him, well and good.
Huiftis. Ili« mai( sty was not there.
AUcrbur^. As 1 remember, the kmg was
there s I imu*;iue the lun^; was ibere.
X.. C. /. I was there, what be saja. w
true ; von said, I am not botmd to aocine
myself^; it is true, you did deny that jon
knew Laurence or Armstrong ; and it is at true,
you would not abeolutely deny the letteff*
but Slid, you were not bound to accuse your-
self.
Hayes. My lonl, I did hope, tluit in point of
law, my counsel should have been heard to
those things I mentioned, and I wish you
would favour roe in it ; [but that beiny denied
him, he addressed himself to the jury t"] Motbbg
has more troubled me, sinoe my continement,
than the imputatiou of high-treason, a thing I
always detested ; I never knew any, toe
Iv^ast thing of the conspiracy, hut by the trialf|
or other printed papers -, not one of the con-
^^{•iraiors, who have come in, or been takeo^
have charged me in the least ; nor did be him«
.':if accuse me, with whom I am charged to
have this coiTespondeuce. Gentlemen, 1 de»
Miti yon to consider, that it is my Uib is con-
corned, and I beg you would consider whal
tlie^c witnesses have testified ; they are not
posi-ive in any res|>ect, nay there are not two
to any one thing that is charged: ConstaUt
s:i}s,* the letter was found among sir T. A.'s
papers ; he says no more ; and here are not
twj witnesses to that: Everis tells yoU| he
s:iw this bill, b'.?t did not know ray band; there
isnobmly tells you 1 wrote this letter, but it is
fon-id in another man's custody, in
nation.
Gentlemen, it is very hard, that by « ^_
risen of hands a man's life should he in danger ;
when, in lesser crimes, it has been denied to be
gT)od evidence ; and none of you can escape
the same danger if this he allowed to be eri-
dence ; for your hands may be counteifeiled as
well as mine.
If there had been any probability of mj
knowing him, it had been something ; out there
is not one that testifies that ever I knew him,
nor indeed did 1 : there is a great deal of cirr
cmnstaucc made use of, upon the accotmt of hk
actpiaintance with my brother in Holland ; bu^
it is strani^e there should not be some evidence
of a fnrtlicr correspondence between him and
me, if there were tiiat intimacy that such a
letter as this doth imp<nt.
I must, with reverence to the divine
jesiy, say, acd I call Gwf, angels, and
I to wltne.NS the rrui!i of it, as 1 shall answer it te
him, biitire whom, for ought 1 know, I am
qniekh to appinr, that I neier in my lifespoka
with sir T. Armstroni^, nor was ever in his
company, nor ever wrote to hiiu, by the i
of Laurtnrc, or any other name; and I do so-
lemnly say in the presence of God, that I never
gave/sent, lent, paid, or onlered to hi; paid, anj
money, directly or indirectly to air T. A. or
H. Laurence, or to htm by any other name, or
to his use ; I speak it without any comitcrTeiting
or eqni vocation.
Gentlemen, there have been overturn, if I
woiihl say some things, that my life mighibe
saved ; and it is not to be bvlieredToial |
STATE TRIALS, 36 CffAllin n. 1684.-:^ Higk TVmmh.
r»»
f>lB llw fiaioe cif mj life, if b]r ipialtiiig
b)4t do jt^ti
MIA^IIlte?
L. C~ X Ay, bai J^n mait say those things
tkU warn 4mpm» um At f^)t vu lo hear ; ymi
•Ml feot iiBimate, is if t ^ men! would
■ Witkf a&J fliicb rttmfnvt Ik of.
^K Htfjrri, l^'i^ n 111 me
^^^fcj. If 1 idl yrtM^
^H|^M Kbs< |i«rlui|tjs you It til be vt^ry tinwiHtng
^^^Hiri «Ni ID^ word, it wilt he very u»plea>
^^W^ Is Inbt It; y<J<u h»d t>etter let tho^
Ikttfi alanr, for you will butdnm it load upon
Utfn, 1 bfteedi y4>iir limlship k^ ti«ar
L C X V«, 1 wtTl lieftT yon» provided you
Uiq^ witliiii doff bouttds ; but we must not autfer
0^pcr. I «hy n^ihingr but tbis^ tt has b«on
iii ate, llMi the wsy tos&re my life is to coii-
r
C (X X A« you represent it, it is a reflec-
li iMi ibc gtjTcrnmifut— you talk of over-
ihMbc Imi niftd« vou ; do tiot make tii€
ital I bay^no muia to aay.
[^•ffidr
♦i«fe/ *tid * 1 think^* or * I liuve
inMm^ I knnw yiiii ftre mj' fHlow-
^•cHt rf4T<jti M !u7- tiDTiK. :iniT of the mme
J hojjt* you
I any pre-
I III*, i wiii>ftrtial I'ffso-
tilt* 4 or ftOOOr
■nnicsxj r ajtiU, f#fy t(C««ptltf>'
llbfti:
uod. imdc!ft»0k lO
Bfr. Il«yc»» thtl-tt pftrdoii >.;HMnu »h
. OO ifukiflwi 10 lli« kmg^^ and looo to
r^ Iraft Ii0 •^.nvufili deobu-«d, that the
mi fcfoard httn tb«rciii, tnd lotd bitn,
►^fc* •*! Ajf^'JHMl. that bi- hi\d l>^.TlfM- invr
mh(r^
boll,
, _J* dk) f^tertiiTtt ilKMiid tiol hurt Mr,
iijn/* Fanaac EJiiiiMi.
nn. I say, Mr. Foraler by n^me told mf ^
*•• •« on wiy for me lo escape, but by
L C J. You hfu\ best call Mr. Forstcr, to
IfeM \ *m \\t' rnrnf* tn till v<jii«;o • if VOU dO, I
^- i Of 5000/.
^ : vmi bad
li^aNivar, or i shaii ^twi .»i>d of
• ^■d*J erf *cnT!»^W\ th;^t is
fi Ikl, liiat wa?t the
^» T h«iT<» d»*rl»rcd
I ?^ '^^^ ^ ^ ^^ *^*^ srtkmuit
I. and n<^i an ii! i
le«?e tbe tu«tt€r with you ; T am snrt^ tbtt If
God help mp, J*nd deliver me in tliw cxig^iey, '
that it is hcf* and you undti' bim, that preftTf«
my life-^ —
Geutlcnirti, The great iooertaiuties, impro* .
babilit)i?s. imd consequeaees in tbis casr^ 1 hope
wtll 1^ wei((bed by you, aod maJee you wm
better to consider the proof, which is made by
oooe but such as are stranj^era to me ; since,
tbeu, l)> lie not, I bo^ie you will weigli
it, heiih V it agmnst me : we must aO
die, stul 1 .uu sure it will be no grief to you
tn acquit a man that h innocent. I leave it
with you ; tlie Lord dirtrt you,
5Ir. lUcotikr^ (8ir Thomas Jeeui«r*) 11w
treason charged on the prisoner is ^* that sort,
t^t if he be guilty ^ he wilt l>e a jimt exampfe
to terrify others from doing the like ; tor if
traitors had not per^on^ to supply them with
money abroad, it may be, they would not baT«
so much courage to run away. We have si-
tif^fied you that sir Thomas ^mstrong was tn-
dieted ; that an exigtmt was gone at^atust him
upon that account j here was a urocUiiiatioUt
and sir Thomas Arnistrong namecf in it ; and so
the Recorder re]»entet1 the evidence of the wit-
nesses, and eonchided : Gentlemen^ We think
that his defence Imsljeen so little, and our proof
so strong, thai y<Hi have good ground 10 find
him c'uilty.
The Litrd Chjf Justice then summ^ op
the matter t4) the Jury :
Gentlemen of the Jury, This is an iQiicf>
ment of iii(;h- treason against the prisoner at
the bar; and yon are to try it ai?eording to
your evidence* The priwwJer'si aifii-matiori ©f ^
his innocence 16 not to weigli with you. Nay*
I must tell you, I cjmnot but, upon this ooMi-
siou, makf a little reflectioii upon seTeml nf
the hoi: ntfTTS, thai ly, with
a* m II c , . impreci' j ce upon
t \\mn^L I r ' s .oiy treasoD ;
but ihrunhi ^ ty good aer*
that \u'[{. ' ■ \ notun^
one of tl ill ihi«
i:>Mfvr. ilirl -n'Mfiu U? SO tkf
1 >i that they nhould
and all tbit»uu-
. 1 of religioti ; pay,
. r ofHiiother of lie
r a fuU
of haf'
I" ' ■'"-
(\ .rr :,:,!,:
1 * ' ' ' VOU O.J I I IT-
CO aspirators^ [lord iiv
and evident proof » and [
io^ an band m it, when he ooniea upmi llie
brink of fleatb, and mas to answer for that hor-
rid fact* before tbe great G^h), b« blessed At-
mi^cy r4od, tUt he died by the band of tbe
■ r<nd did not die by
-wl, at the place of
I \»f-ini"n, iiifii ne n<e<i a irailor ag^insl tbe
king and government, rather than died o mar*
tyribrhts religion f " -nk it ncocssary to
make •loroc reflei ; ; when mtin.'^un-
th>r rh^^ nriH/*nee ui -- -v,- •!• "^'^ 'townd up to
to lb ment rlif^emses, to di4tuTb
Ihi- L-^t 'Muniment, Ift dqstfoy tba
*^ <<er bb sacred :
ui ^ , and lo «abveK«iiri
319] STATE TRIALS, s6 Charles II. ibSi.— Pr/fcAflrrf t. PapUlim, [320
gi«n, and liberty, ant) pro]ierty ; and all Ibis
carried on upon pretence of doiiiji^ Gut) {ifood
■enrke. You are to ^ accnnlinsif to evidence ;
as the blood of a man is precious, so tlie |^o-
vernment abu) is a prt-cious thin^ ; the lile of
the kinfl^ is a precious Chinj*', the preservation of
oar religion is a iNrecious thing', and therefore
due regard must on had to all of them. I must
tell you, in this horrid conspiracy lliere were
several persons that bore several parte ; some
tbaC were to head and consult; there was
a council to consider ; otliers were designed to
have a liand ia tlie perpetrating of tliat horrid
villainy, that was intended u|)on tlie ])ersons of
his sacred majesty and his ro^'al brother, and
witlithcm, upon tlie persons of all his majesty's
loyal subjects that acted with duty, as thc}'
ought to do ; there were others, that were to
be aiding and assisting (as in the case of the
prisoner, if you find bim guilty) aiding, abett-
ing, assisting by money, or otlierwise, or har-
bouring any of those persons that were con-
cerned therein. Then he recounted the Evi-
dence given against the prisoner, and made
such n'Uiarks uimn the same, as bethought fit.
The Jury witndrew, and sfient two hoars in
consiidrratiim of the matter; and then return-
ing, gave their \eixlict, that the {irisonsr wis
Nut CJuihy.
Att. Otn, BIyLord, thongb they have ac-
quitted him, yet the evidence is so strong, that
J hope \oiir Lordship and the court will tliink
fit to l)itid him to his good l»ehaviour daring
his life.
L, C. J. Mr. Attorney, that is not a proper
motion at this time.
80 the prisoner was discharged, aAer he had
I been imprisoned fiveniontlis.
311. The Trial between Sir William Puitchakd, Plaintiff, and
TriOMAS Papillox, esq. Defendant, at Nisi Prius at the
Guildhall of London, in an Action upon tlie Case for a false
Arrest: 36 Charlks II. a. d. 1684.
Kntenihcr 6, 1081.
LaTZ(/o», «^SlR Wm. PritchanI, late lonl
mayor of the city of I^oniion, having in ii):ister
Term last brought an {in ion u[ion the case, for
' For sevnril partiirulais «ii'the proceed iiigs
in ihi^ i'ity of 1.4<ndori with which this Case
is ecu meet od, s«t the Note to ihe Case of
SSachcverell and others, p. 29, (»f this volume,
and tho Cases and Notes there refcn-ed to.
The following pitssa^es arc from Narcissus
Luttreirs MS. '' Brief Historical l{elation,"&c.
in the Library of All St)nls' College, Oxford :
** April, ltJ83. Mr. Papillon and Mr. Du-
bois luiving gi\'en onler for a writ to be taken
uut to arrest ilie I^ml Mayor, sir Dudley
North, one of the sheritrs, :uid several of the
aldermen, in an action of the rase lor a \\i\^
rrtum to a mandamus dinx:ted to them for
the swearing thriu two sluritrs of London ;
and the sheriff buing concerned, the writ was
«li reeled to Mr. Urt>me, coroner of London,
who uccordingly %u'nt to theiu to acipiaint
them thori'witli, and desireil an appearance,
or that they would ;;i\ e bail, which, they re-
fusing, he execultMl the writ, and carried them
very civilly to his own house, and kept them
there till ten at night; when one of the city
Serjeants came with n^rit and arreste<l the
coroner, and carriiMl him away prisoner to the
Counter, refusing to take bail, so that he was
forced to lie there all night, during which
time the lord mayor, &c. walked home. Tiiis
thing had so surprised sonie persons, that the
Tories reported the Whigs had seized the lord
mayor and carricil liim away, and the lieuiu-
nuicy of the city met, and ei^bt companies
wari onlered out immadiatdy tor th« liecurity
fj&lsly, maliciously, and without nrob:«blecuBe>
procuring him to be arrested ana impriioncd ia
his mayoralty, against Tliomas PapiHoD, oq.
the deVenriant pleaded, Not Guiltv* and thera-
upon issue being joined, it ouinc tliis day to be
of the city ; this affair affords variety of talk,
some condemning it and others approTing it^
according to the diOerent tem^iere of persom.
** Nov. Cth, 1634. f u the afWrnoon, a trial
was at Guildhall, before the Lord Chief Justioa
Jeffreys, on an aclitni brought by sir WiUiam
Pritehard, lute lord mayor of thecity, agaiMl
Mr. Papillr)n, for i a using him to be amsateA
during his mayoralty : and the jury, to tht
amazement of all, o-ave 10,000/. damam.
Since wliich, Mr. Pa;)illon hath thought mti
alnicond, as being nuieh the safer for him."
. At the end of " A M:Vih Collection of Papart
relating to the ^lv:^(nt Junctin-eof Affairs ia
England,*' Ve. pnblislir-.l in the year 1689^
there is iv.v;f riid, 'An Advertisement,' aiitil
culled, ^ oi'ihe !<• :irniii>y- :uid Uhetoric of tha
lale L«n-d ChaiHfllor .lolirrj^s,* as followg:
'' Tliiiv.' is laicly pulilir.i'.i-d, the trial of Mr.
PaTiiilnp, by \vhi( h it is niaiiifest that the then
Lord Cliif.'t'Jiisiice Jefireys had neither leant-
uvj^ law, nor g(;od i.'iunn. rs, but more imiM* '
dencH than ion c:ii*ii;d whorrs (as was said of
him by kinir f^'ii'rlo the Stcunil) in "^^lyny
all thoic W'lishy (iii.'.ons uho voted for Mr*
Pnitillon and Mr. Dubois, cullinsf them a pared
of factious, pragmatical, sneaking, wbiniiici.
caniiiig, sniveling, prick-eared, crop^ean^;
atheistical tltJIous, niisculs, and scoundrels, AnS
as in p. W, and othiT plRci^ in the said TridI
may be seen. Sold by Uichard Janeway, mi
most booksellers." <
STATE TRf AI* 36CtiARLES It. l684.— /or/n/tr ArrtnU
idi
;. ,„, ^., : , . lUc
, Josejiij
me out of itiind,
vij office, in the
1 city, according"
'U\ru ho wns to
i^AiVtl'<^ ^^ I'^^h tlay of Ft!bruary, in
ifci JMjfftr ufbr* vaSif. ili(- ffeflnrfant fur vexa*
■ \ IdU'titl or
• ► pirtintiff,
■ttfcr
J
ol ILm
id to the
"loii ; by winch
I tMiroiit;r ta Uike
ifr««ni: ' ' i!
\ ktm no 41
M W^I>*U .^♦. ..,.-,, ;V v..iM ->i.^y
l^dsy* of Baxter t \h^n nivxx follow
» Aiul
\ tW rrtkirii
bilKyoCAli.
4 ibtn* iIk* I
t. f.n.l.ut
\ {>lra of
I rther
hI Ik*.
. the
id, at
1*1 Ni. AJiltJir<l
the WHffJ of
ijlr
lAJd I'Tirtjr e cf
, t» iW 4i«57*«''^ r l(iP
Mid «jlii€«-, toi jils'j ttj Uir ma-
Ci p^.^itiilti-r ;,rji! ;,'iuvjnt(' of lllt^
. M Uir
ftl>cpifcnt4imj*rww>^ «iliMi6-
, :m\ Va
BR
* Paiicbiv
* London, u. ^
* nuper Major ci* i
* Papillon in custnir Sliii\ lWc, i/vo vo itiilelioet,
* ijiKKi cum duodecimo die i*eliniafii^ unno
i Domitii Caroli s^^ctindi nunc Kepris
,e, ^c. tricesiuio quitito, ipjie idem VVil-
" uriMius Pritrhard, ac anita, et ahimie per 8^*
' rwnil' nnjoscs rx tunc pro\' .supitrid' ejttiAit
* ftlajor ctvilal' lAMidon piH!d\ in oHioium Ma-
*jorfttUfi illius debito luodo el^cl\ pnfiect% et
* jurat', ac Becundum con&nctudinein civilnl'
^ London, piu'dici', a tempore cujus coDtrar*
* menioria hominutu non existit, in eadetn
*■ itsitat' et approbat' o§ieium suuon Majoratus
*- jUius indies intendi debuit^ per assidunm dHi-
* pent' ipsius Wilhelmi in reg'iniirte civitat'
*' iljiusf per ipsum secuHdiiai deb] turn otHcii
* iiui pned^ exequend', et pcrtbrmand' ad bo-
* noreni et dicrnitat' ad officium illud spectaut'
* ft periini!n\ p rird ictus tamenThoniasexijgt cut
* unuH lie fJkiiiiiLrtt' civitat' pr3Ed\ et sub regt-
^ mine diet L AVilbelmi, virtute oiircii eui prae-
* ibcti, prtemiiisor' non iijniirus, s*'d niachinans,
* ct ittlse ac mulitioao invldens felici statui ip-
* sins VVillielini in officio 8uo pnedicl', necnoo
* ipi^um VVilhehnuui in evecutione officii ilUus
*■ minuK juste iiiquleiare ei disturbare, lirtediclo
* duodecimo die Kebruarii, anno tricei^iiQo
' quinto supradieto, idem Thomas PapiHoo,
* pro vexationc prtefat* Wilhehno adhibend*
* (eoilem Tboma adtunc non habentc aliqiiata
* k'S^tjmum vol protKibilem eausam artioms
*• verms ipsnm H iUielinum) iiil»o et malitjose
' pfoseqnut* fnit e:^tra citr^ dieti Domini li*i^^
*• coraiD ipso Regie nunc babit*i aoilioiti apiicl
' We^tfoon' in coni^ !Vtiild}e«*ex udtuBC t^l tfluuc
* tent' txifiten\ quoddam bi-^te ipsiaa Dom'
' Reg* de alias Capias versus if*siini Hi]h«l'
' muoi, per nornen VVilbelnii Pritcbard^ Mifitisy
* adtunc Coronator' civitul* I^xudou* prccd*
* direct^ per tpiod qtiiilem breve ifkrn Dotuiiitit
* Hex nunc tulem tunc Ctironatori pr{i«cepit
* quod caper' ipsnm Wilbelmum Pntchard, si
* invent' tbret in civitat' London* pncd', ^
'^ euni salvo custoitiretf ita quod btberet corput
* ejus coraoi Domino Begi? apud West' di«
* cnr' prox' post quindenani Pai^cki*
* ex tunc pnix* Mequcnd% ad resj^den*
* prft'tat' Thomce PapiHon, per nomcn Tbootes
* Pupillon Arniiger', de placito iranagTM',
* et quoti idem time Coronator babrr^t iW
* tuDc brere iltud. £t pra»d ictus ThoiiUtt
^ Papillon, e% uUeciort nequilia et oialitia^iia
' prxtx»gilat' versus ipsum U ilhelmuni, po3t€i
* et ante retom' brcvis prfcdicti, «ciiKi?t| vic<»
* limo quarto die April is, annn trie tN» mo sit*
* pradicto, apud London' pra^l ' . in pa*
* rochia sanctse Mildredw V ir^ nlietnt|
^ in waAlft de Cheap^ Loudon, pni^dictum
* breve de alias capias cuidem Jobanni Brome,
* Gen\ adtunc Coroaator' civtl^ Loudqo piv4'
»2S\ STATE TRIALS, 36 Charles II. \6S4^Priichdrd v. Papillon, [3S4
defcn Jant hos ploadcil, Not Guilty. If we that
«rc of counsel fur the phintiff', shaH prove this
inattiT unto you, «^entlriiieii, that r.e have laid
in the (Inclaration that lias been opciictl unto
you, you are to tiiul for the plaintiff*, and I
no)ie \vill repair liim in duinages for this af-
front and injury.
AitorntijG eu era I. (Sir I lobert Sawyer) . May
it please y-ouv lordship, and you t^ttenien of
the jury,' I am of counsel in this case for the
pbiintilt'; and this anion is brougfht, ^utlciDen,
to vindicate tlidionour of the chair from such
affronts as these, which in no age, till of late
days, our times of faction and confusion, it
ever met with : that by a ]M>rson that is a
citizen of London, and one of the commonalty,
that ougfht to have paid submission to the loni
' mayor as his chief inaipstrate, and was bound
ISO to do hy his oath, as a freeman, should,
without cause of suit, arrest the lord mayor of
the city. That there whs no probable cause, is
evident by his not proceedinc: in the action,
that he had thus brought. But, gentlemen,
we shall shew you in the course of our evi-
dence, that there lay a further malice in this
case, and thai thcii^ was a design in it ajyainst
the governnienl. For we shall ^ive you evi-
dence,-that this desii;'n was laid to cany on
the flfreat Plola<raiust tlic lives of the kin;;^ and
his brother, and fi>r the subversion of the jjo-
▼ernnient. For they eonirived it s«», that they
would imprison the irtiiyor, and then, ihou(;;ht
they, the loyal citizens will interpose to rescue
hiiii. and then tbe r»arty should rise to assist the
ollicer, lie havin-^ tjeroniii.'iii'.nfewF authority,
and heiTi^ in the cxenjiio's <::' ili*. kinn'-^ wiit.
(especially if it he coTisieier^-il tliou \»iio \\t\s
coroner) and so a public e<i'!ir.iniio:i would ii*
made a ^neral nui tiny, and ilmt wouM l>r» a
fit opportunity, in the coiifr.siou iA' t\ni eil\
wantinj^ its cfiief tjf >vei*!ior, of ckiiuji- what thuy
di**i«fned. Gcnlk-nieu. ne shall prove ;.ll th:.t
is laid in the deeiiuatian ; and liken i>e that
the end of this busjiiips-^' v as to Ijave Inal a voi:\-
motion for the accomplishiyitr ^heir i:;rent e«fn-
* existeu\ delihenn il exeipiend', nc adlune ri
* ibuN.'iu npud "Wilfii'lmuu* adtunc Maj»ir* ci-
* vitat' I^Kulon prad', r.t piv-Jcrt', existeii\
* pnctcvru bnvis illius pr«' «:t»rp* suum capi ct
* arri'st;»ri. «e in prisona Nub cust(»d' tjusdeui
* tunc iJoro/iKtui' per y.paiiiun sex horarum, e\
* tuncprox* S('ij>ieu\d('tiuMi uialitiose ft minus
•juste pro4*m:i\it, in vitupemtion', deroffa-
' lion*, v.i vili'ieiidiuni pra-dicti Wilhelmi ct
* ollicii M:>joratu;i ipsiiis W ilhehn* praul, ne(;-
* non ad damnuiu, pru judieiuni, et irravamtn
* ipsiuK U ilhelini iMnn:t> it', ubi rcvt-ra, et di*
* tacto pic^dii'tus 'fimmtis L'apiltou, prje«lieto
* tcinporr. captionis, arrestionis. et detentionis
* ipsius Wilhehn' in prisona sic, ut pru fert'
* fact*, nonhabuit alii^unm justam vel prriba-
• *• bilem causam aetioius versus ipsum Willicl-
* mum in pnx*ni!Skis pra^d', unde idem WiUiel-
* mus die* quod ip<<e dctcriorat* est, ct damnum
* habtttad valenl' decern millc librunim, etindc
f produo* soctttu, dec'
spiracy, as has been opened. That sir William
Pritchard wasarresteu in his mayoralty, I sop-
pose will be ag^reed, or else we shall prove it.
Mr. Ifiire/. 1 es, ves, we ajyree it.
Solicitor General. (Mr. Finch) Then we will
^ on and prove the manner of it. Swear Mr.
Gorp^es, and Mr. Keeling. [Which was done.]
31 r. Keelinfjf, pray, will you tdl my lord, and
the jury, were yon made a special bailiff to
arrest sir William Pritchard, when he was
lord mayor, and what did you do iqion it ? Tell
all you know of it, and what was deseed
by It.
Keeling, My lord, all tliat I know of it is
this : It was upon the 94th day of April, I
have the warrant here to shew, 1 met with Mr.
Goodenoujifh, at BIi^ IlussePs the cook, in
Ironmonger- lane, and several others wew
there ; and I went away a little while,
came a^iu : while I was gone from
they put my name into the warrant, and \ _
that warrant, 1 did arrest sir William Pkil^
ard, who was then lord mayor, at the snit of
Mr. Thomas Papillon, I sup]K>se this is Um
gentleman [pointing to the det^dant.] f bad
no order for it from Mr. Papillon, nor efw
spoke with him about it ; but 1 bad order iVom
the coroner, i%ho, upon the arresting him, took
my lord mayor into his custody.
Alf. Gen. Where was mv lord mayor 4]iea?
K*clins^, At Grocer's- hall.
Att, Gen. Wq«i that the place ho kept Iw
mayoralty in ? — Keel in;:. Yes, it was so.
Sof. Gni. What %vas h'j doing when joaiT'
rcMed hiui ?
Kcefiii^. There was soruc disturbance imon
il, amonp^ the oflict-r.? and poople there. The
curoiier caui'^ up to hitn and said, Sir, I bsre
; a writ ai;aiiisl ^(lu, 1 pr.iy you wonM please
to ciw an nj>]\ aviuicc at the suit of Mr. Tho-
mas Pnpilloii, niid another at the suit of Mr.
John Diibois, and soiut^ words there pa.«sedbe-
tw< en him :;nd the ceroiier ; and my loid
maydf refu/m*; to give any appearance, the
coroner. Til r. Uroine, bid ns*exe<*ute OfRi
ranis ; upon whieh 1 came up to my lord i
and touched hnu upon the shoulder, ond i
I arrf'st you at the fiuit ot Thomas FapilhiB,
esq. and" one 1 Vrnandd tiurley arrested bin
again, at tliesuil of Mr. Juhn liubois.
Att. (ifn. \\ hot did you do uhh him, wbcn
you had arrestttt him i*
KfdinfS. The eoronei* dismissed us, and, It
1 take it, carried him home to his house.
Att. (Jen. What instructions had you wiMt
to do, in <\isc he made any resistance, and- dil
not submit to the arrest r*
keeling. I know of no instructions about Uf
such thing.
Sol. Gen. Who was by, pray, when
were given } ou to arrest my lord mayor f
Ktrlins. *tioth the (xCKMleuoiiglis.
Alt. Gen. He in the Proclamation,
mean, and his brother ?
Keeling. Yes, liichard and Fnoicis i
nough.
&l. Gen. And who else, pray T
385]
STATE TRIALS, 56CHARLEd 11. l6S4u^for false Arrest.
[326
Keelinr. Several that I did not know. .
•Attm Oen, Can you rememher any body
ksiiLes the Goodchou^s in particiilar P
Keeling, There u as one , a tall our-
chudlcr, and a gr&iX many tliat 1 did not
kaow.
Sol. Gen, How many do you think there
were ? And where was it ?
KetUng, I behete there wrrc about thirty
v fiirty, and it was at Russcl's tlie cook, in
faanmonqrer-lane.
• Ait, Oen, Did they all come along with
yoa 10 Grocer's Hall, to arrest my lord mayor ?
JCrdiur. No, my lord, they did not.
&/. Gem, l>id any of tlitiin, and which.
Ktetimg. Sir, 1 will tcU you who did eome
ti my kml nwyor's. There was the coroner,
fanoa Gnodenough, Ferdiuando Burlcy, and
i^Hlf : and after my hird was arrestc<l, the
MMMT hub us be |(one, and he would look
iAbt aj lord mayor.
Ml ben. Whither did you go aAer that?
MmUng, I went to sir Harry INilse's directly .
. Jft. Gem, Did not ypu expect an opposition ^
had joa not some discourse what you
d doin case there was an opposition ?
iBpbw. No, I cannot tell any thingr of tliat.
itt. 6eB. You say, there was a mcetiufir, or
■■ril^at Rusaell's, of forty people ; had you
MlAnemne consultation what was to be
!■■, 'day ionl mayor did not obey the arrest ?
JUm^ I do not remember any thing
Mi ikm^ at that time.
Au, Gem. Was there at an^ other time
Mr? Or did you hear any ol those people
4nBv the Goodenoup^hs, or any of them,
nkm ikej would ha\e «JoHe iu case they were
itdmg, I do not remember any discourse
tf ■i4uinir« before or aller.
LCJ, (Sir George JeflTeries.) Pray, Mr.
faring, let ine sisk } ou a question or two.
Vntyoueier employed by the coroner to be
•^mbU baililTlo arrest any body, before this
Hrmneakof, thatyoa arrested sirHil-
iMPrilrliani:'
Xsrlisf . No, ray lord, I never was.
Li C. J. Then pray rcTollect yourself, who
«ne at that niettuig, when, as you say, your
IBS was put into the warrant fur this arrest ?
EuUtig. 31 \ lord, when I went away for a
illt whue, l' left these |)Ci-sons particularly
hi I did name, the two GocnU-nuuglis, and
f •■ Bnrtou, I think, and one t-roniptuu, and
AttlsUow-cluuidlcr ; there were to the nuni-
kvof ihiny or forty, thai L tliJ nut know ihoir
L, C. J. But pray, how came you to be
ia this service then? Mere you a
__ lintonntheu.'
Knfaf. Yes, at Wauping.
^ C J. Good now, now cafne you to be
§9 id in aiTCStiug my lord mayor, more
iMgrdber of those thirty or forty that you
•m there then?
. i went there among them, but did
not know then that I should be concerned in
this business ; and 1 went away a liitle while,
and when 1 came back they told me, that my
name vtbs put into the warrant.
L, C. J. Pray, tell us the whole story, how
you that were a tradesman at Wapping, should
come to be employed as a bailifTto the c«)roner
of London, to ai'rest my Ionl mayor ? There
must be some particular Viid in it.
Att. Gen. Mr. Keclinpf, tell the court and
the jury the v/hole story, and what it was that
brought you into this.
Keeling. I\Iy lord, Mr. Goodenough told me
I must be concerned.
L. C. J. Ay, piithee tell us what Goode-
nou^i desired you to be'conccnicd in.
Keeling. U|>on my coming back to the com -
]>any that was at RusseiPs, Mr. Richard
Goodenough told me 1 must be concerned in
the business of arresting my then lord mayor, '
sir William Pritchanl ; said I to him, Mr.
Goodenough, this is foreign and remote to luy
business, to be concerned in such a matter as
this, it will seem very strange for mc to do it.
He presseil it upon me to do it, and says he.
If you will not do it, you will be a man looked
ill upon, and it will be taken strangely from
that party ; he meant, I suppose the discon-
tented party, the faction, or what you please
to call it, that were not contented with the ad-
ministration of *tlie government in the city at
that time ; and he urgred it upon me with a
great many arguments. I opposetl it with
much vigour a good while, but at last he pre-
vailed upon me to go along with the coroner ;
and Frank romlenough, his brother, said he
would go with me, and he did so ; and we
came and arrested my lord mayor, as I told
^ ou before.
L. C. J. Where did Mr. Goodenough press
you to be concerned in this business, as vou
say .^
Keeling. At Mr. RusselPs a cook in li*on-
monger- lane.
L. C. J. How came 3-011 tliilhcr ?
Keeling, lie; sent me a letter to meet him
there, licwasutiuo before to be concerned
in it, but I did not comnly with him in it. Mr.
Richard Goodenough it was, and Mr. Ash-
hurst, 1 think it was aUlcrniau Cornish's son-
in-law, was 1)} .
L. C. J. U as \elthorp there ?
Keeling. jS<i, my Ionl, h** was not there ;
but they did not procce:! then, becaiiso my lord
and his brethren we»e gmie out of town, to
>\ait upon the king, I think ; :iiid this uas si\:
weeks or two months bcfoi-e this meeting ut
Russell's.
Sol. Gen. Pray, .Mr. Keelin;;, recollecrt your-
self. Had yoi! anv (hse<Mn>e \uih GimmIc-
nough, orany b<idy els**, what ih'M"ons<H|iiciice
of such an arrest would he :'
Keeling, 'i'lu'v ti)hl iiu', my lord mayor,
and court of aUkTiuen, i)u<l iiia:!f an ill return
to the MandumiL^' > tli.n were a»«.r\eil for ihcin,
for the swcarin;^^ of Mr. Papillon and >ir. Du-
bois sherilfs, aatl thci-tfore Mr. Papillou ami
3S7] STATE TRIALS, 36 Charlbs U. l6B4.^Pritckari v. Papilhm, [SH
Mr. Dubois had srood cause of action againil
Utem: and GoockuouKh said, he had Order
fhmi them to arrest ray lord mayor upon an
action, and dcsu-ed me to be concerned.
Sol, Gen. But pray, remember what you
said beiore, Mr. Keeling, nrby should the dis-
contented party, as you call them, be concerned
antl be angry with you, if you did not arrest
uiy lord mayiir?
Keeling. *The particular argument that he
useil with me to persuade me to it, was this,
Thut 1 liavingr a trade and dealincf among^ that
sort of peofile, they would think ill of me if I
did not do it.
Sol. Gen, But why should the party be
an^y with you, if you were not a uailifT to
avi^est my lord mayor, at the suit of Mr.
l^niilon Y
Keeling, I did not know the reason of their
nnij^er ; he might have something in his head
that he did not reveal to me. But that was tlie
argument he used, The party would think ill
ofnie.
8erj. Muynard, If you have done with this
witness, I would ask him a question. You say,
Sir, that Goodenough told you, the discontent-
ed party u'ould be angry with you if you did
nut do it. l^pon your oath, was the discon-
tuitcd narty named ?
Keckfig. No Sir, but that party of which
Mr. Goodenougl) and I then was ; and they
were the discontented party, I think ; for they
were so discontented, that they would have
killed the king and the duke.
Atl, Gen, Tliat is an answer, I hope, to
your fiucstion, Mr. Serjeant.
L, C. J. I thiiikf when he names the Good-
enou|[^hs to be of the party, nobody ([uestiuns
but they were discontoQtcd.
Sol. Gen. He has explained will enough,
sure, what he meant hy thf^ disrontentetl |>arty,
those that were so discontented thai they would
have killed the king and the duke. * Those
were the promoters of this action, and Mr.
Keeling must engac^e in it, or they would be
displeasc^d. Now, my lord, we shall call Sir
Harry Tulso and sir Uobert Jcileries, to shew
whatthe coroner did.
Keeling. I arrested Sir Harry Tulse after-
wards.
Then Sir Hariy TuUc was calletl.
Mr. Ward. !\Iy Ion!, wo d<>sire sir Harry
Tulse n»ay not Im: su oru, we have an <jxcep-
tion to iiis tcstitnoiiv.
L. C. J. What IS your objection ?
Mr. Ward, Uc are infurniid, he and the
rf^tof the court of nldermen havr joined their
nurses to carry on this suit, and then, witii
submission, he is not a go.id witness.
L. C J. Ask him that <piesiiou, upon a
Voyordin*.
Then he was sworn upon a Voycr dire.
Mr. Williams. Pray, Sir, is there any order
of the court of aldermen to lay out money for
this cause, out of their joint purwn*, or the
p«blic Ci^ Mock ?
Sir //. Tulse, Not that w« know of.
Mr. Williams. Pray, Sir, do you
whether sir William Pritehanl laid out moiiie|r
in it, or who else doth ?
Sir H. Tulse. I cannot giTC a positive an^
flwer to that, who iayeth out money upon it,
nor do I know of any such order as you speak
of.
Mr. Ward. Sir Harry Tnlae, though yon
know of no such fonoai order of the court of
aldei-men, yet is there not some directioD b^
tlic coui-t of aldermen about expondiug moniw
in. a joint way ?
Sir //. Tulse. I assure you, Sir, I kuovr no-
thing of it
L. C. J. Come, he has s^iven a full auwer
to your question, swear bun. [Which wai
done.]
Mr. Holt. Sv Harry Tnlae, now you wn
sworn, pray, will you giy) an account of wbnl
hapi»ened about this matter, tvithin yonrkwnp*
ledge ? Pray, tell the whole story.
Sir H. Tulse. My lord, about four of tko
clock in the afUirnoon, this gentleman, and tMO
more, came to me to my own house, and ho
(Ud arrest me (I mean, Mr. Keeling^, thai wm-.
sworn here before me) at the suit of Wrm
l^iliou; and another of them did vnttLnm
at the suit of Mr. Dubois: Said I to then, 1
do not know tliat 1 owe tliem, or either of tbaB«
a farthing. But what must I do P he toU mi^
it was only to giire an appearance. 8ud V
gentlemen, I shall oonsider of tliat Thai,
suvs he, you must go to my Lord Mayor* Whp^
w6ere is lie,) said 1 f Said he, he is m the ent-
tody of the coroner, at his house. Where, M^t
1 ? He is gone to Skinner's- Hall, nid h»
This is well, said I. So I called for my Mn-
to hring my cloke. Then they told me, if 1-
pleasefl, tliey would take my word till to-
morrow morning, if 1 would promiaeto appeon,
I told them, they mi^ht do as they pleasea. So
tliev left me ; *and 1 went first to mj LevA
Mayor's house, hut found him not there ; M B
went down to Skinner V Hull, and there 1
found iny Lord Mayor all alone, and no aklo^
man, only the offieers. I asked his '
how ho came there ? He toUl me, he
rested by the coroner. I asked him how long
he had been detained ? And he sail I, but a littlo
time : And indeed I think it could not be leogy
tor I met his coach coininL<: haek from ftkin-
nerVHall Yihtn 1 went. Vt'tei* that, lie WM
detained there till about eU-ven of the clock or
thereiilKiuts. This is all that 1 know of it
L.C.J. What hcrame of the government
of the City all thut time ?
Sir H. Tulse. There was presently a ffreefr
niM^e iill about the C'ity con«*crnlng* my Lord
Mayor's lieing arrested, and abinidance of pe^
pie were gaihercMl together al)oin the door, bnfe
there came a compaiiy of soldiers of the trained
bands, nnil they kept all quiet. There weregreil
apprehensions of an uproar. I saw noftiin^ e#
hurt done, though. And I a.Hked Mr. Himm
the coroner, who was by, am I a pri<Knier toOT
lor J waa arrested to-day, by n wa
Iv be fnMB joQ; Says kr, I luiTe » writ
' you, and now yon ar# bort, I cannot
iRhtiR von have ffiven t
[SSO
hiy«n^po, ^ ^ ^^
Si ft took inyMtf to he detained there with ray
s given an appearance.
Uri ^Uyor in enstody, and staid as long aa
hertaid, and went aivay with him.
Mr. SUcorder^ (Sir Thomas Jenner.) 8wear
^. Wdb, the Gommon crier, and iir John
ftak.
Mr. Wellt was sworn.
Mr. Recorder. Mr. Common Crier, were you
il my Lord Mayor's house when this hubbub
was made ? IPray tell my lord and the jury
what voo know A' it.
Mr.' WelU, Yea, I was ftbere.
Ifr. Hoit. Then tell what pasC
Mr. Weilr. I was not in the Halt where my
Imi anyor was, but in another room by: and
teeMesK came running in to me, and tokl
■^ I auBt coBw to my lord mayor quickly,
ftiba wan aireafead by some people. When* I
ciHi^ I Ibond there were none of the sheriffs
iflnnlhac oand to arrest people, bat the room
HiM of oUmt wraonB. My lord mayor bid
■iliAetheairord, and go along with him, for
teiMUpA Ulmw was not then ju^ at hand.
Ivfcai hb lordahin whither be was going?
1^ eHsner naid, he wm his prisoner, and
■■I ft '''V ^'^ ^^^' ^ ^^^ house.' My
laivifvbidine presently send out the om-
MtonHBon a hei|tenancy, which I did. I
Mn4 Ai caroner and his men to be gone ;
', ^ou let my lord alone, and go
~ieaa? No, be said, except my
an appearance, be must go
f aAk liina. I then asked him whither
wi mmat fip ? He said, he had no place
»eiPB hoaseto carry him to, and thither
WMI ; where when we came, my lord was
n little roem by bimsdf, where were
ntm-aeif and tiie coroner, as I remem-
ht. Wy lord nutyor bid me (^o and see fur
Mnaea Edwards and sir Harry Tulse, and
■f kri oinyor that now is, and so I went ;
bt I Iband they were arrested too before I
1^ CL /. How did my lord go away from
Ifr. Wtfis. In his coach.
iff. Oen. Were you by when he went
■Jf f And who was there?
1 m, Welh. Mr. Brome, the coroner, wns
I MAere when my lord mayor went away, but
I iae was Goodenough.
L,C.J. Ay, he was in trusty hands upon
|B|WM^.
Mt.Cen. Urn soldiers prevented tlie de-
mUl,
\ ^^ari so they lef him go agnin
I m. Recorder. Swt
r;-
Swear sir John Feak. [ W hicli
l!lir John, what can you say to ibis
V J. Peak. My lord, I had order from the
*%BKy, to rmae my regiment upon the
tf vy lord mayor'a being arrested, which
li • nrr Kltle time, and came ^^irh my
' ^MYf where I heani my
lord mayor was, and prerented any atir, as it
was feared there would have been. Bot Mr.
KeelUigi I believe, can tell something more of
the desigm than he has spoken, for I remember
at the trial of the Traitors at the Old Bailey,
be did say, That after my lord mayor was ar-
rested, they did intend something, but their
hearts misgave tiiem when tttc regiment wa»
up.
X. C. /. That is nothinfr to this eause what
he said there ; now he reuicmbi rs nothing of
it. Have you done, "^^ntiemen, or will you
call any more witnesses ?
Aet. Gen. We rest it here, my lord, till we
hear what they say to it.
L. C J. Cume then, what ire you to say
that are for the defendant ?
Serj. Maymrd. May it please your lord-
ship, and you gentlemen of the jury, I am of
counsel in this cose with tho defendant, Mr.
Papillon. I see, gentlemen, it is a cause of
great expectation, and by that means thejr
would make it greater by far, than indeeil it m
hi itself But I suppose, you who are upon
your oaths to try this issue, will duly weigh
and consider what it really is. Gentlemen,
the record tells you what it is, an action upon
the case, whereni the plaintiff declares, that
the defendant did arrest him, being then lord
mayor, without any probable cause, and out of
malice. Now, as to that, gentlemen, 1 con-i
ceive and think, I may appeal to my Lord
Chief Justice in it, for (firection in point of law,
that my lord mayor, if he do mistake in his
office, and do not do that which belongs to him
to do, he is as much subject to the process of
law and actions, as any private person in the
city of London. If he docs any man an in-
jury, or does that which is not ri^ht in his
office, by which another person is grieved, he
is liable to the prosecution of any particular
subject the king lias, that is so grieved by him.
Then they allege, that this particular action
and arrest thereupon was prosecuted and <ione
out of malice, and without probable cause.
Now what have they provetl of that ? 'J1icy
prove the thing done, that he was arrested at
the defendant's suit, and that he was kept in
custody six hours. Hut if wc can give yon
any account of a probable cause for it, that is
snfficii'iit to justify us from this action. Gen-
tlemen, the (piestiou that you are to try is not,
whether this man or tliat man were duty
chosen into such an office ; but whether there
were any probable cause for the dctciid.ant to
conti'St altout the choice ? And herein the rnso
will fall out to be thus: There was a difference
in tlie c\Xy of Loudon, as is very well kiioun
to every bodvi about the choii'c of sheriffs for
the city, wherein the defendant was one of the
competitors ; thf.re were, upon tlie noiuinution
and election iu the hall, a qfrcat many mtirr
voices or suffnu;|^rs for om? than for the otlu r,
which was certitied to tlic c<furt of aldenurii
and lord tnayor, as is usual ; but some contest
bein^, a poll was deinandt^l and granted, and
upou tliat poll, my lord mayor was plea^d v
S31} STATE TRIALS, 36 Charles II. l6S^.^PHtekard v. Pillion, [3S?
ileclare tlie election on one side at^nst Mr.
I'apillon, who was yet aiipreheDdLiI, by the
tint choice, to be one that nad most siUfrag'es.
But several mectitif^s there were, and several
common halls assembled, so that it was a con-
tested matter, and, as I said, thei-e had been a
report maile on the defendant's behalf. We
insist not upon the riju;ht of election ; that has
been otherwise deti-nnincd. L>ut u hen he is
put in nomination by the electors in the city,
and has many sulfrages, and he conceives him-
self rightly chosen, and* they that are mana-
gers of the ekection ^ivc such an account that
in their jud^^fmeut he vius chosen, that surely
was a probable cause for him to proceed upon
it. And if there lie but a proiidble cause to brinjijf
this to a question, no doubt he micht very
well take the course the defcudant took. Mere
is no arrest without legal proce<«ft ; nay, their
own witnesses say, there was an ofler to take
an appearance witliout puttinjjf it on so far as
an arrest : if my lord mayor would have but
given an appearance, there had be^n an end,
iNit he did not think fit to do that, and so the
|)rix:ess of law was executed upon him. Then
nerc is the rase in short : A nian thinks him-
self rightly and dtdy chosen into an ofHce^ and
has probaulc n*ason so to think, for the judges
of the election think so too, and deliver that as
their opinion : so that though he is mistaken,
as the event proves, \et he is not alone in his
mistake, nor without* i^ound of Ids apprehen-
aiou : then if it bi> (under favour) such a man
has no other proceeding;?! to take in the world
for settliuLf this mutter, but to appeal to your
lordship, and that great court where your [nrd-
ship Mt.«, to have' a writ to command the
mayor, ur other iiropcr oflict-r to swear such a
mail iiiio thcoi2ic'>. or shew good cause why
he doth not. If \\w mavor, u|K»n tho re-
reipt of the v>Tit, tlunUs lU to obcv it, and
swears the man, all is \\eli : if not,' he must
make a return of the writ, with the cause wiiy
the command of li;^: urit)> hut oL.-ycd. Now
the suiT^'siiou of the writ is, thra lui was duly
cboseii uito such .in otiii'c. :ind therefore lie
bad a fair way lo put this luatlrr to an eufi ;
if he would have ie:urned he w ;:<j Ciii.rTcn, or
not chosi'ii, ihcfL \\?A bern u:i rnti of the bu-
siness, whirh hi* might ^umUi* i:..cur) to have
done in obedicsi'jc to tin- ki:i<; s urit. What
tlien follows upr^n his not doiiii; so '.' 'f he party
that is grieved hereby, ht>s no o:luir cour:^
to take, but to hrin^' liN :utioii at;-ain*>t the
person; zeal and earnestness to have right
done, to a man's self or another, in a 1ml
course of justice, is not malice, nor will mase
the prosecution of tlie action unreasonable and
^^rroundless. Have tliey proved to you, gen- .
tlemen, any particular discontent and malice
that is between the plaintiif and defendant? No
truly, I think, by all the proof that has been
offered, the quite contrary does Bp[iear. The:
defendant took out a Afaudamus, directed to
the plaintiif, which was not duly returned:
what then doth he do next 7 Dotb he most
violently arrest bim ? That, with submiasiony
he mignt do, and no oflence in law : no, bot
he doth not do it, but only desired from time to
time, as we shall prove anon, that he would bot
give an appearance, that would have put a
conclusion to this dispute. There is no ap-
pearance given: whereupon he is arrested,
and detained in custody .six hours. If a man
be once in the ofiicer's'liands taken upon legal
(irocess, how long soever the officer kesfiB
lim, is not at all to be laid upon the nenon
that brings the suit ; tliat is to be lookea after
by the otticer himself. Whatsoever was the
usage in that manner, we are not to <
for (though it is plain an ap|>earanoe
have done all presently,) we shall profewe
gave order to use all detereuce and reqwct in
theworid. And besides (though I would not
speak it to iuvalidau an}j of the evidence gavca
about the right of elocution one way or other,
yet) tliere l^ing a return of the defendant's
election by the sheriffs to the court of aUrr-.
men ; but they l>eing.of another opinion, gavn
order that those that thought themselTfls ag-
j grieved shonld take their remedy at law:
which order we have pursued in that nyninr
coui-se that the law has prescribed. And I
hoiie it will never come to that, that a naa-
(though mistaken) conceiving himself to \vKsn
a right of artion, and suing out the Idng^
writ, shall suffer for so doing, uukss particiUBr
malice be made lo appear. Here isagrat
noise of dama^, and disrt*pute, and dtsgraen,-
to the plainiift and his office, and be ha3 ben'
pleased to reckon his onu damages at 10,000l«
iVe sa\ he has siistaine*! no damage by any
thing we have done, but we are qui^ Mt;
guilty of this uurrasonable and malicious pip-
stxrutifMi l-jid to our charge. And that we are
nor iruiliy. tiie matter that has been opened, ««t
ihiiik, v'ill sur.:cioiuly d<>clare. Fur if there
nUM a Ci.iito^l abou; tlii* election, and the
mayor fori*. This Ki\y\r>v ihi' di Jaulant took, [ rirt< rcturntd it as tlitir opinion that the de-j
bv taking out :i w.it a^aiuM tlie idaintiii*: and
w*hat was the eflVoi oi iliut wv'ii / U is indt*etl
charged \wsv l:\ ll;«' onr.:iM'l on tlic ot!;»p side
that there wiw a design of a di«icontented parly
in it, aud 1 kii>>w not »ii:U, <ii]ii a gre:tt ^vzX ot
stir made that a i-vkuntr o/ihi'iiiy ot London
should arrest my b nl iivjor. ft may be it
was not in rcvtitiuly dune, but yei if he
thou'^hi he had good 'cause ofactiun against
him,* he might do it lawfully. Doth this
prove to vou, that this nas maliciously aud
unmsiinalily done.' Malice must be lo the
li'udaiit A^i^s chosen, though they and hn
t«M» ^*pre iiiistakt'n. mh that might give a |inK
iMblegrouiMi fo»- his pur^uiug the course he dM
tiike.tind thevcr,> CAiiiitufaliKuuieu^aiHlthelor^
maj or. bltlding them take their course at bw, we
sure shall nut be punished tor it. We did nsi
priv^^rute our «|JCsiion iu any u.aIicious wajr*.
but in tiiat course that the' law allows, wif
taking out the king's writ, aud m c hope ihv
latv will pnitect us tur it. ,
Sir. Wiiliamt. ^\ill vour lordship hm
pUttscd to spare me a woril on the-
STATE TRIALS, 3()Chaeles II. iGSi^^Jbr/ahe Arreut
tWtci
^^■ilil Mr. Scrjeatit Mayiiard. 1 um ot* conn-
^K^i^t ' wiiti Air. PapilluD, the tie- I
^^^|Et 'li(»D* Wtf do not insist iipm
^^^nhr u" ''ing to assrrt <mr
(1 vvc we r*f elected,
. .,^, ami wc rested i^a-
^ e C4^>me tiere now before
Myniii|^v< in: whether we had any
piiobtlite cause ol ojchun, upon ivbicK we mi^lit
dot this nrucf'j^ mentjoned in the decla-
|l ivhich IK a Capias upon a Latitat i* And
p iiisist upon itf that ttiis actioa of lUe
ttffV must fall u|R}ii the i^ue joined^ iCwe
~ ouk mii^tf you^ Httd <jht'W that it was not ma-
ilBimn> and without probable cau«c. And
||0B|^i our cause of action ai; Ju'^t tlie plain-
fSfSSw -' ^ the <'«eot not tu be a $c^^ and
Mtfci< yet it it wore proliabte^ it will
evade u.^ < .<^ ^^nv^ and that is att we laboui-
for, TUi y do not alfen^pt to ph/ve, at least-
•Re I hare not heiird any tiiioflr of it, that thi^TC
lias All Sprees ujaiice, any tlun|? either snid
ardoiie bylhedeiendanl, luotethaii the cau&iiig^
lo Ue arrcsteti upon this writ. It iit very
know II, it wo«s iu the city of London a
ttry Qiuoh cantroireikd questioHf whether
Ht' ft^»p4Uun And Mr, Dubois, or sir Dudley
uh aud Mr. Rich, were chosen shm-ifts of
bo Y 1 would uol run over the history of
dot loo wtU Lni)HU and rememl»ered,
\ons that \s€v* m the city about it,
vtcre so much disffati^etj with the
5ir Dudley North and ^ir. Rich,
•» tIij|>yHj^r them not duly elected,
t have the court of kinjX^H bench
^ nt of MandanTtts to swear Mr.
Mr. Dubois^ Tbta Maud am us
red for, and grauted ; and to this w rit
Bttjor and aldermen, to whom it was di*
iii^c a return that we were not elected
of Lotidou, which return waa appre-
Iddied to be talae ; and really to try the truth
of lldi return, was tJic acticm brought againt^t
tbepllAfilitr. A man that is injured by a talse
fttwiit hath iudeetl no other way to right hint'
•eH^ bat by hnnijinij an .icuud against thera
thalflcmde it. Lpon this actum bi'oug'hl, I hope
yog lire jottisficrd^ emitlciuen, from liie eviiienc«
lint lias been already mveo, the dcfendtint
pOMKcded re;;:u1arU and orderly, in a decent
OHOncr sj'jHyiQ^ htmsielf to get an appearance
tt^kk ai!tion. And ue shat) proie he did so;
kif ftrtit, he took out a Latitat aghast my
M uyiyc»r, aud by the attorney gave him
Mtke ofit^ and desired an appearance ; w that
ike <|Miertion in dii»pute mi^ht come to lioine
But he was not pleaiied to ^ve
ippcftnuice to that « rit, !io we took out a
fty gave blm Oiotice ot it, and desired an
but could have no appearance;
ipoo we took out an Alia^i Capias,
i4trii i*i thi^-^vrit Dientioner] in the declaration.
ad tl r, who hasbt'en named, wa3
tbcn I noold be called upon to make
MOME return to hiK wrtt; which Ije acijuainled
mj b>rd mayor w ith, and desired him lo ^ive an
Hrjugb lie tdosi^ t& 4o ; the
[334,
officer wa!« constrained to arrest hilD* ta «xe^
cute tlie king's writ, and yoti hear how
treated hhn with all dn^ respect, and ca
hiin to liisonn house, where he «itaid son
hours, and then went away, AH thift tin
were wc witisfied with what was done,
erpectcil no mure than an appearnnce, wh
at lii^t was g'iven. Upon that appeamm'>e
did de^'lrtre, in the be^inningr of Hillary
Eastcj' term (83) : but it tell out, that in Easter J
term (B.S) there was an information for a riotl
upon ^lidsummer-ilay belbrt% abcmt this coit^j
tested eleclion, came to be tried. And that.]
i-oming to trial, 20 Mali, aud being' found tob%I
ari<it, and the she ri^s Rwoni to he iluly cict tedy
iJicreupon wa were abundantly satisfied
we were mistaken, and under misapprehen-
sions, and that our caust- of action ivould n<
hold, and we did discontinue it. Indeed,
we had jirAKceul<»vl our action after ihat«
wouhl hare betu more like an ang'ry and i
fiilly prosecution, anti the whole haM* had i
worEe con^l ruction, than the tliin;!^ in itscll
wnuhl brar. Hut when we found the opmioa
of the court to be a^inst us alH>ut our eleclion^^
we imiuediaiety discontinued our action*
Gentlemen » we shall prove thc«elo haf^e been
our proceedings, and that, I hope^ will satisf;^
you, wc arc not guilty, according as we havi
pleaded.
Mr. Ward, May it ]deasGYourhirdshjp, t
you, tjfeutleiTien of the jury ^ 1 am of counsel <
the same side, for the defendant, and desire i
be heanl one word, as to some thing?* tha
have been said on the other fiide on this caus<
There have been some tpiestions asked, that<
tery much reflect upou the defendant, aud
which I woidd take out of iliis cause. 1 shall
take notice, tirst, what the questions wc
and tlieu tpve them that regard and answe
which they deserve. That which in un
g^eutlemiE'n, by M'ny of crimination, in tliis <
anj^ainst the defendant, and an unjust as well i
foreign refleeiion, not at all coucerniu*^ tt
cause, is, as if the defendant were acquainti><|
with the insurrection and cou'qnracy that wa
intended aj»-ainst the king's life, and tor sub
version of the sjovernment, and procured lb
plaintiff, then Jurd mayor, to be arrested, i
fnrther and promote that inaurrectioti. But i
that w as insinuated only tor rolkciion^s sake
so i hope you, g^enllcmci], wilt l»e plaased I
take notice, that not one word of any aa
thini^f is proved at all« thiit the defeudant eve
knew of any intended insurrection, nor tlu
this »a« done with any such design : for eve
their first witness, Keeling, from whott^ lieiiij
employed by the coroner in the execution i
tlie writ upon sir William PritchaT*i| the pbiiv
tiff, they would argi|,e that }»orueihioar else wa
devigned in it, doth g^ive a positive denial of an
such tliincr now upon his testimony here. An
Mr. Pupilion the defendant never knew bim i
his lite, nor employed hiui in this busiiiesa, ud
unlered thai be should be out ployed iu it, ua
ever saw htm ; but the coroner ^Ave him 1
warr«fitt9 axecuta* If, Ibor^bre, t^eeUn^ and
333] STATE TRIALS, so ChablbsH. i6s«.— PnYdbirtf «. F^/oii, J3S0
to ftiiy attorney, imil ixderum m appeamHs^
antl UKii, I hgpe, t]iepeaee<irUfte kiiigfdoni bad
bem in no (leril fir«m audi a tlei^ii aa ibii
anest Wkicli I ivould not have dicb-
tkmed, nor ahould liave taken to be at all
ooooenied in the isme nnw befbre you to ba
tried, but diat I find them to be tttken iM6
the questkm, when I hope you will oonaider
they are no way uatenal to the ]ioint in cob-
troreray. Now, p^eatleinen, in onr defeaoe
against tiiis suit ot the phiiiitiflr*fy weahaHoaH
our witneasca to prove what we have opoied.
And oar -deienee wiU be in theae atepa : -fin^
to shew the inducement to our action agaiaaK
the plaintiif : which will shew tiiere waa a
probable cause. Secondly, give an aeoouM of
tlie reverent cania|»« and behaviour towaHb
the plaintiff in tlie prosecutiou ; how wMi ff»>
iterated applicationa it was only deaired 4faat
the plaintiff woukl give an apnearanoe, whU
hewasnotpleaaed todo; aucl that-theroupa*^
witli great civility, the king's writ waa ODe^
cuted, as indeed i see no proof to the eooliM.
For neither the coroner, nor those other paaple
that ^ve their assistance to hnn, were dl all
rude in their carriage to my lord mayor ; Imtas
soon as the arrest was made, they were dX
turned off, and the coroner staid alone widi
my lord, and went with him in hia lordaUp^
own coach to tlie Skinners- Hall, wfaioh was
the coroner's bouse. Neither waa tkave any
thoig ill donoj after all tliis was past: iw,
upon the plaintiff's appearance, the aow di^
fendant declared in liis action, and intaadad to
pursue it ; but it happened that afteiwaids, in
a short time, these things suffered .ftom de-
bate, in a trial tliat was hei-e about a riot it
this election, where the question of the right
and election was determined on the otficr side,
which gave the plaintiff in that action, the
deiendaat in this, satisiiiction that he was in a
niistake; and so he tlionght tit to disctniti-
Goodenonglt were ooncemcd in any ill
ness, and liave takeu upon them to do that
which they ought not to have done, that doth
not signify any thing in this me, nor ought to
turn to the defendant's prejudice. Nor, if any
thkig were done by the officers, that were to
execute tliis process, that were a Misfesauce,
or a male-executiou of their office, that ought
not to be impute<l as a fault in the defrndant.
Bntfor this matter now before you, the case
will depend upon this point chieflv, whether
the now defendant had a rcasonalm cause, or
probable ground, to bring an action against the
phimtiff at the time when it was broi^ht, and
this arrest mode i* For there is many a man,
that at the commencement of his action, doth
conceive in himself, he had a good probable
cauise of action against another man, that in the
event of things ftods he was mistaken, and
hath no such cause ; and tliercupon desists the
prosecution of it. Therefore the probability
of the cause, at the time when this Act was
doae, is the question you now are to try. For
we are not now considering, whether tbat pro-
bable cause did continue ami prove a good
rause ; the event of this matter has proved it
Siite otherwise. Indeed the original qnestion of
is whole cause was, Who were only elected
•hcrifis? And that at the lime of such election
made a great number of votes ])assed for the
/leiimdant, is, I think, very notorious, both vpon
the lifting up of hands, and upon the poll.
These thmgs we sliall offer to you, and make
it ont that these gave occasion to tbe defen-
dant to conloJt tlie election, and consequently
to the bringing of the action that the plaintiff
wan thus arrested upon- If then there were
such tilings as these that we have opened,
which gave a colour to coiitrovcit the right,
and the defendant pursued the method pro-
scribed by the law to bring it to a determina-
tion, and there was no particular disrespect or
incivility offered to my lord mayor, then sure
there was no reason tobriiig this action against
us. And that there was no indecent behaviour
uaed towards the plaintiff, doth appear from the
evidence that hath been given of the whole
transaction. All that was desired of my lord
mayor was but an appearance. For tliiii was
indeed an action thi't did not require bail, but
an appearance ; thougii. I nmst neeils sny, I I
never knew any one ss) avtiNc to ir'ivc. nii ap-
pearance to nn action as tlie plaintiif was ;
for atler a Ijuiitat and Ctwias htken our. ai'.d
iiuo tiint action, an<l proceeded no furthei^—
L, C. J. No, Air. Ward, that waa not tha
question detennmcd then.
M\\ Wara. My Ijord, I humbly conceifa
the issue of lliat cause did determine diat <
tion— —
1. C.J, No, no, r tell you it waa not the
question.
Mr. Ward. I must submit it to your hud-
Khij».
L. C .T. I pi'rceivc vou do not nndnitMd
the question thnt was 'then, nor the qiu. ilii
beiug frequently acquainted with it, ami at i tiiat is \mw. ' \ on have made a long
length upon applicatian aOcr thcta'/.inp; out of
the^/i» Cai;i<fi«,and many attendanroN, u ith all
the deference and respect iina>j:iii»hIo. hoth to
his person and office, not so much cs a bare
nppi'arance could be obtaiped. l^)ion the opon-
uii; of the declaration and the cause, you l:avc
been told of the great dangci-s that ncre in
the case, as to the intringemcnt of public
peace, and the government, which has been
Tcry much aggravatctl on the otiier side. But
had the reasonable request of the defendant by
his altomcy, or the officer, so ofWn repeated,
baan but compliud with, it had been but s«iidlug
here, and notKincf at all to Uie puqKiae: yi
do noi uitdcrstcUid what you are about, I 'toH
you it was no such question.
Mr. WurU. My lord, I was onh' giving anac-
rount of wiiat we should prove as to ttie iSut'
ness of onr proceedii?j»>j
L. C. J. iiut 1 must interrupt you, and %A
yon, all }'nu have said signifies nothing. Mmk
as to what you mention of tlic trial for tbe ntt^
I say, if tlierc he any electian to an oiBee aft
any time, that is controverted or doubtful, y«K
halve forms and methods of hiw tofl"^ ' —
the coutro voTky— —
m
STATB IWALS, 96 Chables II. l6S*^orfabe Arrea.
[335
Mr. Wkrd, And weMij, with anbmission,
■J lird, we hare only {mnoed tuch form and
£. C. /. Toa are not to try rig^ito by club-
liw, by riots, by Doise, and by tiimults.
fluiiuiL, yoa are fnistaken, to say, that was
tefsestiM upon the trial of the Riot No, it
ttSMtthe qncstiDn, bul the defendants there
w«n trM for a oolorions offence, and di«or-
My tMnvkiMNis assembly, an assembly that
M fte to have set us tc^thcr by the ears,
ire you niii
Wym will speak,
hmL Do not
AilisaB i
moBt not talk after that rate.
sk, apply to the business in
uaJke sucli excursions, ad cap-
N^ii/am, with your flourishes; tor
I tbat is designed by your lonif ha-
But 1 must nut suffer it. I i^ill none
Dcl, nor 3'our garniture. Thebu-
of the court, is, and bv the grace of
9ai^ it shall always be my business, and so
f^fkmM h9 the coansd's too, ' Servare jus
Shim.' But I see you do not understand
'AifvcatioB, and that makes you ramble so
■Kt njoar discourse.
Mr. Wmrd. My lord, I ilesire always to do
•Wia^; and do it as well as I can. I know
iVfWdl, and hope to apply it to this case,
te ia aanestion of right there are forms and
MAaft or law to be pursued, and I would de-
ftiiaj ciieDt from this action, by proving he
HiiBaB. that mKhod ; and when he apprc-
baMktkad been before mistaken, hedesisted
Aiwtebe bad begun
' Lax I tell you, I perceive you do not
MlartHd tlie question.
.MLlFarrf. It' your lordship will jofive me
lMelicx|>lain myself, 1 hope I shall satisfy
jHrlwdsbip.
L C J. Ind<^d Mr. Ward, you do not nn-
iaMnd the question at all, but launch out
Imi aa ocean of discourse, that is wholly
aiiefram the mark. I see you do nut nader-
ttadiL
Ifr. Ward. Will your lordship please to
karrae
JL C- /. Ay, if you would speak to the pur-
fm ; but 1 cannot sit here all nii^lit to near
jm anke florid speeches about matters that
mt foreign to the point before us. Come to
fe«ncstion, man; I. see you do not under-
M what you are about
■r. Ward. My Lord
L C. J. Nay* be as angry as you will, Mr.
Wad, 1 do tell yon again, all you hare said
hasliiiBg to ttie purpose, and you do not un-
* the business.
, Then there was a little hiss liogun.
^C.X Who is that? What in the nnmc
trfOad! I hope we are now past that tinic of
humming ami hissing shall be used
oTjustice; but 1 would fain ktM)w
that dare to hum or hiss witilo 1 sii ' niav^r nhoi>t it /
hissed or hummed ; and I do not question biit
they hare as good a will to it now. Come,
Mr. Ward, pray let us have none of your fra-
graories, and tine rhctoi-ical flowers, to take
the uople with.
i^lr. Warfl, My lord, I do not do any such
thing, but if your Inrdship would please to hear
me, 1 would explain myself, I hope to your lord-
ship's satisfacUon, and the satisfaction of the
gentlemen of the jury.
L. C. J. Hear you? Why, I did not in^
tcrrupt you, man, till you cafnc to launch out
into extravfigant things that did not at all con-
cern the cause. Keep close to the question
we come here to tr\', and 1 will hoar yon as
long as you will. I'^hc sinpfle question is here,
W^hethcr there were a probaMe cause for your
arresting the idaintiff, or not.
Mr. Ward. My lord, we did apprehend, I
say, that we liivd a probable cause ; but when
we found our mistake, we discontinued oor ac-
tion, paid costs, and have a receipt for them.
This was it 1 was saying
L, C. J. Say what you can, in God's name,
that will con^tuce to the point in band ; but do
not make the |jco:iIe belies c as though the right
of sheriffs, or not sheriffs, were determined
upon the trial of a rioi .
Scrj. Muynard. There arc. these things that
are proper to be con«idere«l in this question,
whether the cause were probable, or not pro-
bable ; and if not probable, whether malicioua,
or not ?
L. C. J. True, brother : if people will but
understand their business, it is reduced to a nar-
row compass ; but if they will not understand
what it is they come about, they will rambia
from the point, and who can help it? But we
must keep to whr.t ir> before us.
Mr. WUUamit, ^\'e shall make it out, that
notliing" was dune hut very civilly.
L, C, J. You uiust ra«ike it out, that nothing
wns do;ie hat what you had probable cause at
IcHst for.
Mr. Williamx, We will, my lord, apply our-
prlvos to that which your lordship directs.
C'AX M\\ Brome, Mr. Courthope, and Mr.
Cornish.
Mr. Brome sworn.
?ilr. Ward. l^Tr. Brome, are you sworn f
HnmK. Yes, Sir.
Mr. Ward. Hare you the WTits here ? TIjs
Latitat and the t'apijis?
Jiromr. Trulv, Sir, 1 have not ; I did not
brlRif tlipm witli me, thry arc at home at my
house ; if you ploasi*, I will fctrh them.
Mr. ]} rrd. Pray, can you tdl, Sir, when
the first \^rilwas rt-turnahic .'*
Y.rome. In lliliry term.
Mr. Wrrd. \Vl:cn you iKi.hli.-^t writ brought
to you, Sir, ^vhat did 3"ii suv to my bid
k« 1 wifl assure him, be he who he will I will
■ hrthe heels, and , make an example
L ladced I know the time when causes
i» it carrMd according as the mobile
Phvuc. 1 W(Mit to my I'»id mayor with ^Ir.
Cloodrnoufjli, \\^\y\ dt^iri-d iiiv lord that lit*
would apjM'jir ioii. .T"! M". Ci(»o(Ienoui;htn»d mo
he lifid di.>^ircd of !;iui lii!.n«Llf bL-fo:'.*. But hu
9S
3S9] STATE TRIALS, 36 CuAm-ZS II. iSS^^PrUehsri v. Pdj^ltm, [MO
■aid be would give oo appearaDce. If I would
take bim upon the writ, I might do ap 1
pleased, and he would consider, and do as he
should think fit ; but he would not gire any
appearance. I told him, I had writs against
seFeral of the aldermen upon the sanue account,
and that I would wait upon them also ; and I
did so, and desired them to appear, and offered
to take an appearance from thiem, and gave my
lord mayor and them time to consider of it,
and came again ; but they told me, they had
considered of it, and would give no appear-
ance.
Mr. Williams, When was this. Sir ?
Brojfie. In tlie beginning of Hilary term, to
the best of my rcmembra[nce.
Mr. Williams, What time did you give my
lord mayor to consider of it ?
Brome, About a week, or some nine or ten
days time, as J remember.
Mr. Ward, Where was it that you had that
answer^ that he had considered of it, and would
give no ap|)earancc ?
Bromc. It was at the court of aldermen.
Mr. WHliaiNs, M'cie the writs brought again
tfi you ?
Brc/ne. There was not time to make a re •
turn tben, and so they let all alone till a httie
before the U.«];iiming of Easter term, and then
•ne day Mr. Goodenough, the attorney, brought
me the writs a^n, and threatened to complain
to the court ot me, and acquaint them, that I
had neglected tlie execution of the king's \iTits,
two of them.
]\Ir. Ward, Upon your oath, Sir, did he
threaten you, that if you did wA make a re-
turn of the writ, he uoiiUl comMhiin T
Bromc. lie said 1 had c.xiiostd him to tli«*
complaint of his client ; and if 1 diil n'lt do it.
he would com;iIain to the com I of me: if I
would maki? a return, as I ou'^bt lo do, well
anil good, il' not-
GibsoB, and intreated him to let my lord mavor
know, that I desired to speak with his lordship
at his leisure ; aftervi'ards, when I came ap t9
my lord mayor, he asked me> what wai mv
business ? I told him the writs were renewed,
at the suit of Air. PaniUon and Mr. Duboia, and
I was pressed to make a return ; and I desired
his lordship that he would he pleased to gire
an appeerance. He told me be waa ready to
aobmit to the king's writ, but would not give
an appearance; thereupon the officers named
in the warrant by my command did arrest him.
Mr. Ward. 6ow often did you wait apoB
my lord mayor for an appearance upon both
tlie writs, before he was arrested ?
Brome, Several times ; I cannot exactly tdl
how oAen.
Mr. William, Had you directions, if he
would please to give an appearance, to take an
appearance and not to arrest him f
Brome, I had directions to take an appear-
ance, if he would give it.
Ait. Gen, From whom had you that durec-
tion, Mr. Brome?
Brotne. From the attorney Goodenongfa.
L. C. J. Now, Mr. Brome, let me askyottft
question or two : how long had you been ooro-'
uer before ?
Brome. About two years before, or there*
abouts.
L. C. J. Had you ever made any wamntf
upon writs of Capias before?
Brome. Yes, my lord, several.
L. C. J. Who did you use to make ^r
warrants to, to be executed ?
Brmne, T never keep my warrants ; they
that execute them have them.
L. C. J. But answer me, To whom did you
make them ?
Brouic, To one ofthesherilTs officers com*
inonly.
L.'C. J. Then I ask you, upon your oatli*
Mr. Williams. If not, u hat then? Did he ' did vou before this time ever make any war<
^« ^*l .1 * : t?!„ l..^.L_^ ^' ^1 ,.-ll U i! . .
use any other ihrcatenings, pray, Sir, but that
he wo«ild complain to the court ?
Brome, Mc did threaten to complain of me.
Att, Gen. Vousay, Sir, he threatened you ;
what aiiswor did you make to him ?
Bromc, 1 did not use to execute writs myself,
I told him : lUcreMj)oii lit- did pnipose two per-
ikons to me, Mr. Kuelin«jr, and one Mr. Hur-
Jeigh, for he told mn thu shcriifri ctiiccrs would
not do it.
Att. Gen. Pray, Sir, did you endeavour to
get any of the sherijls oHjcers lo do it ?
Bromc. He told me he could not get any of
them to do it.
Mr. Ward, Mr. Brome, what did rou do af-
ter he had proposed those two jMTSiinii to you ;'
Bromc. Aiier I had given tlinse w;Lirants
to the officer he had named, I told hitn, i was
willing to go once more to my lord mayor, to
see if I could get an ap]tearancc of hini ^vlih-
out arresting him ; so I waited on him at his
house at Grocet's-hall, but found him then
at dinner ; so I went away, and canie again
about four o'ck>ck, and I 'first spoke to i>ir«
rantb to any otluT person, till such time as you
made time warrants to arrest sir Williara
Pritchard ?
Bromc, I have made several to the sheriib
officers, that I cannot remember now particu-
larl\\
L. C. J. But mind my question, man, and
answer me diierliy ; for I expect yon should
answer me positi\cly to it. Have you ever at
any time made any warrants to any other Imt
the sheriffs oHieers till this time ?
Brome, 1 cannot remember that I have.
L. C. J, How then came you at Ru»el1i
house to discourse with Mr. Goodenongfa about
who would be fit to execute the wnt, when
you used to employ the sheriffs officers, and
there were so many of them ;'
Brome. He t<dd me he could get no one of
them to execute it.
L, C. J. But there must be something mort
in it than ordinary, that yon and Goodenougliv
and all those other people, ahoidd come to niMi
about such a thing as this, to difioonrte md
consider who should bo fit to be pot intoa i
UX]
tnlliM t;
STATE TRIALS, 56 Charles II. i69*.—/or/alte Arral.
f34«
upovi a Opiiu, when be-
' j-> make it lo thoet* that
;i»-Ti til . ..^ ,. .-,....._ .....
I Im iKMniaalc'., i ,..*.^^ i i,.v ^.,.01-
it.
X. C» X Then iftu' t»p, if you ean, any one
r 1 Vrtii litre taken the
I «r til. ^ , Vhoce uame lo [lut
V*-«, tny InnI, I can.
L, C J* U« tlleii, let's hear it, wUeii ivas
Bf^
1 dM
mnj< iru
I came
iji v^iinin to put
r
JL C J. Uf--* .<;r..,.^ ;..... Ji,j he gtfu you ?
J^*»#. Hr tiejt in writinjj.
JCanfii^* fiifrr, mv turd.
£ C /* %Vhat was the meaning of that
«ivl thai was oi»pti l»y yo»»» ' *'»»* t^ie party
fo laf^rTf if vou did not ariik^t my l»i d
' Ibr that is "it, wbieb makc?s me so in-
tiklA thiK uiatter, tiuw these people
M«aaitt«u I
lit to ft r rest
u'tefi it : how
^y i5on«Hcr witlj yourself,
I rwrr. ir*^^^ ^ir P * . * m you ivere
to I
you -..r ,.M* .,,,1
fj^U lo be drawn in, unrt eui^iiged to
^kf^Eerling, I wtU tell > ou, u»y l<>riL
LC^J. Ay, and tell us what number of
m about thirty Or lorty.
1 '> ttiie attutiij;' them f
Xa&«^. lit£ wa« there same part of the
L C^ X Wrll, what was the ixason that you
k99ll|ei^gt3<i ahout thi« thiiiir?
I vrrtit
[r, Bremer
MilaHiLlf
lime.
1 caxD^ t
warraoi
1 came
:iy ;in
con-
i . that,
> ,,.,-.„ 4.jsierte<t
. ' fioroner, to ar-
1 loril mayor. I
»uccrnctl iu any
. ly unwilitug' to
tr. Kays Ulr. Good-
11, Vou wiJi diiiobli^L'
m^' ; ilu not doit.
I Ir. Hrom<^ io the company
•Wm L.c->icrirHj^ii e^^iid mo to you ?
lic^M^. 1 know nut tJiat truly, hut he waa
liii^ is ibir rompany .
L C* / IJuw many were (here in the roofn ?
XtWm^. Ahoiit twenty^ or more, a« near aa
ftaareMpber.
L C. /. Y«»fi, Brome, did you ever, when
|IB fVBiv««l a writ to iirn^si n maji» 4ud were
Hl^aa iAiifurit >j(trai it^ <-all a coiiJtult of
••ilyot In it^ before thia time f
Mfwtm. iiow.
LCJ,^ ^M>^ ii»> »-kdi-a-day thou wertoi
innocent in all this matter m a iniekmg' chilif.
Mr. Wiftiams. Was Mr. Papillon in the
comfMiny, Mr. Keeling^ ?
Keeihii^. No, he was not.
Ati. den. Mr. Brorne^ pray answer me;
when you had my lord mayoriu your custody,
how€!arac you to discbarjre him out of aistf>dy f
Brome, 1 was taken into custody mywif.
Mr. Ward, Did my lord mayor give an ap-
pearance ?
Brome, I waa committed to die compter
my Stir'.
Mr* Willuiwi. Were you by when it waa
agreed that my lord would give an appear-
ance '<*
Br^me, I believe not ; it was allenvards ai
1 have heai*d«
L. C. J. A-lack-a-day, it went stnmg'ely
a^ioiit Mr. Brome*s stoiuach, all ibis diiK *(
know it very well he had no tuitid to it at all,
Alt, Gen, Mr. Recliiij^, did you hear any
discourse between the iweiily' or llitrty that
were in that company about thii» Utsiuess ?
KecHng. 1 cannot say who in particular dis*
coursed of it^ or what was said.
SoL Gen, Wuh it discoursed of in the whole
cdmi»any ?
Keeling. There was some diicourse about it
in thecompany-
L. C. J. Y^o'u, Brome, were you ever ac»
fjuainted with Keeling liefore ?
Bnmie. I hnd the misfortune^ my lord, to be
concerned uith him about some coal- works.
L. C. J, Did you know that Mr. Burldgh
before, that was tlie other hailiff?
Brume. I knew him by sight ; 1 had no g^reat
acquaintance with him/
L. C. J, Pniy where lived Keeling ?
Brome, At ifasl-Smithlield.
L. C, J. And where lived Burleig'h?
Brmne. Truly, mv lord, 1 know not
think at the other eiu) of the town.
X. C J. But prithee, how vnmv you to joiil
these two peojde lOK^cther m ilns bu!iine<i« ;
the one from \Viipping, the other from Weit-
minsler ?
Brortte. Where the shtri^Bi were coucerned*
as they were in this mutter, and tl^^refore it
came to me, I thought it not bu proper to
pitch upon the sheriffs officers, uor wouhl I bey
do it, as he lotd me ; and especially it beingf
to arrest my lord mayor, 1 did not thmk proper'
to employ any one that Ibetl iu the city*
L. C.J. But there were abundunce of peo-
Ele that were not citizens, that w ere nearer at
and, and nearer together, and liit-er for such a
purpose than a tvarfcsruan ft:irlied ont of th«
east, and I know not who out of the west, to
arrest a man : there must be some utlicr mean*
lag in it,
Bromc, 1 £rave them the nomination, as 1
used to do in like cases.
X, C J. Upon your oath. Sir, waa it you or
the attorney that namcti these per-sona ?
Brome. He told uie he could tf«t none of
the sheriflH officers to do it ; and I did n«it
think it indeod proper for any of ihooi.
^
3i3] STATE TRIALS, 36 Charlss IL l6^4^PrU€Urd 9. PttpObUs [SM
liis attorney ; how he dioold oaurj oa lhi»
matter.
Mr. Cornish, My lord. That which I-^articii*
Urly reniember, I shall fully and verv faith*
fully declare. 1 was with Mr. Papillon 'Vjod
Mr. Dubois, at my house. The occasion of
their comings thither, I knew Dot, nor did esped
either of them there; I myself cametroM
Guild- U all, either from a court of aklennen, or
from a committee ; and when I came home, I
founil them there. We had not been many
minuttis together, hut in comes Mr. Gooo-
enough the attorney ; and he api>Ued himseif
particularly to 31 r. Vapillon and 31 r. Dubois
to receive their oi*ders v» hat lie should do ; for
he said the time was almost spent, and he bad
addrci^sed himself from time to time to my k>nl
mayor, and some of tlie aldermen, to get Uieia
to appear, but they would not. They told hira
then, chey had j^iveu him what orders they bad
to give Imn ulready ; that it was tit the mailer
should be brought to some trial or issue, tbftt
there might be an end of it. He pressed them
then earnestly to know what he shoidd dot
Said they. Yon are to desire an appearanot l»
the action, and if he will ^ive it, take it, and n-
member my lord mayor is the chief magiitrtli
of the city ; and pray, cai-vy it wilh all ntftti^
and regard imaginable to him.
Mr. IVilliums. You say, Sir, they M ' '
L. C. J. And why, good Sir ?
£rome. I did tliirik so, truly* my lord.
X. C. J. Why.^ Wiiy ? VVhai reason had
you for it r*
Brome, It was reasonable, as I apprehend,
my lord, for me to think so, it being in a
matter wherein the sherifl's were so much con-
cerned.
Sol. Gen. Bat did you propose it, or any
one else in the company, upon your oath ? and
who was it ?
Brome. The attorney nam^^l them.
Com. Oerj. It seems here were a great many
pci'sons met at Russel's about tliis business. I
desire, my lord, tbat Mr. Brome may name as
many of them, as he can, that were there.
L. C. J. Ay, as near as you can, name the
twenty or thirty persons that were there ; for
you living in the city, and having an acquaint-
nnce among that sfirt of people, must needs
know most of them.
Brome. Why, my lord, there were both the
Goodfuoughs, and Mr. Nelthorp, and who in
particular else, Icanuot well remember.
L. C. J. Yes, yes, I am sure you can tell
more of them.
Brome. My lord, 1 cannot sucar that I re-
member any oUier in particular.
Com. Serj. It seoms he has named some of
those that are in the proclamation; pray, Sir,
do you remember any otbers were there, that
were in the proclamation ?
Brome. I do noi remember any other of
those in the proclamation were there.
At.L Gtn. Can you remember any that were
not in the proclamation ?
Brome. There were several people that I
knew by sight ; but I caunot remember their
names.
L. C. J. Nay, nay, pray open your eyes a
little, and recollect your memory, and tell us
who were tlieix* ; \ know \ on cau <lo it.
Bvome. Mv loiJ, thcieVeiT many citizens
that 1 knew by sigiit ; but had no particular
acquaintance with iLcm.
So!. Gen. Did you know a;iy of the com-
pauy bosidrs thti Goodeikough>, and Keeling
•nd'.Nellhurp ?
Brome. 1 had litile acr|uaiiitauce with him.
»Sc)/. Gtn. How come you to rcmembLr him
60 particularly :'
Brome. I verily believe he was there.
11 con/ir. \\'«s Mr. West tlicre ?
Broine. I cannot positively sny whciher he
was or not.
Mr. Williams. Swear Mr. Cornish then.
[Which was done]
L. C. J. You, IJroino, was Mr. Curnish
there!' — Brome. Not that I kuowof.
Alt. Gen. It is ^trunge we cannot l^rn who
those persons were that met there.
L. C. J. Oh those fellows have »tratige me-
mories for their purposes. Weil, what do you
call him for ?
Mr. Ward. My lord, we call Mr. C^omish to
give an account w-hat he knows of this matter ;
what diructions were giren by the plaintiff to
to take an ap|»iarance, if he could ^et it t
3Ir. Cornish. Yes, and they dedar^l, thil
their design was only to brings it to aD i«Qiil»
be tried, and tliey would not inoatuponaoj
thing but an appearance, if it might be omI.
L. C. J. ^Vonderful careful and ctvil Atf
were, no doubt of it.
Mr. Corni>.'i. Thb h the truth, and the wliolc
of the iruth, that I know of, relatiog to Ifcis
matter.
L. C. J. Mr. Cornish, you speak ef aome of
the aldermen, that he said he had been with:
wliat uMeinien were those ?
Mr. Cor}tioh. There were several cif thwiy
that he saivl he had writs ai^nst.
L. C. J. Yon were an addennanthen; pity
had he any writ gainst you ?
Mr. Corjiish. I know not whether be had M
no.
L. C.J. But he (Ud not require an •ppcU'*
anceofYOU, I suppcjse?
Mr. Cornish If he had, I mnst have takfli
notice of it to defend myself as wtdl at I
could.
L. C. J. Ay, no question but you wobI^i
but wen? you askinl tiir an apneorance, or no?
Mr. Cornish. I was told 1 should be Mcd
among tlie rt^t.
J.. C. J. But was there any writ ahewn to
you?
Mr. Cornish. No, my Lord.
L. C. J. Then pray let me ask you a quel-
tion or two. Did you ever know any mtm
before bring an action, or sue to be sberif
of London? You have been sheriff yvtumHi
we know.
Mr. Comiik. This wm a matter thatM
»J
STATE TSIAIA S6CBAttBS II. l6%*.—/or fal» Amtt.
[S4»
Im BUdi duputed in tbedtjr; tndaqaes-
tMohaii been depcDding upoa it, whether the
^|fat wu to my lord mayor, or in the iherifrs.
L. C. J. But the ouestion of right between
Kkid mayor and soenfla, what was that to
. Papillon ? Did you erer know a man bring
m action, or sue to be sheriff?
Hr. CamuJL Truly, he thai experienoeth
At troufaie ol' it, will, 1 believe, never be de-
■mtofit.
L.C.J. But that iff no answer to my ques-
Mi, answer me directly : did you ever know
■f lach thing before ?
Mr. iZomixh, 1 never did hear of any such
telkaowof.
L C. /. llow then came Mr. Pa{nlion so
Aioiialy to desire it?
. Mr. CemuA. I cannot answer ; what his
■■0B8 were, I know not.
Mr. WilUuim, It waa an action to determine
iifMtioD tbmt was at that time so much li-
%MiBd in the city of I.<onflon.
Mu Gem. Mr. Cornish, pray, will you an-
wm -mm one thing ; were you never in no
snpa^ vkerein it was aj|[reed tiiis suit should
lilnariit and carried on m their names ?
■r. CamtsA. Mr. Attorney- General, 1 never
wHad ar managed it.
JU. Gen. Did you never hear it was so
Hi-GmuA. It is knotvn to tlioosands, as
■tikMlfaiow oi'it ; the matter was disputed
if ail OMpanies in the city.
Ml Gem. But jou do not answer to my
yatia ; were you ever in any company when
•Miamed that so it should be?
Mr. Ctrnith. Sir, I tell you as well as I can,
Atnnaer that was to be disjiiited by that ac-
ting was the general discourse of all societies
if flMa whatever iu the city at that time.
I^C, J. It Is a strange thing, that one can-
Ml girt a direct answer from these |)<H)pie, to
W^ lUag one asks them ; I desire to know
iW thinr nf you, Mr. Cornish : yuu have
hwwn Mr. J'aptUun, the defendant, before this
Mr. Cemish, Yes, my lord, 1 have known
!!■ aaveraJ years.
£. C. J. Was he ever chosen shcrilfof Lon-
iM before?
Mr. Carmish. Yes, my lord, I suppose he was.
L, C. J. How chaxHie he did not hold then ?
Mr. Carnith, I have heaid he fined, ns was
MBmon and usual, when pei-snus* occasions
vaaU not permit them to attend ihe ser\ Ice of
Aa place.
Im C J. He did M>, it is known to thousands,
Myaa say, that he did. Mow, pray, let me
Mk yoo auotlier question : was Mr. Bethel ever
"* i aberiff befure th;*! time you and he were
s together ?
, Conuik, I do not know tliat he was
-J^CJ. How is that?
. Ci0muk My lord, 1 do not understand
~~ If y or else I know nothing
L. C. J. How, did yon never hear of that
before ? For, Mr. Cornish, 1 do not speak of a
thing that nobody knows ; alas, thousands, and
ten thousands of people know that too.
Mr. Cornish, My lord, upon my oath, I de
not know that ever he was.
L, C. J. Did you ever hear it 7
Mr. Contiih. I do not know that ever I did*
X. C. /. Did you never hear that Air. Be<r
Ihel swore himself off, as they call it? Yoor'
know what I mean.
Mr. Cornish, I do not remember any tbioff
of it. ^
L. C. J. Nay, nay, it is to the matter, I as<»
sure you, Mr. Cornish, whatever you think of
it. I ask you then another question, that lief
something nearer your memory : lipon your
oath, when you two were elected upon Mid*
summer- day, was not that election vacated,
and you chosen again within a wed(, or soma
little time after? And was it not because you
had not takon the sacrament, and tlie corpora-
tion-oath?
Mr. Cornish. My lord, 1 do remember tbert
was a second election.
L. C. J. And we remember it too w^
enough.
Mv, Cornish. That war so btdy, that any
citizen of London, or any one that lived her^
may remember the passages of those times.
L. C. J. And you have as much cause tP
remember it as any man, I assure you, for se-
veral reasons that 1 know.
Mr. Cornish. My lord, I think I haye reaaon
to remember it.
L. C. J. Lest you should forget it, I will
enlitrhten you and refresh your memory a lit-
tle : I ask you again, u[K)n your oath, was not
your firsi eJeciion s(-t aside, because you had
not taken tiie oaths and the sacrament?
Mr. Cornish. There w ere two clectioni, my
lord, I say, I do reiDcniber.
L. C. J. Sir, do not prevaricate with me ; I
expert a ]K)sitive ani^wer : Was not that the
rcusoii, upon yuiir oatli ?
Mr. Cornish. 1 cannot say that was the po-
sitive reason.
L. C. J. Then 1 ask you upon your oath,
hud you taken the oalhs and the sacrament, as
the law requires?
Mr. Cornish. My lord, Mr. Bethel was a
stranger to me, I did not know him before tliat
time.
L. C. J. Gentlemen, men must not think to
dance in a net, and blind all the win-ld. As to
mv own self, I know these things very well,
without any of their assistance, and 1 only ask
these things by the by, to let the world l>e sa-
tisfied what sort of men these are, that pretend
to sainti-'hip ; and yet, you sec, one can hardly
^ct one word of truth out of them : let the law,
m God's name, take place, and let every man
prosecute bis legal actions ; but when, under
the umbrage and countnmnce of bw, men shall
desire to put themselves into offices, and places
of trust, on purpose to disturb the goverot*
ment ; do you think the govcmment will ever
347] STATE TRIALS, 36 Charles II. iGSi.-^PrUehard r. Papillim, \3»
suffer itself to be snivelled at, and overthrown
by a oomiMmy of luch wbinine feUows ? Let
tnem bias and bum, and make a noise and
ado as they will; thanks be to God, it is not
that time of day now : such thin^ have passed
too much uncontrooled in the bwly of this city
heretofore. ^Vhat, grentlemen, are yon baf-
fling the law witli such pretences as these,
now-a-days, and do you think to sham people
into offices ? No, I tell you, villany was the
foundation of it, and knavery the superstruc-
ture; and it is high time it snould be told out,
since I hear people begin to doubt of it as a
question.
Mr. Watii. Where is Mr. Serjeant ? Swear
him. [Which was done.]
X. C. J. Do not I know, as sure as I sit in
ibis place, that Bethel did once before swear
himself off? and that there were two elections
of these two very men that year ? and that one
of the reasons was, because tliey had not taken
the oaths and the sacrament according to law?
Nor would they ever have done it, we know
them, neither Bethel, nor that very fellow that
stands there, Cornish, neither, till they found
it wouM contribute to the design of subverting
the government; then these rascals could qua-
lify themselves for an office, only to put the
kingdom into a flame.
Mr. Cornish, When the city chose me, I
had good reason for what I did.
If. C. J. Reason ! I tell you, the city was
in great happiness and quiet, ever since the late
times of rebellion and confusion ; every one
knew his duty to his su|>ei'iors, and (lid it
chcarfully and conscientiously, till such time
as a couple of busy lellows came to get into
the public offices. Let the whole parly go
away with that in their tooth, and chew upon it,
if they will.
Mr. Williams. Mr. Serjeant, will you please
to tell iny lord and the jury, what directions
you heard the defendant, JVIr. Papillon, give
about the plaintitif, how they shuuld treat
him?
Mr. Serjeant. My lordj I was in the count-
ing-house at Mr. Alderman Cornish's house,
when Mr. Papiltou and Mr. Dubois were there ;
I went into the parlour to them, and Good-
enough coming in, they fell into a discourse
about this nctiou, that was brought by them
against sir William Pritcliard, then lord mayor,
and some of the aldermen ; and Goodenough
gave them an account how far he had pro-
ceeded in it ; he said, he could not get any
of them to give an appearance, and the time
was near spent, and he desired to know of them
what he should do. Mr. Papillon and Mr.
Dubois both did declare to him, over and over
again, that it was their mind only to liave the
matter brought to a fair trial ; and they charged
him to look to it, to do nothing but what was
legal, and carry it with all respect imaginable
to my lonl mayor, as the chief magistrate of
the city ; that he should by all means get an
«ppearance from him, if he could, and get the
conmcr, who was an olficer of the city, to go
with him, and cany all things faiiiy tad df>
centl3^
AtL Gen. Who gave these diractjoos, Sr^
do you say ?
Serjeant, Mr. Papillon and Mr. I>iibQit»
both of them did.
Mr. Ward, Now, my lord, wc shall shew
that we proceeded so far in the action as to de-
clare ; but afterwards apprehonding ourselvcf
to be under a mistake, we discontinued our
action.
Mr. Williams. And the costs upon the dii«
continuance were received by my lord mayors
attorney. Here is the declaratiou as it wae
filed.
X. C. X Ay,itmaybetherewasadedai*-
tion filed, but not regularly.
Mr; Williams, My lord mayor after ap-
peared.
L. C. J. How doth that appear in eri-
dence? For the coroner says he himadf wae
in custody, and knows no more of the
afterwards.
Mr. Williams. 1 believe yonr lordship i
remember there were many motions ^
court about this matter, on the one i
the other, and at leng^th in court it was i
mised, and my lord mayor promised to gifeiB
appearance.
L. C, J. Prove what you can ; prore the
appearance entered, and declaration reoeired.
Mr. Williams. My lord, I only ofler this ■»
an evidence of an appearance.
L.C. J. A record, I know, is a good and
fair evidence, shew that if you can.
Mr. WariL It is not usual to declare tSltfit
defeudant appears.
L. C. J. A declaration may well be npoo
an appearance ; but because it cannot be good
without an appearance, therefore it cannot hn
a sufficient evidence of it.
Mr. Ward. We will prove the costs of the
discontinuance paid and accepted. Swear Blr»
Baker. [Which was done.] What do yoa
know. Sir, of any costs that were taxed and
paid ibr a discontinuance in this case P
Baker. My lord, Mr. Aston told roe, he
appeared for sir William Pritchard, then lord
mayor, and had a declaration trom the noir
defendant's attorney : so 1 entered up a diaooa*
tinuance, and naia the costs, and have Mr.
Aston 's receipt for them.
L. C. J. He says well. Go on then.
Mr. WiUiums. Aly lord, it is a thing that
hath frequently happened, that after a man has
brought an action against another, he finds he
was mistaken, and hath no cause of action, and
thereupon reUiK^uisheth his suit : but sure that
will not make him hableto a suit.
L. C. J. Well, pray go on with your evi-
dence.
Mr. Ward. My lord, wc are not now ofleruif
to try the right of election, though th^ naUy
was the foundation of the action that wehroogfatt
but we apprehended that queation to be delsr-
mined, and we acquiesced in it, when that trial ■
was over. Now, my lord, we shall dwifi IM
STATE TRIALS. 56CHABLt»lL iCU.—f^r faUe Arr€$t
J ooreHtrc rritUy chosen » we diil
liveiifi to ibf t mlfJernien; arid
i^mn n m retitni mude. 1 pnty lU^se may. be
Tlia Ksafl&mus fttiil lleium ncre read.
Mr. WiUUm. Then that which we shall
f is lb« grouiids fttid reasons why we
return wa« ftit'^*-, :mrl thereupon
ictKKi. \\^ v^ |l(at at a
bttUtbeid f<>r til- of sheriffs,
fc MSMi^fil Wi« in riommattiiti, and had a
ma i>unib«-r nf hands and voices for liim.
P«T, ca!' ' iftert NeUon» Mr, William
WiylilMsi' l^mnrd Hatiinson. [Who
Mr* Warii. n* pray wereyoQ &1
^C«mot«i Hall v>ir tricction of sheriffs, in
Arfam, I wss at the Comfnoa Hall in June,
Mtif *m Bli^suiumer-day .
Mr< Witlimmi. Pray, Sir, will you tell us who
mn thai m Dommatiot], and how they did
Xrhfm. Ttiere were m tiomiDation for
iMfii, he that It now sir Diidley North, then
llr Biacil^ Mr, Box, Mr. PaptUoti, and Mr.
lie. Wmd. Ptay, 8hr, who had the majority
1 dill tee the |x>ll books after they
Iff. IfiUMjm, Bat did you observe the hohl-
twithm hxnd%?
■Mil t» '
MinsT op of the hands,
sheriffs given to Mr.
^ S^r, upon 3'0tirvie\r,
^ vere there many hands
iV ^*^4 tliere were the tno«t hands
Ivkivaad Mr Ouliois.
Mr. Wi^^, What «nr yt^u then to the sum-
of the poll* books, that yoti s^ioke
Mr. Ward.
I «lid see the books afl&r they were
Was there a^reat number for
Xdum* Yca^ there was the ^^rratest.
G^ Strj, H hat books do vott mean, Mr.
NtiMm. Tbe hooka in the f(heriff*fl cuatxkdy,
^- Bat did y<»u h^-*
Thai was in»oii ihr
Mr. ITor^. Then which
■ttf
Kf ITard
is Mr. ' Wight-
ent at thtj corn-
eal?
J the dec-
Mr mmmm.
Wtfo y«a at the Gonxuan*
day, 168'^ ?
I uuiiol lay that| Sir.
[850
Mr. Wttrd. Then what is it you can say la
this matter b question ? Did you lake any
[Hill ?
Wight tnun. I did take the pott in one of the
books*
Mr. Witliamt, Was there any number for
Mr. Pa|iiHon?
?*''■' ^- Tliere were 2100 and odd for
P;i Dubois.
sfm . WTio were i n nomination > sir T
VV ' ' <• perRons polled for ?
1 . Sir Dudley North, Mr. PapiUon,
Mr. Ooliuis, and Mr. Box.
Mr. Ward. What say you, Mr. Robinson ?
Were you at this common-hall, in l©d9 ?
liabtiison. Yes, I was.
Mr. H't7^»i5. Who were named to be shenffs
then?
Robinson. Mr. North, now sir Dudley North,
Mr Riilph Box, Mr. Thomas Papillou, and Mr.
John Dubois, ihey four.
IVlr. WUhamL What number had Mr. Pa-
pi I Ion for him ?
Hobinwn^ I never saw the poll.
Mr. Ward. But upon the view in the hall,
in vour opinion, did you look upon it as a doubl«
fuf case which was elected ?
Uobins&n. By the hands, I judged the ma*
jority was murh. more for Bin Pap il Ion ami
Mr, Dubois^ than for the other two.
Mr- WUiitvns^ So you think in your jadg-
meni ?
Rifbinion, Upon my oath, that wai my opi-
nion.
Mr. Willionti. Well, my lord, We mmt rest
it here, unless they give us further occasion.
Aft. Gvn. You say the majority was for
Papillon, and Dubois : pray was the election
declared at that time by the mayor and alder-
men, or WAS there a \^o\\ demanded ?
Ralfinson. Mr. Aitomey, iirst the question
was put for the persons, then tlie slieritfs de-
clared their opinion, and a poll was demanded,
and a poll was ^antetl, and the sheriffs went
with tbe common wrgtianl up to tl»e court of
aldermen, and acquainted them with it ; and
thru they otl eurne down agttin^ aod declared
that there should be a ptdL
Soi, Gvn. Who were the aheiiffs then, pray
Sir?
RoUnion, Mr. Alderman Pilkinfrton, and
Mr. Humuel Hbute ; and in tlie evening, after
the i>oll mi-*li^^^'*i lit.* books were o umbered
up, th* nvn upon the liu^ting*,
anri d rs ; and then, as I re-
-, the uumhei-s declared for Mr. PapiU
Dubois was above 2iXK), and the nuro-
hi,; ti«-c)ared fur the other two, was some hun*
drcds under 20U0,
Mr. Wurd, My lord, we leave it here-,
L. CX Will you, thai are for the plaintiff;
say any thing more to it ?
An. Gev. Yes ^ my lord, we hare mora evi-
dence to bring: io answer to what they ba?#
brought here. My lord, that vthichthey would
excuse themselves by, is, that there was a pro*
batde cause > but that will fkil them, if it ba
551] STATE TRIALS, 36 Chaklis IL l6S4.— PnteAtfrrf r. Papiiim,
l%vt obscn^ed tth&t t!olh appear upon their ofiro
tuimee. It is true, wljcic a man hatli a pro-
i riifht^ he raaj sue* Hut this maitir (lere
Dlend^d for, waa oerer !Ucb a right as a man
ay iue fan No man can t ver thew, that
* tbe vhrievalty^ an office of burden » an of.
e of (razajd, and an office of charge and cx-
Doe, cnv ui&n did erer sne, so little grounil
rremoti'bad tliejr to bring this action tor tbi&
And then ibr their titk to the office,
0iat win appear but very weak. They pre-
Ittaad tJiat my lord mayor and atdernien could
Mot tr\ ilie'riy^ht who wat elected tjtily and
Iti^htftiily, and tliey bring (hh action to try it,
Liud then tliey produce ^ome of the racu that
rilcld up their liandiij, and in their opinion!, ^cn-
||)ecnt'n« they fay, the eUciion lell upon Papil-
llon and Dubois. Hut, ^rentlcmen, that my lord
r^ill U^U ynu is nothing at ail of title, but a poll
yw demanded, and by that it must lie decrdrd.
Then one of their wittiesscs tells yon a story of
r bat the abcrifl'a did upon' the' ^Ih hut u\\
"bat is nothing too. For we tell you, and shall
prove it* that thoee ^hcrifts did," in a riotouis
t||ciantter, assume and take upon I h empires the
supreme gfovei nmtnt of the City, and woiiM
hntc excluded my lord may ^r from it* But all
their procecdin^^ and dit that they call ti
poll, \f(^H voi(K itm! can make no title to any
tliuig at all. It was a ban* dispute of a fuctioim
party, to snbveit the orderly governnii iJ r.f
ihe city. I'litne was no probability of title
or n^itt could l>e g:aia©d by it For the chief
laaipsti'ate ot tl»e city, for the timeU'ii:^. * w r
did direct the poll, 'and all the pi
upon fdectiwu of olliccrs* And \ ,i
iHd so iu ibis ca»e, we nhall proieto ytm iij^re
was not any considerable number (tJta; i^^ not
Iwent^ men) to ^i»e any prctetice of title to
thisgcullenian, that thus «ued for this (diicc.
Hut uidecd iu that UiOat riotous assembly one
ol' them that ever was, they do pi'etend to lie
e)e<;ted ; but we :>hull hhas^ that for that riotous
aascmhly they were com itcttnl here as rioters
upon an infoimntiou, and fined to the klnig; for
it. And I couhl tell them of a like case of an
illegal title; a man ji^oelh by a fiilse oath to
g^ a poi*?<>>siou of g-oods^ takes out a capias,
aitd with uti*crx, ^etluj'^ ijitoa house to ini-est
the party I he th«/ii eurric^ a\^ay all the gX)od^
waA U|ion tlm pu'c ^ t^ would set up a pre-
t^fte of title, ' ^rmntion ft»r a
riot, he was sevii tit, Xn Pa»
|)lllon, if he hntj ibr 4 h^^ a ufood
title, or cau^ to hii i», he w^ul,i
liaieemployed I s tu Ij or ..i
redded in it, '• t[ ^ u
Hhuisttbut 31i. vi.n-f.vi .1 . , > inn
not live within the city, u ^ I ' ; . i' UL^to
do in itj till brought into ofLr ,Xr tut, ^4,^aun-
Ctrument of Mr. Bethel in hi« acticms, and a
gT»";jt plotter in ttic Liir horrid and drradlul
con^piriicy. An ^c, how h it ma-
naged ? Nat by i -rl of wortliy man of
ttie robpg or ijTuve citizetim, but by a cabal of
thiny or tiirty riottfr?3, tno^ of them in the
pr^afuatioQ proicnbed aatratlorf, ao^ run
4
takal
Mi
did
away from Justice upon the di»*
plot. All this ^peaks m:'— " 1 tbe'i
malice, ihe lliin^^ itself <» pn
title with «o little or ti . J. Fn
plainly obfiene, there is no tiilc, but 1
ous assembly to ground their pretence
In the proKCCUtien of this action there i
order, wh8t«#oeve"r they pretend, for to ti
apj*earance, I immn by tha»c that renlly «
at the bottom of the desti^n. For the Usi
men at theconsnU at RussLra did not tue^jj
be sure^ to g^ive ortlcr for an appeiuance,
they had other work to do. An ap|
would h*»i do Uieir work : for, as Mr,
at larifc could explain it, they took i
tnnitic^ to lise :ind make a mutiny^
advantnq:e of tli. iti^iImU. ^rKl diM»f<
brin^ about ^ plot, They
care tive-penr ippeaaancc : but ml
the holdici^ were up, then the plot w as smAX^
ed, and tbrn my lord may gio homc^ if bt
will, (jcniltmen, washairprove what 1 havt
opened to you ^ though 1 am persuaded not \
of you but' know it as well aa; 1.
Sif^ Gen. Shew the records of Ihe <
tioD ot the Hot,
L. C, J, Uotd, Mr. 8oUciton I t«Q yool
fore ham), that as I stopped tl- r
I lie trial for the riot as any
the ri^dit ot election, or as any «i ,i >^ 1 1
the question now before us ; so I i^u
you T>, Hit. r * filer into tlmt tnntter.
uf liftment^ convict ion j and ftcnti
I 1 rs, makes nothintf, either tot
ieclion, or this rif^ht of action.
, as I aaid to Mr. Ward, it wm
L.. ;(>;.( lo the purpose to mention it on thai i
^ • it IS to no purpose, I mrrst toll you, lai
!»oo it on the other sifk?. V<fT it was H
\ mination of the point of rirrht one way <
And he could not g-ivc it in evidence, i
was a litigation ot the tiJ;\U--r in dispute, and
upon the dti'i?^iou vif ' t r , i ' I whil "
heapprehi'nded h«: 1 ' tt i
a^ust hini^ and so m -«»'.«>. i^u, uici
say» WHS I Kit ut all atfcciel by that 1
Wily or other. For admitiiup*they hadi
or yon had a rigfht, yet the gaining'
tijfht must not be attt?uipted in a w
tnanner, but they had a lawful way \
by their right, and if they pui^stied thi
and g'ood ; if not, theu they timst take
comes of it.
At t. Gen. My loid^ that rigfht was insii
on by (hem as the pi^bible ground of tbcif
action ; and that, we iny^ wa$ no ngiit«
L. C J. Theiefore it is to 140 purpose
nrjrc it.
Soi Gen. But, mv lord, with subo
our answf^r '^ •' - - utlc la, that there i
\ oohmt 0I r Ttd I his con> iction provoil
L. C- . M ..:. Sidicitor, that is
eridrnce one way or other.
Sot. Ocn, If your lord <h in please,
Htf ny s tlittr v«ry title, which id tb« ttumli
the poll,
£. C. /* LQtd ! thf thing ic as [ikln^ |
tha
, «titll0r a!*aLiiJst nr tor the
I Seftcmtlne it for jfua, ur agam^t
M ITtji, My kml, wt^ ■ubmit ia your Jorcl
d^fV dtrectjims in it. Bitt thc'n ibi*( tv<^ ^y
tiotr !5i rwfurrjj U
tor fho
. They
' nt had
*>r llie
>ne hy this
* M deter*
clear the njrht ot €lecli<»tt
anil Up tdiild hure iia
' went a I it tie luntref» and
' sheriifj pol) l>oak9^ or
fc»iMbeT« talr««n r»iit (>f th^m, %rht?neiii ihey
sxy iLfht our Atiicm,
1 ei^jt^ 1 ' .<, Midi
my Un t ihttt
I be wsfttiner oi « au.^r ^m »LiK7n in the
1 iiniiML, say we, ihiit wrw no port 4if
ttr itaiiB at ikJlf ticn- ^^Jiv it »t n!' ''^ '^'^^"«rn
1km ^MMin wC rt^bt mie w&y nur ni q
q^tv lir »iieHlPfipfiii i
M^ Tlirfi tEey wcfi
4nd ts r* iUenci? the s
^«Ai he % emims vrurium.
lltL-^e are a.H the
1'l>*' fivNt by tht*ir
; for thnx*
t njxm the
illl
\rt
jury an oc
We*
MAltet «*ft» thr fi
••t II mm» Mw<94fi
M fwl t»f in &iiy tjtn4 V
^•^ 1 UMok. fhi^cri-
«if Ui^fff, III
m «ll tfniQi; ttfi^A I
^bfaift for dlimlil t ft M 'Mdy 1 1
^Hi»«i» tfjcctevl W the mn^or
f nyter knew a j»olJ"
«iX yr»r< »iqt» ;
rit rvcr ! kriftir,
■ '*t
I
.W the
a our
tzTsee
LiiiMfrr Aihi»t
* inutmlty «liuU chocHHS aooihtx to jom
* him, fof wlioo) tllty will [umwiji* And if
* ihcrt; ari^e any dilfcrGtiCc t»ctAveeu iheni^ wli#
* li elt3€U?d, m'not eleoted, it nha^ he deter •
^ itittied in Uie satnemaoner fu it in so com-
* ini»n counciL^ This is all the notice, that 1
ftnd in any of the city books, that Jookji hke a
deciding the eleclioi), when disfiutedi by a polL
Now in anothn* chapter of that book^ where
the common -council is Qkentioncd. it is ml^^
' U there he any divisioci of opacuons ta th«
* common council, the coratnon-serjconl and
* the town clerk sWl examine every man sti-
* V ©rally, what Uieir opinion is, uUich is by
ii\%^ or I *' way vf poll at this day tvhen we had tv com*
V w«'iit I * tnoii-coimciK* But till that time that tlie
poll woi between Air. Jenkii and s^ir Simou
Lewis, I oerer knew any poll for sberit!>j, and
that poll was taken immeaiatdy by telling oiie
and the other* For my lord mayt}r mid alder*
meiif at sofm as ever they cotne upon the
boBtingy, make prockwation to have the lire*
rtes acteiid for snch elections^ and Ujen witlt-
draWf and leave the i»herifl'j3 and the commoB
aerjeiint,
Jtt. Om* Sir, the course is rery well
kiiovvn, I »uppo8c, to the gentlemen of tba
jury. But prny, did any persons poll at m^
lord mayor's books for DuImhs und Ptiipillou i'
Toufi'CUrk, Not that I know. Astothti
poll, my IwJ nmjor cau^ the common*
to be adjouraed to !tiich a timci and afti.'r \
Sfnt for the commou-^itsrjfant, and niyat'lf,
required us to go get books, to take tlifi poll
for Mr. Box, Sir. Papillou, and Mr; DuUiia;
as for sir Dudley North, he waa Dot to be polM
for, he heinq chosen before, by the prerogiitiTA
of ihc lord ru8yi>r, nnd my lord mayor and
aldermen declared him ftdly ckctad ; and ti|»oit
that he was calleil out by public proclatiiaii|^
upon the hustings, to eonie and take tbed^^H
upon him, as is ti*^^ ' ' '•■ ■•• '• '^n'«e9^ But^^^
had directions to i
lor >fr Box, Wi. . ..
did so, and iovl
iiicn^ and upon <
all of us sealed up our liooki
th«*m to my lord mayor, and at a common*
hull allerwaVds lie did declare >Ir. Box to be
clujsen the t»iher BherilV, U> lie joined with
ifir J>iid!t*y North: the poll was, as it al^raj-s
oii«rht to Im?, hy the dirtx-'liim of my lord niayor,
ui.; ' It otficers/and not the
jr f Lli6 jwll, without my
UC'J. What say you to tt^ geniltfineiiF
Have V'^*^* '*•" -MMiL* evidence i^
Sifrj i\ly Lciid ftad Gentlemen j
III i« h :nudi Miid iu this cause that ii
J totho nurpo!«c. An particularly, tbit
the fdaintttl 'h cimuiid did last inskt
upon, who took tlie poU, and wlio had right \»
'2 A
' lAkelhe poll
iMr. Duboit;
'T these three
the Doll, we
and oelivered
S95] STATE TRIALS. S6 Charles II. 1 6S4,—Pritckgrd v. PgpUlim, [S56
take the poll or not, ii not auy thing to this
Siestion : this action is not- at all concerned in
at matter. For whatsoever the dispute was,
and whichsoever had the right, and because it
was a dispute, some it may be, could not poll
at the one, and othefs would not poll at tiie
other, yet the liflingup of two thousand bands
might make him think that he was cboseu
aheriflf; and there lies the cause of his action,
his apprehension of a right : your lordship did
object this to as, Whoever bdore brought such
an action as ours, and did sue to be sberiflT of
London, a place of charge and trouble ?
L. C. J. No, I did not make it as any ob-
jection. I asked your witness, Coniish, that
qnestion indeed, tor some reasons that 1
know.
8crj. Muynard, Tliat may be objected in-
deed to 4he pru(k»nce of my client, Air. Pa-
pillon, to desire such an office: but that
proves nothing of malice in him against the
plaintiflT, for if he were nei^er so unwise as
to desire it, it' he had a ri^ht to it, or thought
he bad, it is not a msdicious thing in the
aye of the law, for him to take his legal
eourse for it. And then the objection that is
made of the instruments that wore used : our
attorney Goodctiongh is in a plot: what is that
to us ? There is not the least soituicion u|)on
vs. He is a bad man : but that duth not make
all his clients bad. liut the question now be-
fore you is, first, Whether there ncre anv
probability of a cawu; of action? SSeoondly, ii
there were not a pn)bable cause ; yet whether
that action was ^-oundeil upon malirc? What
malice, I pray, is there in this aguinstmj^ ion!
mayor, to desire an appcanince of him, when
it is conci'ivcfl, thougii upon mistake, that
there is cause ot'actiun ai^aiiist him ? We did
Hot pa'ss him to give us bail to uur action, or
tiirealen else to arrest him : no, it was a de-
cent rather than an imrterciit application tu
him. If, then, there he not l>oth ccincurring,
want of title, or probable cause, and uialiix;
too, this action uf the iilaintitrs is without
f round. No man, that has any sciiic, if ho
nows he has a clear title againsl him, will
bring an action ; but tlious^h it should be clear
against him, yet if he do bring an actiuu, but
not vexatiously and umliciousl\, that cannot
•object him to an a'.'tion • that uould frifrhtcn
men from bniigiu<<f actions upon doubtful mat-
ters, which ceriamly is lawful i'ov any man
to do. Now, what malice is proveii in the de-
fendant against Uie plaiiuin*, tlie jniy hoie are
judges of. Jf we were criminal i\i tfie manner
of our pn>ceedingK, they might roinv bel'ore
your lordship in auother'uuy ; biil sun; this is
not the way ; and if it slioufd he a«.-iiuu-il, and
we likewise subjet-t to be punished a:* :i eri-
luinal, then we sliuuhl Hutler txticc !'• / (he
•ainc tault. Now, gent h men, upon this .11 tion
we are nut to be OuhI ; but they, it'tln^y can,
•re to shew what damages the |iluiut>(r»uh-
laincd by our action ; and if what we hmo said
do not satisfy you, that we liad probablo vimlsou
fa wiiHt w« ilid» thcu you, upou your oaths,
are to give him what damages you, in yoor
consciences, think he has reoeived by it.
Mr. W'iltiuiHS. My lord, if your lordship
please, I would ask one question of Mr. Town-
clerk, as to the right of managing tlie elec-
tion. Sir, you have observed many common-
halls for elections ?
TowncUrk, Yes, Sir, I have for these twelve
years.
Mr. WUliams. Did the common-haU ever
go to a poll upou an election, before this tima
that you know of?
Townclcrk. Never but opce for the electMos
of sheriffs, I say.
Mr. William, I speak, Sir, ofanyaortof
poll ; for I suppose you do not call the holdiiig
up of hands a poll.
Tawncltrk. ,Mr. Jenks*s poll was the first
that ever I knew for sheriib.
Mr. IVilliamt. Well, Sir, was that managed
by the sheriffs, or by my loni mayor, or by yon,
and the common Serjeant ; or wlio was it by?
Townclerk, Sir, the mayor and akkmcB
withdraw, and leave tlie sheriffs to view tfat
election by the hands ; and the corannoa sor-
jeant propounds the question, " So many of
you as will have," dec. — —
Mr. WiUiumt, By whose direction dolh ht
proL»ound the question, pray?
iowncUrk, Jly the direction of the conunn
hall, I take it.
Mr. Williiimt. But if a question doariit
upon an election, so that it cannot be decideii
by the view, but they go to a poU, wiio is to
manage that poll ?
TuwncUrk, The officers of the eilyy by
direction of the lord m:iyor.
Mr. Williams, That |>oll you speak of, for
Lewis and Jeiiks, was that managed by any
body but by the sheriffs ?
'IowncUrk, It was managed by the sberiffii
anti the common serjcaut, in the aflCttstooinl
maimer.
.Wr. Williams. How! in the accnsUmtd
manner, when you say that was the first tint
ever you kneiv r
ToiLiivltrk, It was so lor sheriffs ; but Xhtn
have been pulls lor other officers.
L. C. J. \\ hy, Mr. Williams, every body
knows that well enough, that the sherilb ase
coijcerne^l in the management of theelediaBt
or the poll, us ail the rest ol* the officers of the
city r.rc, under \ny lord ma^'or; and the 009*
nioM Kcrieaut consults wiih the slieriffs i ~
and |>eopie about him, u|Km the view
Mr. Wittiu/iifi, Tray, Sir, do vou reme
the ele^-iiou ol\\Ir. Kctiiel and 3fr. Cornisbr
Tuit }u it:rL. Ves, Sir, there was ft poQ
too ; thill was the ycjir at'ter.
I^Ir. Wil!!-iui>. VV ho managed that poll?
T'r.ciicUf!:. The sheriffs, and the co
serjeunt, and I, did agree U\ take it t
two books, \t hereof one was with tlie<
riff, and the other with the other sheriff, at I
two ends of the hall.
31r. Williutm. That tras taken in .
Sir, was it noli*
ill STATE TRIALS, 36 CllAaLSs II. 1684.— /«r/a/«r.4irMf.
[3flt
2A«tfii«t it one day*
tio orderetl ^ou ta take tlic
Tbmmkriu Yis, §ir, thai ^er of J e«i k9 w&k
Mr. I4'il||g0ittu WcnrTOttcoticeniediiitmking
lint fH.il
r
li
fill tiui iti y ^
Ti»ii^/i«^. TrwJjr, I d'ul eoncem mvself as
iskM I cqqIU iQ ttiose Itun^f^ : ntint re|»>it
«i»iiiai|« t^ thr rtnirt nftU*^enn€n, I cannot
It* I ui ii ; liul »i»mt ^n-
I dlul |ira V ID£ to ^o tip to tlie poJl ; aud I
I lrtiy«iir.-^( "- in 3/1 Kir oath » did the
' ■ It >
cXrrfc. i ira.i. Liiiuk ther did tioL
► H^iiiiiu. Did my lord mayor direct you ?
I tf^HiamA, Did tlie sheriAV mnun^re it ?
I 5k r? t (!id It by »ir Itobcrt Claytofl^s
liird iiiJiyar.
^iy ior*l, all tliai me say to
>#c 6ii*r not unw jHuvintj our rififhl
itti<:K '^r l*rtitftrht uur nctioD ; tliat we
I uti' r iiH, wf tiHisUi^n^e
hmkm my or otbfr; yei ^v<^
^ir frsm y bavc a )> iihable
Ml «f actio T ^ be a iloidiUul
Hii iH;»i Kr. I «Mv i.-'- ' !. ^., ,, ;.
Il»«t liifbt; for iiU I
is troin Liber Ail»M., .xi.w .^.u. i»
f dark. You, ypeutUniien , hear ^vliut
was nghi, uud so not
with i«liat my lord
I •te tlM
rM*
. C /-• Mr* Willtanitf, yon talk of that you
h aa «iiler«4?ind ; Tor niy lord ninnyur was
■tdvfv «i th;)t tinu> of J« ikk^'a poll :* [ wan
Alsi^rr Qc^liiu^ t'
> aa&u.v. .
t kuour the abe>
Mr, Tiiwn-
oni', and
.^Img oftiif
L C. J. Out you am out «lill. Bui for all
,ikia la mitJtitig lo yi»iir right of action, ntit'
I H^lwr* i, 1 must Iny it here,
irf^tftttt ;)nd ^tr brouwrhi our
but aftc>nv;trd9i ctiu^
. tiad oa right, wc dis-
iiui di'»u^t4'd.
It waaao far from Win^ thivr riKVit^
I «h'sa« you to " i«e witness,
lay, hrlW' thcrcs «vas
ug lUouitht
tp«ilor aluYitj'^
HKn u uni
' '>». W« were und^r an upprehen-
ntlwtD,
tvi'ould he: nn colour for atiy
■il.
: ^kvibmtt to your
n'^ii^mumm.
Ati, Gen, 80 do we,
Seij. Muynurd. Wbfiber thifl action tirtmgbt
by us, unBi malicious ?
* Mr. WurU. My lord, Mr. Attorney doth
cliallcn^^e the dctenitant to shew th»t his action
(van brou|j^ht by ad% icr of counsd ; ire shall
nhew it was with fro'»d nulhority of counseL
Mr. Baker, can you tdl wbelliek' it waaby any
aftvice, uud whos^e? «
Mr. Baker. It was by the adtioe of Mr.
Thuiupsoti* I^Ir. Foileztbu, aiid BIr. WaUop* ui
I have beard,
Atl, Gen. Hut you bear what Ke<Un^ -^aya,
there was a paaty,* that were vd a consult about
it« and that were concerned in it.
Sol Oen. My lurd» we hu>c done on both
sides, 1 thiuk, and submit to your lordship'i
direction in it.
L. C. i. Will 8oy of you s»y any thiu^
more ?
3tr. WUliamM, No« mv lord, we hare done,
we learc it upon thia evidence to your lordahip
aod the jury.
Aa. Gen. My lord, we have no more, to say
tor the plaintiff.
L.C, J. Then, gentlemen of the jury* af
my brother Maynard said in tlie beginuiuii: of
his deteoce in this cause ; so I i»ay now to you,
to $et all things ^traiglit and right ; God for-
bid, ilmt any be^t^ ftr tranapori of the timea,
should briu:/ us into that condition, but that
evtry subject of the kinj^^s. that hath a rufht
cd brill i^uji; an action at law ai^ainst another,
hh'iitld taive free liberty m to do. And Uie
c<»urts of justice are now, and 1 hope, alwavi
will be so open, that every one that would taks
a remedy prescribed by the law Ibr a wron^
done lum, may be received to brmg lu!> actioOt
n hicli ill a le|i(al remedy.
And i am to tell you, gentlemen, iiiat nHich
bus been said in i\\\^ case (which I |>erceive is
by the #it)ncouni»eof puople acausr oi'gi*eal cx*
pcctaii'in, as mv brother likc\vnye said^) which
la not ut all to the ca$e. i am sorry truly at
this time of tlay, that we should staafl iji
need ot kucIi c&U!m^ a^ these, to Si^ttle and keep
people in their due bouods and limits. But
though mauy things bavu been i^aid tu the
case, that are quite Ijesidea the natural Liueg-
tiou, yet they havinjf been made *' icg
upon that question, and because w be
a case fif such e^rpectutioni I tbiuk it will be<
come tup, iu the place wherein 1 am, to any
something to you, and, according to the beat
of luy uuderitaudiag, tell you what 1 appro-
In^id 10 \i*i tht' Irgal part of it, stripped of what
huUi no I'Llgtiuu at aU to it. And if J shall
ofuit any thing that ia material on the onv si4e
or the other, here are gentlemeu that a^re
lea' 'le law, who are ot coimst'l hoth for
til' lid the detendant ; and 1 ^^ball uot
thii.» .» T -'< \i under any tort of prejudice lu lUe
world, if they take I he liberty, aa they may
fntely ilo. tonihrnui me, and remind m« of
what 1 1 lu 1 may tuistakc.
For, t " iHjiutii you* for my cTwji
part, I would out htivv th« iaw ouuk tohmviest
state: trials, 56 CuAtttEs if. l6i^.^PriUkati u P^piHon,
Ifa aivy purpose InU tlit^ exact rule of jtuticr. I
'foulil, to the best of my iii»«!«rsi:\>ulins;, in all
Pfa.ses scrvartjm tUtXium, \ w? law and
i>e rirht nf evei y man i 1 wnM
have tuc Iaw of the kud to be the meosurr nf
ny ow-a ntid nil other men's actions. And I
L|i*^pe no man c^ti justly (i am sitrc Ida n»t
I'^nu^v tUcy cnu) €f»mi^lain of any hrenthur iu*
Wmsioii ihut is made in the coiirts of jn.t!rc,
I either upon laiv or ng^ht. Bui all tlM'K<> thni
lliavethe^i! I uiti of justice commitU'il to
I lliifm liy til K^nl, do behave them Krhes
Lirith all ih|iiii\ mi niipartiafity tuwurds nW the
[ fcug:'s sulijLHn^ ; and the Ihw hjts ns loll ami
liree a coiirhe, and juntii'^ dotli evtry whtre
l^ke plac« n% mur.h ai can be d«^ reel by any
ponesl and t^iwi nr^n.
Genilemert^ in this rase, ihul you now are to
fy^ 1 must first of all tell yau, that this busi-
Hesa of the rig^ht of election, one way and tlie
tther^ batb b<*en too much itiifisted on on both
ideK, And I i»peak it, because thoug^h I niy-
Nli^lf in my oun mind know what of it is true,
tid whatnot ; Y«t J ctom.'cive it not ao proper
I be tt lent ion ed in this case, it beiDff no lejH^
^^ ' : ' Ti) tbe point imjuestion. !?oiv ttis a
d iibenl opon votttn ctbaerve, and upon
^41^ < rill • to KtsfTer notning to be nr»^ so aa to
|ia»eat>y vyeiyrht wiib you, but what is le^ai
^ideuce. T)tat you ai*e only to mind, i^ntlc*
Den. Ho thixi if 1 mention to you any (KHut of
ct, that bath not been given in evidemr, as
(laving' a true relation lo Ihia isiue, you are not
■^D wind what 1 si^y to yuu about it. On the
ther aide, I must hkcwise acquaint von, if
Wrr be any dithcidty iu fM>int of Uw in the
you are to obacrve toe direutiona of tbe
ourt, who will be always ready to assist and
(lirect you in it. Or the gentlemen, tiiat are of
ounttel on tlie one side, or the other, may
have tbe matter tbimd snecially, if they think
"here is fact enong^h to be found to ground a
|uestion upon.
Therefore, g^entlemon J for tbe custouis of the
Dityof London, as totbe mannerof eiectious,
' who bath the rt^bt to roanafe them, they
^e not at all material to this buainess ; and jf
bey were, there i» never a one of you, but
now it as welt nn we, or auy boily doth. I
nys<lf bad the bauour to serve Uic city of
uadnn in the places of common- Serjeant and
onkr several yean: so long ago, that not
Dve one or two, that sit tipou the bench iu
be court of 111 den nen, have been longer con-
versant in Ouild-batl, or know the customs of
" ondon in those matters l)tMler ttum I do.
It is notoriously known to aJI that [m\c had
ny dealing in London, or bein . i ^ "•■ ) with
Iny thing there, that till wit In v or
even years- last past, the l^^nl u; -} ..^1 the
ourl of aliAerxneii, and the common -hall use^l
► go a birdiag fiir «heriffii (you very \^^\\ know
inrhat the nbraae mean^,) and ix^rliap^ it wua
not onc« m ten times, that tlioxe that w^^rc
chosen sbtTiffs, held ; but generally every year,
there w^ff* I know not iiow many eleciions
on finmgoflr, or swoaring , or aotne rcasno or
other ; ao that now and tbcQ iluere waa hit i
sberifT chosen fur a great while iafireil»«r;
nuiv and then never a one from Midzuiu
day till near IVIichaelm&s. And the way
to consider, such a one halii moat muneyl
bis pocket ; Oh, tbeo put blm up f^v ali
and I hen if be went ofl, then a»otoeri
found out. And there was o&e old i
vage, that used to keep n black book, thai i
fqrnitth namfs for I know not how many eli
tions. And who libould be sheriff, so |ks to (
vide into parties, and poll, was never a t^
tion before sucli time as Mr. Jeuks, that't
speak oi; came to be put u\\ und thera
dispute began ; then tbe faction btgao to
pear*
Now« if any man offers to tell ine, I ap,
bended alwayV it was thesberitT^ right to i
nage the |H>ir ; 1 woubl ask faim how thai i
he a riglit that navtt was done bei'orie f
them shew me any one instance of a polli
sberifl* beJbre that lime, No, it waa
ously known when the polls began ,jpat!acini.i
not think the shrievalty auch an oifnoa, jU
wa^ so earnestly to be coveted addl
Poll^ indeed, tised to be berelolbre
bridgemaslere places^ that afe plaets of i
and advantage ; and so for aMOOncn^ and I
like, those Tiave been ofloQ tn yiNlf T
mine, gentlemen, we may i«ry welln
them. But thi<i ofBee of aherifl, peonke isi
not heretofore so ambttiouMi of, as to poll ft* (
but the city was glad if they could get
worthy and tit fkerson to accept of tt«
And tor the management ol the elediaii, !
all can tell the manner of it, us well
thi:ig in the world. A tier my lord toaf
tbecuuri of aldermen were gone off I
ings, and retired to this place, ilio c.
«erjeant staying there with the aherifl ^
to make as}^echto ttie com mon- ball,"
hearsal of what had been before said hy
recorder ; and llien veoeived the nomin
such persons as were to be put to the
for election from the coniinon-ltalK A&
tbe puttii^g of the qucstioD^ every man he
his band for thcr&e that ht: desired ah
chosen; and if it could be deci<M by
the liands, well and good ; and the
sei;|eant, cnnsuiting with the sberitfx an.
about htm, declared their opinion^ that th
tiou fell so and so, on Hxe one &ide tn
other ; but if doubtful, or a poll deman4isil 1
any one, then they used to lu ,ov f
mayor what was done in tli i ha
anti thereuj^Min they gave order lor [Uiiiirtng' I
election, or gi'auting the poll, and used to i
down 10 the hurtings for that purpose |
one ever thought that either the coma
jeant or the sbej'iifs, or any body elaei I
lord mayor, had the power of those coufj
Fur the commoo ball was always summo
by precept J'rom the lor J mayor ; and when i
bitarne^s was done, or was u» be put i>ff to e
oUier day, the cnmmon crte r by comitiand fra
the Umxi nuiyor nuikes proc^iamation * Y|j
* good mea of the hvery, ^c, may deptii 1
STATE TRIALS. S£ Charles lU l6&i^Jer/eUe Arrrtt,
I
«i|fti WMM^ an*! gi«9 your ^lleodaiioe h&rv
* mm much & day, or n[Km liirthcT summonfi**
Mi4y c^cr taikeU ol r*ummontn)(' a common
ySihy^ Bfty body but tiiy lord ni«yur. Uc tlld
kkf firtuftof iu» ofl&c«:, ami tie dissolved <ir ad-
jiVMd it by firttio of his fjfti
^ to Ik? o ipjcjui
411 this 18
any
iary
<-
lictrti rii* Mr.
111 tiiud iur itf wau ctioeen Aothi&jaiui-
^•5
Mr. C'«viMi, btt cvmes uui) gives evUleace
4lililir nNlillMMI'«eii4;«ltt WA r ^ rr r| lnit€
lh» ■!• lliAi niau«4pcd Uie ch^ > • i inand
iim al^titeshen^s. Ait^^ >i.i ..| thos€
iIhiI Iwte bt-en proilucetl uti t!ie
till? pil^rifi 'it. But alas a-
lofli^ ut r, r ibfm, they are
lo tilt* (uni tufty or. 'Hie eonmiou-
|iii«iii«i;ii» iH hut til jMit the ^itfstii>Q
4iC the cttmmim oier. lii so
■■d^ Ibal irlieo I i|iy«elf n^ati eouiRtoa fier*
C, as 1 it«tHl t<i fwv'^ by I lie shope m Loo^
lli«l inK^i tt# cry, ' iiuiv ^oee, l^imwy
if|ii« iair«^)l*j bart'.' It \t4«M^ pL^tn a roai)
ll4ia^.lliJit currv hody k:un it hr t ^rc tbeiK;
ikiip WMaqi nlty lt»tc eumeio be tuibraiigled
^Mr6di«Bi» and tJiM^ionHi and lite heal of
'"•• '"■ ^ ^jreat injihy
it)w, aod so
LS true. 8o
Ji«kr i& hut dour-
I t affect thiitCiiiic
hath been mi^h-
-1 ifiiftstevi UjK>ri
'T: and that is,
»ioa to
•I'aAitTilT, Mn<l '
husi II h' > the
, a» tbit it nr.-r
siAnni hr a 4Ncnilii:_i- t j
il u^H J fnay huvi' s ri '|
"* »arii lliifH* ; yet I mu i i
^ ti> attain ii) ttiat rigUl, am) laot go
itay« ti? w;iHi
^fflba*^' lutoyourhnn'^e*
! y«0 l. «L» you** ma fin
ly ibtftiirhii and iQi:nii
> a Uaiil«# tnitiittc^* «'
4) I oiotlaotiiiJik^
I mil of ^QBN«^
E bv my ri^nL, inf VI. n , n\
Dil^nctitii; you. Bui if
"M
^^■ir, ia4 km ba ptnu.*.
pixill:.!
W rtubt, utie way or oiiitir.
To come thai to ibe issue, that here you a«p
to try ; tJio point of iiib action before us re-
volvo* itaieif iuto a nonow oom|Miss^ and is only
this in short, which you ane to enauire of,
whetlier or no the plaintiff was ari-esu^d by t)ft»
defemlant without probable caiu»e, and inaU*
ciiJiisly f
Now matters of malice are ihifig« that re-
main ilia inati*» he^rt ; and it is imposaililelor
me to discover, wliether another man baih sk
Dial ice anainst me, d' I do not see it in bis ac-
tious. MiUice beitig: a thing tliat is intoroal, ia
iMit else dif»certi]hie.
Therefot'e you mugt consider die drciim-
sftances that do attend this a<f -' ' ' 'n-
dant, utid if so he tlicy are n on
art? to tind for the plaattifT: bm n mr^ i*n \im
defendant have offered to you any ciretim-
stances^ that can prove, or coDvince you, Uiat
he hmlaiiy prubahility of acauseuf aclioii, and
thixt mil attenije^l >rith a malicious prosecution
of that [irohable cause, then the issue is witb
the defendant.
Th*» iatherig^ht question, and the lair of
tliJB action *, and the f>icl to make it nut oot
way or oth^r i» iKivv tn judj^fmeot before yoiii
upon the eridonee ihat bath been given ou both
Now, ID point 0(f law, 1 an to tell vou^ aod
tliat you iHUJTt ol^erve, that tliough f have a
prolmble conjectural «:iiuAe of action against
another man ; yet if« to obtahi mv end m ihalt
I prosecute him malicioii&Iy, witji a desigii |o
ruin bim, or to nut an indioruity upon bijn> Of
the chanicter be heart* in the pubbe, or put a
hardiibip or ditHculty upon him (I mean oard*
ship and dtlHculty in ^Hiiiit of time)^ wbeo it it
prot);ible the remedy may he had at anotber
time, and the same thin^ done with leas injiiQr
and lc?i£ trouble ; then an action will lie against
11 1 e, lor hrin^in;^ my action in such a inanucr s
tlioui^h it he true, that I had a conjectural
canse of action against him.
Ai ill the cHAe that was here in this court the
other day t of Mr. i^winnocic against the (ler-
jeantf thiU came to hlui, and told htm in bis
^r, that he had an actioo a^iust him ; and
tbii4 was upon lite excliang^c i thercu|)»a Mr.
SvtinniHk hrinj^ bis action for this, a^piust
thin n>a]i, for whimpering this in bis aar : if ba
Imd prtniHl auy malidous iotenttojA to disgraoa
himi no doubt the action wouUI bai'e ban. For
tb<Mii^h tbi're mi^hl be a eauibe of action
a^^inst Hwinnock, yet it that be maliciously
[mriincd to t^rt him arrested « and held to bail,
wliere no bail 1*1 reiiuiied by law \ or with an
itttrtti lodtMj^rat^ hnii tipoii tlie t^xchangewheti
I I hnvehoen door elsewhere, or at atio-
ii.% thiii inie^iitBi' malicious proceeding
T' i*oi*6iitu^ malicious
. a man ubnoa^ious
10 nir ticu<j>ri m uir pany "'* proieculed. 1 dc-
sire to CKpreas myself by words, that may dc-
eisiv my meaniiag av plainly as can b« ; and
I hope I do so.
Then, i^tlefnen, takini|^ it tbua a« tlie
aounael Ci»r ilie plaiutifi' aay » to sb««r tbit tbi
363J STATE TRIALS, 36 Chahles II. iGM^PrUchard v. PapUlon, [iN»
defendant had no probable canse of action
ai^nst the plaintiff; they endeavour to an-
•vrcr what is alledpnl on the other side as their
probable cause. And therefore, that we must
roiisidiT iirst, what is said by the defendant.
They tell you, here was an election for
sherifik of London, at Guildhall, where those
tiersons that they have nnminate<1, were can-
didates, and put in nomination for that office.
And upon that nomination, as say those three
witnesses, we were the persons that had the
majority of voices; and thereupon we appre-
hend ourselves chosen, which gave ns the
rig^ht of action : so tlic defendant, say they,
sheweth some probability of a cause of action ;
and if he have not pm-surd it with maHce, but
in a regular way, the probability of the cause
doth take off from the malice, that else the
Tcry bringing of an action without cause,
would imply in itself. And they say tnie, for
I must repeat it ag;ain ; if I hare, prima facie ^
• probable cause, and pursue it legally, no
action will lie a^inst me for it.
But then, sa^ they on the other side f(»r the
plaintiff, That is no probable cause ; for you
could from those transactions hare no such an-
^prehensions of a ri^ht; for that is not the
measure of a T\ff\\i of election, or a rule to
ffoess who is elected by : for there beinpf no
decision of the election u|K>n tlie holding up of
thehanils, and a poll beinf^ demanded, whereas
the usual method is to have, by the lord
mayor's order and direction, the poll taken by
sucnai he shall appoint; you went another
wav to work, you go your wa^'s, and take
books to yourselves, and come not to the fair
determination of the question : and they brin^^f
Mr, Town -clerk to prove. You ha\e heard
what the evidence is, and you are judges of it.
Now take it, that this were in the case of au
office of profit ; as suppose it were a question
between me and .lolm -a-Stiles, for the place
of Bridgeinastcr, for the purposes and a poll Ls
demanded, and granted ; if they, tliat have no
authority, shall go after the i-ouit is adjoiirne<l
by hiin that has power, and take a number of
uames in the way of a |K>U by themselves, and
upon that come and say, J . S. has four ami
twenty hundred, and 1 liave hut so ninnv, that
sure is not any probable cause, nor a riirfit ; tor
you have gone liere out of the known and usual
method nt such matters, aud doiiend upon that
which can give no founilatiou of right ut nil.
This is tlie answer that is given to that by the
counsel for the plaintifi*.
You may ha^e fiiiy th<nis;uiil names for you
afterthat rate, and yet n^t be elcctoil, n«>rlidw>
probable cause of any sih'Is ap,irilieusioii. \\\'
all remember sir Sai'iuu-l Sierlinif 's *«aM\ whit-h
was upon the denial k*\' a pull for n platv nf
profit, that is to say, tlu hridyfemaster's plaiv :
but this is upon a wnmg \w\\.
Suppose there had In-en a poll gninleil (as
there was) in this case, and u|»oii that poll thus
managed, sir Dudley North and Mr. »ux had
bad the majority but by a very te» , and there
here was a ])robahle cause as good aa in this
case, as it now stands, became some of them
might happen not to have legal suffrages, yet
the taking the poll by persons of their own
heads, after the court was adjourned, avoida
all : so that that would have signifiefl oothing.
You are to consider of this answer of theirs.
Then the great thing, gentlemen, that yoa
are to observe, is this : to bring an action atooo
will scarce amount to a proof of maKee;
therefore malice being in tnis issue a mat
point of i'act, you must weicrh the evitaice
whether the circumstances So shew it, that
tliere was malice in Mr. Papillon. If the cir-
cumstances arc enough to amount to a pmof
of malice, you then are to find for the plaintiff,
and you are the judges what damages it ii fit
to give him for that injur}' : he has laid ten
thousand pounds ; but you must do what yooj
that are judges of it, think fit in it
Come, geiitlemen, it is bent to be plain, and
no man needs to be thought wanting of an ap-
prehension, what is the meaning of all
thincrs. It is coomionly and uniyenally I
to all mankind :
First, Tliat no man ever did parrae \
action as this is, to be sheriff, till these unh^pfy
times, wherein we are, and wherein we Mva
lost that quiet and feUcity, which I praj Gad
we may be restored unto. And thoogh ii ii
true, a man may lawfully sue for audi M
office, and it is no offence, yet it looks i
what extraordinary, and ttuit a man has a i
to do something unusual in the place,
for some strange purpose or other,
when a man has tmed for the office
before, as we all know Mr. Papillon did.
Again, It is notoriously known. That Ibr
several years last past the ifoi'ermiient bath
been ht'set : and that which is a bsaer thin^
than ever was thought of, or acted in tbc
highest times of \illany in these kingdonia (I
mean those of the late rebellion), the y^
iiU'thoils of justice have been corrupted, aad
all to sen e the main design of subvertiiig the
government.
Cientlemen, this is so black a wkkedMB
that no honest man, that has any sense of loy-
alty, religiuii, or cominon justice, hut mut
treinhic at the very thoughts of it. When wa
see such fello\«s us art* obn<»xious to the ga^
verumem, knou n dissientersirifm th»- e»!<tblis>i«d
worship, and that newr thuughiof conformui|^
to tiie government, or the laws, ciiil or Lccla
siasticnJ, or ci»inplying with the church, bM
only to capantate'ihfm to destroy it; oaj^
\i lu'n men, that are taken notice of io be i
till in n*|iroacliers to the government
\*hii*li iju'v live, •<hall get into office to
I iriuira must juries, and to enable |)cOpleto i
miiantl W guilt\ nf the falsities and bae
that human nature is ratKible of, no ma
that ha^ au,\ iiigi^nuity oV goodness in hin
must iT\ out as*amstit
niieii mei. bt-ni tu take oaths to aan
viliainy, and enter into clans, ami dnbs, \
ll^d been an Vti<n brouglit in suoh a caw;, , eabaU; lo desirov the most merdtul of
STATE TRIALS, S6 Charles U. l684^/or/ii/je Arrttt.
[366
inil to <)i&turb, distmct, aud overthrow Ihe
J bcsi offTovcnuoeiib;, what shall \re say ? And
Ithisyoii, oil of^'ou, genUenieiif know to
true. IV as it oot more safe to commit
trmon m ilie citv, tlian to stt upon a beneb of
iiutioe to Uring tfie iraitors to judgment ? Was
1 not more s^tc to conspire tie death of the
^iiugaod lit^ brother, than to gWe the least
frown, or look of dmideasure agtiinst otie of
dusfi siiii rllint^ fmints ? 016 not we know that
in be jurymen, to enquire
t the kiiifj^'s life aud ^o-
tin, ntai LRHHc tliut time were never
tboug^ht Kt to be trnstijd with tlie common diii-
t or society oi hcm<'*^t ineu ?
Hien men were rh«><n^|jt tittrst foroilices of
bu/It ti HNt iiceordinj( to thi'irbeJtu(thoo|jht
> ell -intended, to tlie overtlirow
1 1; (kl; do nut we all know this to
Eras true A» that the^un shines at noon-day. P
When traitore at tlie bars were in less danger
«l being- convicted of their treasons, than the
jiJKtw w<*re ofthelr iiveti?
Ir. P^pillon knows all this to be true emU
Btly . W hen packed juries were jrrown to that
i^t. ' ' i^h seven or tignt witnesses
I positive downright trca:iou,
nso! tuuiii uot be by these men bo much
I Uiou|(lit tit to be accused by an imlictment ;
'\i-«il!>4upiditN m ullttiny ^vere thin*^ brought
[\\fr*^ ftllow^ : nay. *><• flit were the proceed*
courtu ot justice taint cd, that in no
I action whatsoever, that came here to
but cropped hair and a demure look
th« lest Eigns of a good evidence, and
^h1UBll««il of an oath signified notb in ST, pro-
L-d the |Miily were to be propped up, and the
^n to receive an adrantage by it.
Vif Cod's sake, Gentlemen, let any man but
jously con!(tder and believe that there iS a
heaven, and a dreadful Day of Judgment
ery one of us must answer for every
ot our hearts, efery word of our
tnd everir' action ot our hves; and
^ me, what horrid impieties these are;
ttc^ as any ordinary ingenuous i>erson would
aotl tremble at
J 1 would have 3Ir. Cornish to consider
ever, till that lime of famous, or ra-
mou;H memory, thut he and hla fetlow-
'r. Bethel came into that office, there
fver in London such things ag tavern -
o/f juries, or claus aud cabals how to
difficulty, they would use to say to one another,
* Come, we will be so fair with you os to try it
* by a London jury.* So far was it then from
being thought, that in the city of London
justice shotdd he corrupted, that the ordinaij
juries of Lontlon were thought the best judges
and most impartial ofanyiuthe kingdom, 1
appeal to -^11 the practisers of those tunes that
hear me, if what 1 say be not true.
But i« hen (Uice they had begun to nick aiul
cult the men that hhuuld be returned for a pui
pose, aud got this factious lie How out ot or
corner, and that pragmatical, prtcktd>ear<
snivel hug, whining rascal out of another coi
tier, to prop up the cause, and serve a turn,
then truly people's causes were tried According
to the dumurcoess of the look^ on the one iida
or the other, not the justice of the cause.
Gentlemen, 1 take myself bound to tell you
of these things, and I wish I had no reason lor
it ; and especially iu this case I should not do
it, it being a private action between man and
man, %vere it nut tor the itigi'edients that are in
the cjLse, atid any man, tuat has my scuse^
perceive.
Now, then, for this case hpfore you. Gentle-
men, I desire, if posi^ible, 1«» be satisfied in on«
tiling or two : my lord mny^^r of Lcmdon* it i*
true, is not^ uor no iiei^in whatsoever, bo be of
never so great tjuahl}! is exempt from the law t
if he owe aj»y man uny thing, he is bound to
answer jt to him, as much as any the meanest
citizen of Lioudoii^ or poorest subject the kin^
has. Byt is he to be arrested just at such a time,
hecatise he is chief governor of the city* and the
action w ill sound the greater ? And'the court
of aldermen, are they to he an^ted, because
they are his ministers, and necessary subser-
vient assistants to him in his government, in
such a time as this was, when the government,
both in the city and elsewhere, was surrounded
with difficulties, and in great danger on all
sides ? What occasion was* ihere for such haste
and speefl in this action to be done just then?
Would l\lr. Papillon and ftlr. Dubois have
starved, if this action had been suspended for a
while ? Bir ^V. Pritchard would have been an-
swerable to this, or any mun^s action, when
the year of his office had been out: but it car-
rieth vengeance and malice in the very face of
it ; it speaks, that therefore they would do ii,
because he was then lonl mayor, the chief per-
son in Uie city for the lime, and thereby tliey
llowsr together for such wicked pur- should affront the governmeut, in arresting and
iiul J
m
1 these?
[aot most of you here know this? Aud
I not wcry one of your heails and your
I agree with me in it? How far im-
iceeding>i of those times, \n reft^reuce
tfrum what they anciently were ?
1 the houour to practise in this plitcc
^oa in my profe^ciou, wht^n without
uHxinoe, or mixture of faction and se-
t were all (}uiet, and ei ery one knew
/, and justice was done in this place so
iriy, that it was grown to a common
|roT«rh: \i thtrt wore auy oau^ of aoy
imprisoning the king^s lieutenant, in one of the
hijfliest places both of trust anil honour. And
tlus would be ^uve to make a great noitie, lyul
the triumph of the action w'ould make thett
party then to be uppermost, liuving got t}i#
chief governor of tl^e City in their own
clutches.
Nay, and because they w rmlJ he sure th«ir
malice and revenge should take place, ihej
take the very scoundrels of the party to be em-
ployed ID this great work« For before that time,
the corouer (as he tells you himself; used to
make his wafraats to tha oi2k»r« that usuall/
STATE TRIALS, 36 CSAEtfis II- leu^-^PriiAwd t. Papitfon^ [i
■re Tcrsed b ihnt hnsiuess ; but here he must
have the tliretrtion of the attorne?, aii<i who k
that but Goodenoiigli, a mtn weliar« all h«ir<i
enough ot; mid then Barlei^b atid Kt'dhig
must be employed, und hj whose advice^ but
by Ooodcnough and Neh!surp*s ? And aJJ these
fAscals, who now fttand atiuinted of ttcnsoa,
fnn^ be fetched in to consult ubuut n tit mnn to
D»ke an arrest : and there they pitch upon (his
llftaii Keeling foi- one* who was one of'tne prin*
tipal eoitspirators in thatdaiunable, hellish plot
«^nst the kind's life, and that of his royal
brother ; but, by the blessing and Providence
of AJmi^ty God, was made use of as a ^reat
instrument of prcserring those precious lives,
""nd witli tliem our gwernment and reJigioD,
nd tU that is dear to as, which by that coo-
spiracy wis undermiDod^ and f wiish we had
not reason to say, and tbink| the conspiracy
still to t>e govag on. But I hope in Ood the
goventmcnt, ns established both in church and
Hate, will always bo able to pre v ail , maugre
ill designs, and ihotetbatiire engaged in tliem^
br its destruction «
Now Keeling- teils you he scrupled the em*
ployment: No, said be, I desfrecl not to have
my name put in<» because 1 wns never coo-
ematd in any such thingr before, and noy bu-
ilDtti was of axiolher sort. But then !^fr.
jCoodenougii (and Mr. Brome the coroner no
'oubt had a band in it, though now he ha^j n
r treacherous inemorv^ und hai torgoi all
0 dene) comes and lells him, you nuist
k yonrMlf, and do this thing*; for you
h^ve a trade with the party, antl it will be ill
fnken if you do nut do it. And lieing asked,
whom he meant by tlk» pari\ '^ He tells you,
ilie rtisooniented parly r and he explains their
discontent to be sucK, that they would have
killed the king and the duke* * Now how tar
he waw engaged with that party is pretty well
known i and therefore if he bog^gled at such a
thing as this^ which that party itscein t^^as en-
gaged in, they would suspect him* and to, for
the party's sake, he was dranii in.
But men, uhfu lhi< thing ii done, pray.
Gentlemen, do but consider what (he eoiise-
quences might bare been, ajid which, perhaps,
^ay upou what has happened to be diiscoverefl
'nee, doubtieis,) they did design it. But, God
t thanked, those cotiseciuences were prevented *
hand they themselres have cause to bu thankful
I God Almighty for it. For here all the raa-
' ^ ttes of t lie city, that bad any care for the
government of it, were to be taken ap»
nd then here was a body without a head,
\m ton a MX of faction without any government,
nd if the heady rabble had been once up, with*
at those that had authority to restrain them,
rhere then bad been your liberties or proper-
^ties, gentlemen, or any man's; nay, theirs
Tiat were engaged in this design, if they had
tny P For those were things much talked of
by them. In what danger had you, and all
you had, for life, estate, relaiionsi and e^ery
thing been ? But it pleased God in his infinite
mcfty to shower down upon tis, and npon
this ctty, and the goremmeni, in a mt;^li
nreserratiott, put tin*' tt mtrt if»»* hr^jnts i "
rn power, 10 bn mec
together, and [ tj',
God knows, this whole city might ha? e
by this time once more in asheS, and most f
the king's snbieets wallowing in ilieir own i
one another's blood: and therrpuny too wo
have felt the sad effects of it, no doubt, as ^
as others. 8o that the conseqoenee of il '
to destroy the |rof ernment, and that
the party's bein^ engaged hi it ; •
be to gain aright, toniaketim imoo
ado to artiest the magistrates of the
then take advantage for some other
purpose.
Another point of circumstance iBat ii
denible in tliis case , is the partictitar [
that were to be sued. The mandamii
was directed to the lord mayor nij']
and there is a return made^ not by \\>
or the other man, but in the natne ot lii
the whole court. How eoroos it then to
that my lord mayor, sir Henry Tulse, and those
other gentlemen, must be suetl ajid arre<:led ?
But 1 warrant you Mr. Ccwnish, or hin party,
were not to be meddled with : No, he had so
much Jteal forjustice, and to '! ' v *' / *
rti^4a, that if he should ha?c i
10 appesr^ he would not hate i.iv.r,,
rest ; to just a man he is, and such a lover ^
ri^hC \%iihout all doubt: but he was in i
ger, I dsre sjiy ; they loted one anotber I
to sue one another. That, I say^ geai
is another circumstance, that cametli \
in it. For f must tell you, tliese thto^
not be smoiherod, they are as upparent^a^
bght : and thoogh it lalls to my turn ui %h
cause, to rcuiind you of them ; yet they ore |
well known to you all, as the passages m ya'
own families.
No, gentlemen, there was not a
riflfht in the case ; it was a desig-ned pN
vubny on purpoisc to alTront the govemme
nay, to destroy it, and set ois all tng^rther
the ears. And if he were ten tlioussujd timt>
Mr. Papillon, I would, and must tell him so;
anr) tt it were not for some such devilish end
aorpose^ he would never have been sil
r iJif an office he had betbre declined and
or ; and which he was only called to
a turbulent, seditious, factious party, that f
further aims* iti it Chherwine, I knoirj
Paptllon's humour m well, that 1 am i
he would much rather have be(*n conft
sit in his countiug-liou^e, than in Guifdf
a .'jcarlet gown, Alack-a-day ! I know ]
Papilloa knows how to ^endnis titne to I
ter advantage to himself,
Ay, but say the counsel for the defenda
We did go on very tenderly « and crvilly, ikwu
respecttuTly ; for there met at f^f r. Cornish's
house — Hlio, f pray T Mr. Pa pi 11 on, and Mr-
Dubois, and Goodenough, the prime attori
in this cause : sod there, fi»rsooth, they '
Goodenough, Be sure ymi do notliing
what is exactly accordiog to law ; and bt i
tTATETRlALSv SfiCuABLEslL ieu.-^far/atie Arre$t
[S79
ytn wanw it jvwj ciiiUy noil re«pectftiJIy tft
m% kn JWV'tr ^iu^l Mr* Cioodenoaifb.
Alnni-daj ! I rful pioiis ami iM>ti-
fhe*T pL _ it'Mw C'omiih had
i Hiayor, Hsi it was his duty to
An aidef uiAJi (wc kiiow il'f'uU
A:! tti C4«e i liave a tniod to do any particular
tnan ao injury in lib reptitation luid biinmeis;
tlie business tnust not be done downright, by
ffoing' to every body, and sayiiij^, Such an on©
15 p»uor, or a begging and do not tmst hiui ; bu(
I must caoninifly and sJilv 'mMnuatc^it, I am
veil) ajEul said to my lord mayor, tbere weru \ sorry for such a man ; 1 beUerc be is an honest
ptrvona at my hutia^ tnikin^r of nucU a
mttca-, aad I c vou of il» and
dcsitvyou won'' f»e had bhrnn
kn |wety it"l /^ juKlieti, niufh
aore iiitliat* thi ^uch cabals in
^ b^*'^' f;M, vp!!, as well as
tfwt? n I i I -ij bund in
hftOli i.. _. . '-- .. . u'a'JUi. aiid lucllOU^ busi-
It it t^kin, i(entktneo, ivhat the desigti was
fritm the begin nincf to the end ; notbintf but to
cuiae a Ittiuull and conftisiou iii the city, in
m\gs to (>ut that damnod hcHish con<ipiracyf
i«rifietU%tnjrttnn of il**- J^iup^ urid hi« brother.
t&d e% cry roan
necuiioti. Tbi
til; and itiat tt
peopk unto war'
U£,Df*^ ' '
l»be>
that
t and loyal, in
known to you
fM_ such a parcel of
lofrdherin this mat -
* "* fhey can pretend
lo tbt^ s^vcni-
■Kent, t , — .... bharc in it; no,
tliey arci^; ihaiare olmoirious to rlie
f»tminrri' I uny band tu it; but none
uf tb«ni cLuirli oi Lii;:! iad>mcu, or friends to
ber aSabtiid^cHl iv<»r'^liii»; notorioui diyacnters^
proiigvti* iltheiiticai n\\mm ili^t herd toge-
i»<*n, is plain Kn^lish, ami «e-
sefl ii\mn all tbeiip accajiioun-
ri|fht in a legal coudjc, or souse wqthc tbing-
I dcsijrned.
H'€ all knovr Mr. Rapillon to be a wealthy
i^Mi able merchant ; one tbai had rather
anded bis affairs abroad, or at the Ex-
, tban tlie expensive, troublesome othee
fllf of London, hot that soinctliin^ was to
► to WTiink a damned malice and revenue
tb« c^ovemmt^nt. And snrc, he must
:, as his (lariy it seems ilid, ttiat tliey
I not Ue sulfirient to subvert tbe jfoum-
t tfnW*i be could jjct into tbut office »
I tdl him ojienly ; and lei liim nr liisi
make their remarks upon it as tbey
I^Mi t t.i. t.f^ to jodjife wbetber ihe^
i Im ^ 'ridcDce ufmaUce to sap-
! pi. rJII.
wa* i\ a devilish mnJice
I bit* bcnr. «i, and be wanted im
•f^ortanity to edeci it ; und he ihont^bt it for
bta awn SK?curity to be be>ft to take tbt^ cx)ur»e,
tB»i nothing eUo wm In it. For alnmdancG of
people ha«e a mirni to do nut^cbief^ but want
3\\ior. \s todo it in: and,
n t [ hit upon a project,
thM kii£]i iinv d xjMHiMuw (iretence and co-
Irar of law ; for then tbcy think ibey arc iafc
irov, X.
Thia
man, but hoivever he oweth money ; and under
this sort of snirelltug', canting, whining', sly
rate, do a man any injury whatsoever : and
yet, forsooth, be sball bare no adfankafftt
against me for it: I shall strike a dart into mm
very heart of that man^s credit, and yet ho
have no remedy,
80, if 1 have a mind to talk acrain^t the ^o«
vernment, I will not do it aloud, and stjieak what
1 mean openly ; but 1 will whine, and jiaivd,
and cant, and make people b^lict« 1 ba?o
dreadful apnrohcnTiions ot nhat is desit;;ning',
and ytt not orin^ rnyijtlf in any dunKer ; for I
wiU aeap witlun bounds all thf white, tbouifU
1 do more roiscbicl thuji if I d<'aU fairly ami
above* lioard. * Alack-a day 1^ (as Mn Pil-
kin;^non said) * I am for the prc^ ' ' f
* tbe hberiy and pro|HTlie^ uf tbe v !
* 1 am for tbe law; hut I 5nd mi. Mt^ id
* Blran^cly rnn down in their rij^bts and pri-
* vile;.*t3i, and Ibere are verv tf'-ti fv 1,1 n-
* ceedtnyfs. And 1 am a ti *?
* taken my oaih to preserve *' ^ >f
* the city ; and I vitll ratlier bubuiit to Uie in-
* convcnfenrc of a troubltTiome otnce, fhaa
* let all run thus:* and inuoeititttely be aet»
himself cock-a-hoop, as if thf»re wer** no otwi
that took eare of thf^ city bes ' ' J
he were Kuch a patriot, that 1 -^
bke btui: and He, and Mr* tn»iu j, and .ur*
Cornish, forwoib, arc the only mc-n ot tbe
tioic *' '^ rd men; men that are for
tin- pertir^jof tluj subject, ami
tile 1., ...- i\'. t^htreasrlu ir» tli^j
only men ihat have made an iiv* t
them, and done wbat they couM y
them J and f^od knows we nn},^ht all of us
have enjoyed very quietly c^ery man his own,
if these contesting rjol»'r^, and busy factious
fellows, hfld tiot come nuiongf o«. Every ho»
nest man, I tell you, know« this to be true.
Genlienifn, As to ibe business concernin
tbe Uaiiiiv ^ .■:■'■'■. ^ :'■ : 1^, ■■ . * r
is left to I
Jfivf wbat \*n\ "iii^Mi tuiTiij; 1)1 uj»"'Ti hhi (1 iu\ nc-
LMi^jion, It is very tnte, it i« not so easy a
m alter to ascertain particubu* ila mattes in »uch
a case ; nor is it in an ordinary w^ay bo easty to
prove, ihar because sir W iUi im TVifcliurd waa
m prison but five or «ix ' • , be could
suffer so much damage .. • t^n tboa-
sand pounds. As in the m^ 1 \>' \ u' 1 l^ it
quality and honour, it h ni 1 - j v i » i- ' ' \n%
partictdar dflma*fe : nor in the t W- ol an^ of
3^ou, that arc wealtby, able, sufficient criizcna,
to say you are a bankrupt, when wc all know
it is impossible to be irue ; and so no particular
' doth etiitue that can be proveil ; yet,
if the tbiui? for which tbo actioa in
^...u^:;.L were designed wiUi raalice^ tlwu|fhr
20
1
I
4
S7I] STATE TRIALS, 3ff ChablbsII. l684^-^n« Gnai CaaedfMaimpMe9^[tn
the ill teign be not eflected, that is no thtnki
to the partv, nor is to weigh with you, but the
sialiciotts design must gorern yon.
' Now, here I hare taken notice to you, that
the malice of this desi^ here was not against
■ir William Pritchardas such a particular man,
but against my lord mayor, that this dan that
met at Russel's was an oTerflowing of that gall
or malice that was in his heart
If Mr. PapiUon had brought an action upon
a bond onl^, certainly it had been notfaine but
what he might very well do ; or if he had pre-
tended to sue for a bad debt, that if he had
■taid would hare been Tost, it had been some-
thing : but you see what it was, and it is as ap-
parent why it was, in that Mr. Goodenou^
•aid to Keeling, threatening him with the dis-
Sleasure of the party if he did not do it ; and
ir. Ooodenough and Mr. Brome were such
■trangers to one another, that he roust threaten
Brome to complain of him, if he did not ex-
ecute his writs presently. Do they think all
mankind are so dull or blind, as not to see
through such thin artificial stuff as this?
Gentlemen, this is tlie matter : the govern-
ment is a thing that is infinitely concerned iu
the case, that makes it so popular a cause : the
goT^rnment of the city, the honour of your
chief magiiitrate, and indeed tlie honour of the
king, whose substitute he was, is concerned,
and that puts m. weight upon your inquiry into
tlie damages of this case. You are to consider
you give damages to the plaintiff, not as sir
William Pritchard, but as lord nnayor: and
vour sererity in this rase will deter all people
from euteritig into clans and cabals to make
disturbances, and alTront the government.
It ia a thousand times bcUer to keep within
their own bounds, mind their callings and
employments, and concern tbemselveft with
their own aflTaim, and leare the i
of the public to them to whom it bdonga, atti
ia tntruited with. And aocordinff at we My
in the law maidm, so aay I to Mr. PlapittNi
and all the party, * Ad Coaoiliom ne monAm,
* antejuam Toceris.' And do not be eousd
with maaginary dangers, and gnmndkM jcft*
busies, into tomnltuonaand diiorderiy eouieia.
You had much better keep in your oountiBf-
houae, I tell you again, and mmdyonr mo^
chandize. my, and 1 do not doubt but ire«
would much rather have done ao, if tben Vet
not been some further fetch in it. It wmiis^
I dare say, out of a flmnk, generona bnaoar te
oblige the city, that Mr. P^nUon wwU hspe -
spent his time and monev in the office ef eha-
nff ; no, 1 know he had Cetterweyi to enfloy
both.
It was not the generous mind of Mr. Dalhd^
that called him on to be sheriff of Loodon, li
entitle him to spend his money ; but en pv*
poee to be one of the first, that riionld turn iB
things upside down in the city, and distmb Ae
goTerament: and they that auceeeded "
carried on the project; and th^tbat ^
have been in, but could not, had a :
doubt, to follow so worshipful en
he laid before them.
Tlicn the Jury withdraw to ooosider of^Wv
Verdict, and afler half an hour*a atay, retuina^
and found for the plaintiff, and tmnmA d»J
mages to Ten Thousand Poundif and coili li
Four Marks.
X. C. J. Gentlemen, you seem to Jbe |
that have some sense upon you, and een
tion for tlie government, aiul 1 think have
given a good verdict, and are to be |
commen&d for it.
312. The Great Case of Monopolies, between the East-India
Company, Plaintiffs^ and Tuouas Sandys, Defendant: Whe-
ther their Patent for Trading to the East-Indies^ exclusive of
all others, is good.^ 35 Car. IL — 1 Jac. II. a. d. 1683-*1685.
1 HE East-India Company having a Patent
cranled them of the sole Trade to the East-
Indies exclusive of all others, commenced a
anit against Mr. Sand\s for trading thither
without Licence ; in which case the following
Arguments were made, viz.
SIR. HOLT'S* ARGUMENT.
(Afterwabds Lord Chief Justice.)
The Governor and Company of Merchants of
London, trailing to the East- Indies, r. T.
Sandys, T. Mich. S6 Car. 2. Rs. Rot. 126.
The Defendant comes and prays Oyer of
* " The six follovnog Arguments in this
Grctt Case, were copied from the MSS. of
Samud Pepjs, esq. (SecrtUry to the Admi-
the Letters Patent, which are set forth, i
have declared and pleaded.
To this plea the Plaintifi have
My lord, I do conceive the gen«al qucstiQaWi::
this case will be this, Whether or no an adiioo S^-- 2
by the Company upon this charter ; for tet OT ~
defendant not lieinga member of theCoafHir'
has traded into the East- India without BoaCi* '
of the Company ? My lord, I think tiKiu Bif '
be two questions nuide in this case, fint, «kv =^'
ther or no this grant of the king to the (Sims'*
pan;^ to have the sole trade to the Iiidici»i0^
elusive of all otiiers hissubjecta, whctfacrtti^
be a good grant ? Secondly, aupp^nay it li ll
ralty) in Magdalon college, CanlMlg*. n0
Arguments are of great oodooq to iIm fdU
in general, and to every indiridoal muk, aill
J75J STATE TRIALS, 36 Churles 11, l684.— 7^« E. I Cmpmy 9. Sandy9, [S7% .
infidels are by ibe law token notice of, aud ihi
• gw)4 fifrmnt, yet wbelher or no it does rest
■uch nn interest, bberty or franrbli^e in tbe
dMnpmoy^ lluit an action may be broa!|bt and
aifltfmiuedby tliem, a^inst any person tt-ading
10 tbe £a£t-'lDdie9 ; who is not *|aaUtied by
llikehsjter? My lord, for the tirst, I do hutn-
Wy cmc&we that this charter granted to the
IBUpttny to have the sole trade to the Indie*
noliiititeof ah others is a good grant; aod^
mj brd, I f»haU endeavour to make it a}>pear
to PC a good grant ft^tn these romiderations:
fim, my lurd, from tbe consideration <»rtbe
pescMiithat are to be traded withal, and they
m infiiSelsy iuhI not chrisiians, 8etondly, my
lord, from the coosidemtion of foreijp trade
itslf, how and in what nature by Vaw, it may
he rettmined by the king's ro) al power. And
10 tbe third pUce, consider the cirrumictAnceii
nd particulars of this grant made to tlie com-
faw in this case.
lay lord, for the first, that does relate to the
) to be traded witb^ lliey being infidels
i christiani ; 1 do conceive that by the
bivof llie Iftnd^ no subject of Englanil can
tndt With infidels, without lioeace from the
hag ; or al leant it is in the power of tbe kin^
tofttlhibit it, and for this very reason ^ because
either immediately or by conse-
j mnce trade is the life of a nation ; and
mul be of great service to the protessors of
tbekw, to shew on what grounds and reasons
liie caaa was adjudged. And tbe proceedings
Ml tJbe€liii9 Warranto (vol. 8, p. 1039), having
kiea fittud uaefiil to the gentieroen of the la«v^
iillia leaami why the^^e Arguments, (though
ttot iO properly a Trial) spoke by some of we
gretteil men that ever appeared at tbe bar,
uthere inserted. The Arguments of Holt,
Finch, Pollejcfcn, and lawyer, are
Ely abridged in Skinncr^s Reports.
IrgUDienti of Mr. IrVilliams, and tbe
rbief Justice JeflTeries, are not meotloDed
ere/' Note to former Edition.
8ee» tlao, 2 Sliower's Rep. 366 ; and the
tefbred to id Mr, Leach^a edition of that
Amotig^ the MSS, of Ovren Wynne ^ in the
libriry of All Souls' College, Oxford, is a re-
prt of the Argiiments in this Case of Holt,
Tr^y, Pinch, Follexfen, and Willianas. In
Hot report tliere are not inserteil any obser*
mioaa from Jetferies at the clof^of Folleicfen's
iifaoient, nor is there at the conclusion of tbe
vliole, any mention of the Judgnieot, The
unnffemeot of Pollexfen's reasoning is some-
vhatoifferently exhibited^ and the arguments
flf tiie other counsel are reportetl with some
*irbil variations of trivial importance from the
itpott to the text. To Pollexfen's Argument,
il there, as here, preti.tetl a reciul much at
icQfdit ol* the Declaration of the PlaintiFs.
(k tbe whole, the report in the teirt is much
bsie full ; aod, as it seems, better arranged
1^ Owea Wynoe^s, which contains not Ibe
Iq^mnmlaf ar Robert Sawyer, tbe occasiooal
law bath adjudged them to be jierpetoal ene-^
mies ; the law hath set a mark upon theiOy and j
they are u<«ed as all other enemtm are. An<|j
so 7 Rep. 17. 0, lite exprejis words of my ion
Coke are ia Cnlvin's case ; sayii he* inBdelSM
are perpetual enemies. Reg. '2B5. That sett
forth the writ of protection, that was given tog
the prior and brothers of the boRpitaf of 8t»
John at Jerusalem, that it v?b» u»etl for tIteJ
defence of tbe church, * contra Christi et ona*d
*■ niam Christianorum inifnieos^* 1'^ H. B* 4.|
If a man do beat a uniti oullawttd, a traitor, orj
a pa^n, and they bring an action, be rnavj
plead \m being a pagan ; and in abatement ofl
his action: I mention this, my lord, to shew 1
what opinion the law ha,s uf these ]»eQpIe,3
juflging of them to be enemies as they are iu«>|
tidt^ls; and ihr that reason has exekiAed them
from the benefit of the law, and the common
justice the nution affords : and fitmi that it may be. ,
inferred, that since the law bath excluded tdctui
trom common justice, surely the law will no
allow an intercour^ or intimate eorrespoi)d*3
euce with such persons to the subjects of Eng-^
I find. And, my lord, this is grounded upon
the care that the government hath, or ough
o|]iser% attons of the Court, or the conclusion i
the cause : an«l it exhibits Pollexfcn*s Ar;fti*]
ment less correctly and less intelligibly.
This Case is brieBy noticed in AnderavmH
HiRtorical and Chrotioiogical Deduction oft
Origin of Conunerce, vol, 2, p. 566, edition i
moi. What is there said of it is thus coo^
eluded:
" Lord Chief Justice Pollexfen laboniTd no
unsuccessfully to prove the Company to be 1
true monopoly, ana Sandys to he mnocent, m
the Company was not established by any ac
of parUanieut. Yet the king's prohihiiiou Ib^l
tbe ship not to sail, obliged Sandys, after MM
year's suspence, to sell olt bis ship and cargo!
with great loss. The ships and goo«l3 of somO|
other interlopers, an they were then style'^
were rd&ewi«>e ^ei^^ed and contiii^catt:d in the fo|«
lowing reign, in the years 1^8G and lOSf ; bu
they took out no licence from the CompanyJ
AM which was decided against the spirit and
maximfi of our common law, partly fur sup-
porting a lawless prerogative in the crowo
which, under a lietter monarch, six year
after this time, was agreed to be legally dii
claimed.^*
As to the king's prohibition here mentioned^
see 2 ShoAver's Rep. 902. Roym. 488. S«^mo
particulars respecting the East India Com-
pany's Com plaints again^it Interlopers are given
bv sir Richard Bulstrodc iu hrs Memoirs, He
also notice* the grounds of Jefferies's Judg-
ment.
See the Arguments in tbe Case of the Con_ ^
puny of Merchant Adveoiurers against Rebow^
3 IMod. Rep. 136, and the books referred to f^^
Mr« Leach'^B edition of that work.
875] STATE TRIALS, 36 Charlbs II. l684.— 7»f Great Case of Manopolk$: [STB
snbjectji uf England have rifi^ht to such a
forei^ trade, that they can, ad libitum^ trade
without any contruul ; and I conccire they
bare not.
First, my lord, I conceive that the liberty
and riifht of a foreign trade,- depends upou
a^rrecment and contract with tbrei*?n princes,
in whose i'x>untry the trade is ; and if so be it
do depend upon agreement and amity with the
prince ; then have not the subjects of Enghnd
snci) an uncontroulable right of trading, be-
cause it depends upon the accidents of peaee
and war ; which, if there were such a right, it
coidd not. SO ch. Magna Charta, * Umnci
* Mercatores, nisi publicc antea prohibit! fiie-
' nint, liabeant salvum et secnnim condncton
* exire de Anglia et venire in An^Haro, et mo-
* rari et ire per Angliam proeterquani in (eni-
* pore guerra!.^ Then he cocs on further, if
there ha]»peu to be war with a foreign prince,
and the kingdom of England, and the mer-
chants of that country be found in England ;
this shews that war is an interruption of tbt
commerce. 12 II, 7, ch. 6, my lord, that sta-
tute recites, that the merchants-adventaren
inhabiting within the city of London, and
divers parts of England, liad free passage, &e.
into djvfcrs parts of Spain and other places, that
were in league and amity with our kingdom
and sovereign ; so that it appears that league
and amity is the foundation of commerce.
St^Mcii, in W\.i Mare Claiisum, says, therigfala
of trades arc founded on the covenaota of
]>rinces. Wl/at is the reason ? Lest the man-
noi:t and morals of the people should be eor*
ruptcd by the example offon'ign nations. My
Inid; 2 KoUs Abr. 214, mentions the parlia-
iiioi.t-roll of 1 li. 5, wherein it is said, That
thr: Cuinmuns did petition the kin^ that the
niorchrints of Koglund, payiuf' th^ cnatoma '
an<! (iilior du ics, mi^^ht iiavc libeity to export
to have, by the constitution c»fthe government
itself, of the christian religion, which 1 con-
cciTe is the main end of government. The
profession and preservation of christianit}* is
of so high a nature, that of itsi'lf it supersedes
all law : if any lau be made against any point
of the christian religion, that law is iptoj'ac to
void. Uh^'? liecause it is made againi>t the
prime anil origiual end of government. If the
king conquer a christian country, their law-
continues till it be altered by the king ; but if
lie con(|UPrs a pagan country, the law ceases
ipso facto to Ik* law ; for the law of infidels
is contrary and repugnant to the chrjsiiau re-
ligion. VVhy then, if the cliri«<tian religion
have the pre\'alence in chn!i«tiun countries,
there must be some means provided by the
law, whereby the king may nave a power to
preserve it : and there is nothing more dan-
gerous to thf right religion, than for the pro-
fessors of that religion to have commerce witli
pagans ; we read how the chihlrcn of Israel
were perverteil from the litie religion, by con-
verse with the nations roimd about ihem, in
the I^M>k of Juiiges.
And Groli»is I>e Bello et Pace, 1. 2. c. IS
parag. li. says, * (.'avrndiim e!*t enim ne
* niniia coiiiuiixturatio contniriuni adfuui in-
• tirmis, 'piaiii^bri'ui utile crit,sedes disiiugui
* si<*nt Isrurlita.' soisrsiin ah .'Kgyptii*! habita-
• niiit.' The go»oiiinj<nt is to iak<M'are that
there is nut an infix tion, by corrLspondcnce
with inhdrls; m\ l«iril,it is not to be doubted
but that tlic kiui; is lu liate a cure of iht; ciiris-
tian religion, l.i ol:l tiinrs of popeiy, Jirac-
ton, lili. '2. rli. ,'1. tlu- Vhvj; ol iit.-bud, Kays
he, i:j • Dei niii.l>Ur«t xiiMiius.' Ia 3. vU.
Unuton, * Jus jj'iMuuin ist (HuhI ail sUitimi.'
This is Iduked ):|).>ii to h'! )i:iit of ihc Jus
piibhrnni, the car.; oi* rcliniMi and saered
tiiin-^Sjaml ih«* projnigation tlitrcof ; why then,
my lord, if this ho imo, llieii
the king to take care aiul lUsi hUro\al aut
rity, to prevent all his suhjecis froinLcing [»lt-
▼eftctl. My lord, I think it is plain by th<-
writ of Nc exeat livgiiuiny that sa\ s thJ king
may pi-obibit any person from gi>i'iig bow)n(l
Sl^a. U'hy ? For the •kljiice of llii* loahn ;
that is a sutPu-ient reasi»ii, it is not in tlicnower
of the party to litiu^ate it witli ihit kinir, but
he must submit. .\<.\\ al\>a\s nli'^Ioi:!^ fir.>t
to bi? regardtti ; stroKily. tlie ,li-fe:io<: oftho
kingdom ; and iMr.liy,*^ ih;» Hide thtrf<if.
Now, iny lohi, th;; s'nlij ots of a rhrisUr.u
prince iToing to ira(h> wiiii liitulrl/:, m'm-^ in
their c«»nijiany, tliat may he daMuvusu> Ij tho
Rti:le aiid i'4:!;giun ; so thai it uinsl ne<'essariiy
he iu the power of liie king io controni it. ilofi.
C:l7. Courtei^rs easr, it was uiljndgtrd that an
inionnatiou did lie at the common law, liefore
any statute, against any ]iers iis that should
transport coin, bcraiiie it is ag-ainst the policy
anil state of gov('iH\tucnt that m.inc'y shuuld be
tran<:poried ; now, if it be against the policy of
statu to trade witli hititLls, by the same reason
that ought to be restrained . ) u the next place,
1 will consider forei^'^* *»'i<;^ and whether the
it is la\>ful tur I lln-ir goods to a;>v place or country,
i
notwitb-
siaiifliiif^aiiy proclamation to the cM>ntrar}' : and
t!ie king >ayij, lie will be advised, he
aiivise with his council, j^ly lord, froin
lime to this it appc^urs that there waa no
pl.'iint of the king's proclamation as illegri,
that tiid prohibit their trarle ; but they ouhf
pray that he would make an alteration of tbs
law. Hut there were several proclamatioBai^
that timi: to restrain the subject from tradil|^.
with foHMgners ^therefore they desire he irotH^
consent they might trade) ; but the king te_:
that cas'! did think fit to part with his
but gives the usual answer in such case
lord, in the next place it is necessary fdr
king to have power to restrain a foreign tiadj^>>
because^ a forei"^ trade, as the case may W^
may be very inconvenient and roischierpM v
for It is well knovtn, that if so be the irap
tion of foreign commodities do exceed the <
portation oi domestic, that trade is ratbar
grievanf*o than a benefit ; so it is ni#, -% II
:3i!6, ami, my lord, there has been sui" '
apnearance of this matter of late days.
My lord, the importation ot* Irish cattle,
the 18th of this king, chap. 2, was C ' "^
J] STATE TRlAtSv 5(JCflARLESII, l684,— 7*f E, /, Company «. Sanitfs, [5/8
frain i
4e )odfiiM»t»t Aii
L«5^'
why
s not
i come to
I th:in ad-
njro-
. *rt his
, he kiAS n |)ciwer to
luUy when wt? lisiFe
lUe |isirlinrrteiit, by whom
\%evt\ <Um Lifrtl to [>e imi-
lii tlic! rii^fc of the Ule of"
tli>it vviiH iij:i»te roncern-
s time j [\\iit^ waft o
■ '^ Irtifin
- thf
, .li the
rit thoLi<;li
rd, when
iTinayance
11 vt'. ifthe
Mti tlicin. But
iilfiliun oftiradr,
and it is only
i that ti*ad*?» to
fruit* under the' ;^-
>> do : ind I think,
'' I ir this com-
i'li«lrr»d Ji trade
■ r^f of these
j1 unity to
_, u interfere
i iiiti the Com -
idd not trade ;
vvilJ be made
inftt plea. My
I, that the sc^i
-^ to part with
' ; which »
I cannot he
i>% wnuUI
rds to he
itr: <M M stiaitit, you
e iiherly cd'tidde Ui
' ' * no meichauts.
i g'ne to it IS
II" of the «ta-
1 wilhoul
tint what
I IN, that none
111 for tmviLfa-
u*u», that j««, ufien
so I ininit cninjiajN?
u :J0 eh. * Dm-
aitfa prohdiiti
< I Htrcnnno con-
t vcttii'e in VrK^hnni,
" ' •' * thry have
wiihmrl
U in ihc
ir to bo taken
idc rndeiiviNnfi
to this r^iic ;
"^ ke it out, thai
litlkWMMf.ii let voiir
inBcteb, but ihe trade was drove with ChrLs^
tians : ivTi ' V e was not surh a tradf
had Mt Hi ilstahitc, wi^ must not
esciend tSiL i..i^ i^. ni*-. ^a^e, which differs fVoni
the reason of trade in other casesi. That there
W8S nnf^'' ^ lliiiik niii>i':irH nLiinlx' \i\' Imk.
tnry ; H .,
* whcreii , cf
* trade was in Hoiiarid» I'urtUf^l* Ace. now/
says he, * men not hcin^f content with those
\jonrncys, they have sonjjlit oat the East and
* West- Indies/ and have made now and then
* suspicious voyages/ And it a|*[^»e;Ar/^ by the
statute of H. 7* that I mentioned beloitr/ that
th«^ fide of England coni^islcd with
ne:' , »nd so the trade wm at the time
of I : of this Stat ute«
3 !o observe at to the case I tt^
poUi ,. ..-.., when the Comoioini did pMilion
Ihe king, that they might have liberty to tmdc
iKii^^ ith^tanding^ any )iroc!amation, Itolls Abr.
^M, they were not of an opinion at that time,
that this statnte did extend to m^chanlSf to
C:ive ihem liberty to trade every wheve at tlieir
wiW aad ph^aiiure ; if they had, they would
have insisted n|»on it, and urge«l it to the king^,
that whereas tliere was a »<mtuie gave them
free h belly J therefore desire the law might be
ub^rred : but they do not deny, no, they
tacitly acknowhtlLTethe kin^ had such a power.
My (ord, it dueti appear what the ancient
trade of Eng:ltmd whs by the customs ; fi>r at
the common la^v there win no custom but in
three thittjLT*, wool, n oolfell and leather ; these
are the cu-itoms that were due to the kin^ by
common )aw : indeed, there was fhrei^
custom, but liiAt was for a foreij^Ti c^rnmo<lity,
and was prize ; Dyer 1(35, 2 Inst, 5 '2, and '13.
Davi^, Rep, 8.
Now. my lonl, tf so be the trade of the ii*«,
lion had toiniisted uf other commodities, it may'
be snpi>o«ed there would have been eastern
paid lor them ai^erwards ; in Kd. 3rd'8 time,
when new tnidcs were introducefl, we find
act^ t)f 1)4 rl lament made for raising new cus*
tiini ; tnerclbi-e bince no custom was paid, but
these ancient customfi, we may supimse the
trade of the nation mostly coiisi^tetl of thos«
commoditieti. Fitzherhert, Nat. Br, 85. Dyeif.
163- Alerchdots as well as others may t»e pro
hibited from ifotngf out of the land, or anl
pei'son wliaUoevcr; and Davica, Rep. fol. 9,1
l^ives one reason why t!ic king did j^ermit th
iiierchanis to irade» tvhen it was in Iiih powt
by writ of Nf tuftit Kr^'/*«wr,ora proclauiaUon
to put a slop to them.
My lurd, in many cases, when the dcnnp
an act may l»e to the public detrinuut the kin|
hath powtr lo re!<(tiain it, and it cannot be don
without the king*:* licence : Co, Lilt. foK 5. a '
p^nlijcct cannot bnitd a castle, or other tbrtrets
defeubible, i%ah<oiv licence of the kin^" ; why*
l>ecdiLse it lutty ht/ dangerous. ^Vhy ihen
should a subject trtidc with an infidel country^
without licence tW*ni the knit; ;' for b^^ tradii
with infideU they tfudanger their rehgio
And, theretore^ as'il requires licetic« to b«ild i
3792 STATE TRIALS, 96 Charles li/l684.— 7«e Greei Can^lUhmapolki: [380
companv, then tbey trade oiit of tlie gorern-
mept or Englaod, and out of ita protectioo.
Thia Company ia incorporated and made to
have the goremment of this trade ; Ihey bemg
cbriatianay no question, are to Uke care of the
christian religion ; and to take care that their
agents and iiuitora that trade under thia oonati-
tution, keeu up to that religion th^ prafeas ;
but certainly it is quite another thing whea
people trade of their own head ; there they con-
vene only with in6dds, they cannot havft
divine officea.
My lord, it has been objected ; Oh, but aav
they, if the king give a licence to dome, thoogm
they cannot do it without the kinff'a liceno^
yet the king having dispensed wim thia law,
this dispensation shall have an univenal infla-
enoe, and five licence to others.
My lord, it seems to me a veiy strangn in-
ference; they acknowledge, that maks Uua
objection, that without the long's licenoey b^
vond what it is, where the king hath qualified
nis grant solely to the company and thor &ie*
castle, though a man otherwise might lawfully
do it upon his own ground ; so for the same
reaaon does it to trade with infidels, 9 Rep. 87.
b. 2 Inst. 199. A man cannot inclose his
cround to make a park without liceuce of the
king ; in that case he takes nothing from any
body, but such inclosing and turning proAtable
ground into a place of pleasure, may be of
Sublic consequence, and therefore cannot be
one without the king^i licence, 11 H. 7.
S3. If two men pla v at sword and buckler, and
one kill the other, that is telony ; but if they
play with licence of the king, that is not fHony ;
ao that the kiujg^ hath power to prohibit, and
by his command make tliat umawfu), that
otherwise would be lawful. For the kin^ may
command a man, by his writ, to stay m the
kingdom, and if he go contrary to the king's
writ or proclamation, in that case the ku^
may seize all his lands for the contempt, as in
the case of sir Francis Inglefield : so that as
the kin^ may govern the trade of the nation in
regard it may be mischievous, the king may
hinder it, wnen it will be apparently mis-
chievous.
In the third place, I shall consider the
Grant ; and the Grant hath tliese things in it ;
It is a grant to a company, that they and their
children shall trade to the Indies, notwithstand-
ing any statute or diversity of faith or religion ;
and that they should have the sole commerce
and trade there. There is a prohibition to any.
of the king's subjects to trade there without
licence. Now, my lord, this grant I take to
be good ; for, my'lord, though it may not in
itself be lawful without the king's licence, yet
it is iu the power of the king to make it so.
And for this reason can the king make an alien
a denizen.
The reason of the law, why an alien is uuca •
pable to purchase lands here, is because it is
against the )K)licY of the land for to suflfcr a
foreigner to come into England, and enrich
himself with the lands and ^roods of the king-
dom, yet the king may cure this incapacity ;
but notwithstanding he l>e made a denizen,
yet does he remain an alien still, and subject to
that prinee from whence he came; Dyer, 3
ch. B. So that notwithf^nding it uiay be
dans^rouB for an alion to have land, yet the
king 14 entrustfHl with it, and c may give this
alien lilicrty to purchase land.
My lord*, it is, as [ have observed, unlawful
to transp4irt the coin of England ; yet the king
may give leave to transport coin, as there
is a prccedi-ut :i Car. 1. of a licence to trans-
port 10,CK>0/. So, my lord, tor the trading
witli infidels, though in itself it is against the
policy of the government ; that is, for the sub-
ject tu have an uncontroulable liberty to trade
at their pleasure ; yet the king, who is entrusted
with the administration of the government,
may give authority to do it. And there is a
great deal of difference between trading in a
company, and trading out of a company : if
they trade iu a comuan v , they trade under the
goTeDuneDtof£nglwids if they trade out of a
tors, they would have it extend to all the peoulo
ofEns^d. I think it is the tirat time that
ever the king's licence, or authority that 1m
ghret, shouldbe extended beyond itidf. J3nt»
my lord, the great objection will be, that thia ia
a monopoly, and therefore the fSTf^t is void kk
law ; with submission, 1 think it is none ; and
1 hope 1 have said something already to piofa il
to be none, and it does not come within tha da»
finition of a Monopoly, 3 Instit. 181. A ■»•
nopoly is an institution or allowaaoe of tba
king, "by his grant, commission or otherwiM^ la
any person or persons, bodies politic or corpo-
rate, of or for the sole buying, selling, making,
working or using of any thin^ ; whmby any
peifion or persons, bodies politic or corn — ''
are sought to be restrained of any lice
liberty that they had betbre, or hindered in their
Utwful trade: restrained of the freedom tbcj
had before, thai I thmk they cannot make 001,.
that they ever had any such freedom. Thegf
cannot make out that they were in posse winB
of this trade before, therefore this charter doaa
not restrain them of any freedom they had|
then say they, it hinders others lawful trada.
My lord, 1 have made it appear, that Aa.
trading with Infidels without licence of tha -
king is not a lawful trade. But to go farther^
thougli the proof lies on their side, they ha?iB|f
the affirmation ; yet I hope to give such evi-
dence, as is even as much as can be exptcHi
in any case. In the 43d of queen ElizsMtbi »
parliament was sitting at n estminslei^, and aft
that very time there was a charter mntcd tt»
this Comnany ; and a charter that had thea*
very wonls, of having the sole trade excluLf*^
of others; and there had been another ch
granted before of havinfi^ the sole trade,
of the oueen. Now, in Uiis jiarliament, 4Sd i
the saiu queen, the parliament fell very } '^
ously against Monopolies, and brought ia '
great catal^ue of them. But, my md, I^
observe, that in allthecatafogne,aadinalld
dabatea of pariiamaat at that tima, fkmAm
ssj^H
Miitefd «C llie Eftil-lDdii com-
MT*t dMitaTy Mlb«r «f ttie cbarti*r of the
irn if iteifiiMB^ on- ^ tbe ebtiier of that
1«j pilltflUfl i nfty, ther" ^ -K-t -'^ !i>>?ch ai«
paite itia^ii itf the ch uny
filar CMBMijr* My lord, l ;. om a
Im^ iImH » lately come out, T< ^ Col -
^oc b ibtt wbole cat&l(vu(^ of MonopoUes
mk liw liill dcbftte of Iheui : bul iis Ibr uny
of r(»r]K>r:^tioa^» tttougb there were
' at lluit timt^ there U not the least €oni-
STATE TRIAIA 3<» CliAfiLES n, l6S4.— 7%r JE. f Cmpany v. &in<fy«. [^
excluding nil others i ist of Jan, 34lh of the
ctQcen, A charter ^nintei! to the Turkey -com*
pony : 5lh Jiityt 27 th of the queen, there wei«
letters patents granted U> certain noblemen and
^n tie men to trade into Barbary, and that
during twelve years none should trade there,
but they, dieir agents and assigiis : fiOtli Eliz,
a patent made to the merchants of Exeter to
have the sole trade to rirers of
in Guinea : S4th of thequeen^
another patent to Gregory and Pope, t«> have
the sole trade to Guinea* My Jora, all tliese
1 havi! DOW quoted, I have caused to be em-
mined on the Rolls, and are to be Found there :
2 Brownlow, 296, there it was held by my
lord Coke, that no subject ought to trade to an
infidel country without licence of the king, fbt
fear of being perverted from the Chnsdan
religion ; this my lord Coke saj'S, and he sayg
he had seen an ancient precedent of a licence.
More, ^75, Darcy aJid Allen. Justice Dod-
deridge (that I think was only then Serjeant)
argiies against the patent, but be did agree that
a grant to a company to have the sole trade
with infidels is a gooa grant, and the king by
bis prerogative might restrain his subjects
from it : he admits a patent for sole printing
wasgt)od; why, because the public was con*
cerned ; my lord, the parliament of lale time
have been so far from looking upon the East»
India company ^o be a monojiol y, that they
have declared it to be for the good of the king*
dom ; 14th of thinking, chap. 21, in the pre*
amble it is reciteiL
Now, my lordi I hope I have made good,
that the king has this power both by prece-
dents, by authorities, and opinions of lawyers j
and also the judgment and the opinion of th#
parliament : and that it was never condemned,
and so I conclude this first point The second
point, my lord, in the next place, which I shall
be very short u|>on, f(>r that it will be conse-
quential to what I have endeavoured to prove
before ; that is supposing it to be a good gmiiti
whether if any persuo do trade to tue damage
of the Company, it Ls a good ground for au
action.
First, 1 do think the Company have, and it
is very plain they have an inneritance, and it
is a franchijie and liberty they could not havt^
unless they had the kiiig^s grant, and others
excluded from it; then it does agree with all
the cases of this nature ; wherever the kin^
grants a franchise to ont:, and ani>ther person
violates the franchise, the king's patentee may
have an action of the case, against the penHiii
that does iolertere or violate the franchise :
n H. 6. U. 11 H. 4, 4r» HUppcwinglhekiiif
grant a man a ftur or market, if any man set
up another fair or market^ thouglk with the
liretice uf the king, yet be that has the gtmbl
shall have an action. Now the Cast'lndiie
Company are to be at great charges, iiay»
there is a trust reposed in them, that they nhall
trades and carry od Chit (rade for the good of
the ComiNiny; so ihattbey are pul lotu a
trade, and are obliged tO carry it an. TtM
My lord^ between th* 43d of the queen, and
^ iOlli oC k M ; about twenty-
te<ty«afat ''^ queen, the dis-
tm/m of Mo^ ^ti in parlia-
■■1; sti4 lb*' rini^, it may be
f^fMilt All thi. . . > f h the mat-
IVif OMttop^^ ^ ^^hat were
And aliLL . 1:1:^ LoaMdera-
: ati agitation aft it had, they
the statiin^ t>\' 2) Jar, which
■aaa as W a sKlitug and the nrero-
^ftf««f tlie cvt»wh, uh'^ ne subject;
B4itm vmidmmn u ami has these
vak, aN Moaujpcitit commissions for
^lalieiiyrtoir, vc. «m a^.uv^ ol nny thing within
tUkta^Vilommi^ns, }^hy (Init is condemned.
* * * it docs appraT thfit the parlia-
tw% far (rom ittujdemnintr the charter
sy, <»r til*- «*aart« r of any ttthtr
I tbcre in nn ejcpress provisio that
r aC Monopolies s»huuld not extend to
lor the onlerini^ or managing of
I think the words of the statute
__ . ..J tJitB case, yet they were so care-
H ibfilii^ vi^ukl htive a proi.'iso to save this
7"" ' roaaifiHni*^. Ai»d, my lord« there
•ilMaia, 3 /•'' f^ap- <S. by the preamble of
H that the king had
a ittiat ^'K TMtTchants to be a
* into 8pftia
s that were
Ue mischief
is to trade
id not con-
k It took it to
» ri an act of
of trade to
ivr they do
! given the
ny» yet it
e to trade there,
Now, my lord,
i^'.ui i lAud usage is a gieat
I fthall shew your lonl
that
trade
lef son
atnanifedto
Gilbert I
Cy«a, ftu:.... ,^ :
^£. Ibereua p^t^tt < i
etmntrit-
>l
lafttlaiisiadiv'
> Ui Ittfv IIm tola trade tu Turkey,
i!i,.it wi
hrr
V
383] STATE TRIALS, SSChablbsII. \6HA.^Tke Great COie of Mm^poliei: [884
defendant hath no right ; if they hare • riglit,
they shall have a remedy againat any t^at in-
vade it. And for these reasons, I pray your
judgment for the plaintifls.
SIR GEORGE TREBY'S ARGUMENT.
(Afterwards Lord Chief- Justice.)
The Governor and Company of , Alerchants of
London, trading into the East- Indies,
against Thomas Sandys. Trin. 35 Car.
8ecundiRcs:. ll<»t. 12(5.
May it pleaso your Lordship ; I am of coun-
ael in this cko With Thomas Sandys, the de-
fendant. The case arUcs upon a charter set
forth hy the plaiutilFs, and a statute pleaded
by us ; 'and it is as Mr. Holt has opened it.
Only I shall, for my purpose, open it a little
more than he did.
It is a special action on the case, declara-
tive ; wherein the plaintiffs declare, that king
Charles 3, our present king, by his letters pa-
tents, bearing date the 3d of April, in the 13th
year of his reign, reciting that the governor
and company of merchants trading mto the
East- Indies, had been of lonu: time a corpora-
tion, and enjoyed divers liberties, privileges
and immunities, by virtue of divers letters pa-
tents, and charters, granted to tliem bj[ queen
Elizabeth and king James ; and the king be-
ing informed, tliat divers disorders and iucon-
veniencios were then lately committed, to the
great prejudice of the said company, and in-
terruption of their trade : whereupon they had
humbly besought the king, to grant and con-
firm their said charter, with some alterations
and additions, tending to the advancement and
benefit of their trade.
The kuig gives and grants to them, that
they shall be a corporation pcqietual, te have
succession and capacity, Sec. And further
willed and granted, that thev, and every one
that was, or should be of the Company, and
their sons at their several age's of 21, and their
apprentices, factors, and ser\ ants employed by
them, might and should freuly traflic, and use*
the trade of merchandize by sea, by such \\ays
the kfaig. his heirs or ■acccfNwn, and who dolli
not, or will not accept of such trade.
And further grauts. That they and the'
cessors, and their factors, senrants, and i
nees, in the trade of merchandize for
and in their behalf, shall for ere
have, use and enjpyi the whole, entire and
onlv trade and traffic; and the whole, entira,
and only liberty, use and privilege of trading
and trafficking, and using the feat and tradoff
merchandizing, to and from the aaid Rail*
Indies ; and to and from all the islands, P<Mfti»
havens, cities, towns and places aforesaid.
And further grants to them, That the laid
East- Indies, or the islands, &c. shall nolbe
visited, frequented or haunted by any of hit
subjects, during the time that these ktten pa-
tents remain m force, contrary to the tnw
meaning of the said Letters Patents, and the
virtue of the prerogative royal. Cfa
also and commanding, and prohilnting*'
other subjects, that none of them visit, hir
frequent, or trade, traffic or adrenture by \
of merchandizing into or from any parttfdia
said East -indies, &c. unless it be by wd witti
the licence and agreement of the cempaay,
under tU
ill writing first had and obtained
common seal.
Here tlie declaration makes a break, or iln.
and so it would seem as if the rtfllraint ml
prohibition were alisolutc and genml; te
u^ran i >y cr prayed of the letters patenti, tli^
being set forth in hac verba jit appeanlil%
sub 1/todo, under the following penalty, n.
Upon pain that every such clher pcnoa or
peraons, that shall trade to or from the Blit
Indies, shall incur the king's indignation,. aai
forfeiture* and loss of the goocb, inaPcbandiMl
and other things whatsoever, whidi aoahoi
be brought into this realm of Enf^snd, or any
of the dominions of the same. At altotha
ship and shi|Hi, with the furniture
wherein such goods, mcrchandiaes a
things shall be brought or found, the one kilf '}
of all the said forfeitures to be to the king^ Hi '
heirs and successors ; the otiier half to'tit '
company. And further, all and ereiy the flAt ^
offenders, for the said contempt, to snfler iBr' ^
prisonment during^ the king's pleasure; '■' '
and passages then found and discovered, as \ such other punishments as to the king, Ul^
they should tliink fittest, into and from the i heirs and succes<tors, for so high a conlBa|^^
East- Indite; ami into and from the islands, | shall seem meet and convenient; andnottMi:
ports, havens, cities, creeks, towns and places I in any wise delivered, until they and evctyij^
of Asia, Africa, or America, or any of them, | them shall become bound to the gOYomib^r^
beyond the Cape ul' Itoiia Espcranza, to the ' the sum of tOOO/. at lf*ast, at no time Mb- <
streights of Ma*«el1an, as by Uie court of the alter to sail or traffic into any part of thejilt
Company shall from time to time be limitefl
and agree<l, without any molestation, impeach-
ment or distuibance ; 'any statute, usage, di-
versity of religion or faith, or any other cause
or matter whatsoever not>^ ithstanding, so al-
ways the same trade be not undertaken, or ad-
dress«Ht, to anv country, island, port, haven,
city, cnvk, town, or place, already in the law-
fufand actual possession of any such christian
prince or state, as at this present is, or at any
tigM bereatler shall be in letgue or amity with
4
East -Indies, v^c. And furtficr grants, ^^
the Company may grant and give UcenoenoM
the common seal, to any |>er80us to wtiki
traffic to the East- Indies; and that the Ai—
his heirs and successors, will not,
letters patents, give licence to any
sail or trade there.
Bv virtue of \«hich lettera patenli
alledge they have been, and are a oorpW
and have had, cetaUisbad and maBBsed«i
■tiU maaaga a gnat tndaof
Aij STATE TftlALS, 36 Charles 11. i6a4.— TJlf R /. Company t\ Saarfy*, f aSG
thcsnid Ejuit- Inilies, with the i uhabi i ft dIs there \
wbo«l the lime of m^khicr the said lettei's
fUntt, oraince, were not christians* nor »ub-
feooi to miy chmtisn priuce or Ntat^ ; but
■fw, an4 Are ititicJHs siul frnemies of the
chriitran fiith : and have sp«ii and laid ata
nai)^ '^Mriisofnioiipyon thatocijaiiion.
An -ay, That the cnrjmierct' and
tfidt^ aiut i;r5iaiJ tannot Iki ejit^iiishenJ, n]inuii<;ed
«f wfried on but * jjer hujuatnurli Corprm C*or-
* ponuum/ hy giicti a corp<»rntion ; and tfiat
Ukcy oii^bt to hare and enjoy the sole trade
d^ftr "r- -t-rt^j th^ form aiid tifectof the
Bill ...^ .i,.. rhoaia*! S^mdys beiiigr a sohject
ef ibe Utns^, and nf> mt^ml^eT' ot the Company,
fiof son, ajijufurirt, factijr, Rervanlor assi^ijec,
lutK'^irntiy kncmiugr gj^e prcrtitiies, &nd de-
»r^rfiir Jo prrjndite the co^upany, ctmtrary to
lift i^tlt^'t of the said Mtei's palewts,
isiHkidj^ ihe ft&uie, and tdtt-r (he l'oiti>
^> haxi jstitiled their trade, 19Jun, 34 Reg.
didtrmde into ihe Eaj^t-IndjeB^ within iheparlSf
nfiooa^ and places ahr»i(! A{)ecified, beyond
lk# ^ofnQOtorv of (lOod-HopCf on this «ide the
iif^hts of MH;^«*liaii aforesaiti. in c«itam parts
lad plaices, callHl Ateheoft, Mtchlopoiati, and
JWta No fa, wuh a certtiin ship, catted the
btpiiCtalioo, wiibout the Ikvnce, and agninst
^be will of live j^vernor and Compaoy, and to
fvejudtc«,% iinpoverishuient, and manifest
and a^itinsi the ibrm and eifect of
l«it«'i s patents ; ta the datnage of the
s lUOO/.
&• Defen<lant prayi Oyer of the letters
\M\ VflKTCtJiMiii tliey are sel forlli in /**rc
fIcreupOQ the defendant pleads the
IK Ell. 3. cap. 3. whereby it is enacted
L tlir sea he open to all manner of mer-
.. "' ^--^--^ vviih their inercluuidi^^ where
tl>f»in.'
.. It pbiniiffn da«itir,
\ijaf\U i itliaU not differ with Mr. Holt
aU; of e«niln>^erBVi hut make the same
Btsf, viJt. I, Whether thb patent, a^ it
^ I an exchision of ail other Rubjects from
I %nAe, he j^'ood or void ? a. VV hether here
%e Uk apt suit broii|rhtf
la the first plaee, I nhatl not rjue^tioo but tlie
|aii*itl i« l:oo<1, lo make l!ie«e pennons a corpo-
tiliofi, iLud all the privileges and benehtii they
^Ui derirc from h^\u^ a nody fx>i*porate, they
tiitr en|vy> AUtl apply tlietu to ttride if they
Will. Yet as tq X\\\h partictdar, 1 shall obaenre
thosfuiaeh, tlvnt when jftich charters of iui'or*
*ii were first taken notice of in U. Eliza-
K and K. Janieg's tinx-, they did not escape
sure of k^artted men, who foresnw tne
f them. Co. Mag. Char, ^0. Three
which hafe finir pretences are mis>
¥<nia: L New Courls; 3. New Officea;
' Corporations trading- into foreign parts
which under the fair pretence of
I govern mcnt, in condus'ion tend to
of trade and IraJiic, mA in lh«
I ptodocc iBoiiopoliat.
^ T^at t
1 RoMfi Re|», \y.Q. Justice Doddcridgc saj
these thiiic^ would overthrow tlic^ realm.
In this argiim^tit 1 am sensible I am to speak
of a tender point, the Kinjf*^ prerog-ative : but
I Hhall treat it with that regard and deference
thfil 1 ought, and ax our bwk^ teach us. Tha
prerofip\tive H great ; but it has lliw general and
}nsi lindtation, Uiat nothiug is to be doiie
thereby that is nrncbieroas or injutioiis to the
subject.
l*ioch*sLaw, 81,83, 84. s[H ' r' t fy of it,
as a matter diviner *Tne s he,
* carries G«>d'» stamp, and has intMjatlow of
* Gml*s exeellencits i:i\ea him ; ihc poucr of
* Gifd is always joined viih justrc^^ ; lor to \\t^
' wn>ug is not bmnil»oten<*t*> but wesilrfH^s. So it
' is with the king ; he can be no mioo^j doer,
*- he is all instice; therefore he has a pieroga-
* tive in all things that at^e not injunouu to the
* suhjeci^ as he may create corjKiratJons, '^cc.*
(B^\h he.) And so say K he may create corpo-
rattons, and this corponiti<JO ; hut for thq same
reason, be cannot add a rcstr^dnt tt> all other
subjects from exercising this trade.
1 shall lay for my foundation, that thispatent^
as to restrsining the trade, and eJtcfiiding nil
other subjects, rias the nature of a moutJ^ly,
and is therefore void in that particular.
Mr. Holt and T are agreed on the descnption
of a monopoly, which is made hy my lord l*oke,
Pla. Coron. 181, viz. an tn?4litatiLin liy the klng^
by hb? gi-aut, comintssion, or otherwise, to any
person, or ccirporation?, of or for the sofe
ouying, selling, making, wovkiog or usin^ of
any thtn^ whereby any pers-msor coj-poraiions
are sought to be resin* in ed of any freedom or
hberty Uiey had bctbre, or hindered iu their
lawful trade.
And the like descriptlot] ia wade in the pre-
amble of the Act concerning Moniipolics, 21
Jac. imp. 3, where it is also dccUrtd^ That all
grants of Mono|>ohps, and all other matters or
tnings whatsoever, any way tending to the in-
Ftrtuting, erecting, stfcugtheniijg, furtheringp
or coiinteiiauciog of the same, are ahogetber
contrary to the laws of Ibis roalm, and trtterjy
void, and of no effect ; and in no wise to be put
in use or execution. ,
U therefore this trade to the East- Indies he
a lawtu! trade, iKeu this patent for the re«tratn-
iug it must be a monopoly. The nature of a
monopoly consists in rt*st ruining a commoti
rJelit ; it appropriates to one, or a few, what
otliers had the lawful o^c of before.
1 confess, 1 &t^ a little wonder to hear mer-
chandizing 10 the Kasi- Indies objected against
as an unlawful trade, and did not eirpect so
much divinity in the argument ; but to that i
shall endeavour to answer by and bye. Ge-
nerally speaking, merchandixing was always
reckoned a lawful trade; every man might
use the sea, and trade with other nations at
freely as he might use tli*^ air. Ami for this
trade to the East Indies, it *fas lawlidly used
before there was a company, or else there hiA
neterhecn a company. iC^his trade ha« been
Igtig, hut this «otn|>aiiv \% tt^le by tb«s« !«tt«n
2 Q
I
387] STATE TRIALS, 36Chail£s IL l684.«-^T(k Gre^i CmffMmwfiiki; [989
cernind^ trade and Irai&e ara agviiiil lk»
common-law, and divcES ftatntes ; md it is as
truly said by him, Co..Pladta CtOfQna, 1B9,
that though these moDOpoliaBweree¥er witlMul
law, yet tlipy were never without frieadi.
Sereral attcmpU have been made to tfam ;
Mr. Holt has cited some ; for the moat part,
they lurked private, sometimes they have ap-
peared in courte of justice, but there they have
always been disappointed.
Itot. Pari. 50 Ed. S, BU. S3. It appean
there hud been a patent granted to oae P^ehy
for the sole selling sweet wine in Londoa : this
concerned a thing of delicacy, and waa a nuller
of small moment thon ; yet the patenk waa
brought into pai-liamen^ and adjud|ped veid^
and tue party jiunished.
Co. Mag. Charta 61, and Pla. Cor. 182. A
patent granted by Philip and Marv Hn rfspcrt
of Philip's landing there) that aU Malaacya
should be import^ at Siiouthamptou, and net
elsewhere, aajudged void. 14 H. 8, waa tkf
CoUegpe of Physicians erected by letters palenii ;
wherein there was a clause, that none witbgal
their allowance, should praictise phyaic in, off
within seven miles compass of London. Cokali
8, Rep. p. 114. Dr. Bonham'a case, bnitlMf
were well advised that that clauae in iIm
letters patenta waa void ; and theicfim 1ft
H. 8, they procured an act of pariiamant m
patents 32 yean ago. Thisianot^tingaiahed,
nor distiniriiifihable ^m the leaaona and rules
laid down m the other cases of Monopolies.
1 shall chiefly insist upon two cases in one
liook, Coke 11 Rep. the Taylor of Ipswich's
case, fol. 53. and Darcy and AlWs Case,
galled the Case of Monopolie8> fol. 86. It is
the main ground of both those cases, that at
^ronion-law no man could be prohil^tcd to ex-
ercise his trade, for that is an avoidance of idle-
ness, it helps to provide sustenance for a man
aqd his family ; arid it is a service to tlie king :
vid the consequences of restraining trade are
pernicious, as raising prices of commoditics'and
imnoverishinc[ men, Imd commodities, (Sec.
ifmr, that foreign trade was understood to be
comprehended under this general resolution, I
dpsire your lordship to look upon the report of
the Taylor of Ipswich's case, in 1 Rolls Uep. 4.
where it is said, that no trade of merchandize
can be hindered bj^ patent, and a charter to
hinder trade at sea is void ; as that a hundred
men should have the sole trade, or the like.
The king's prerpgative cannot make this
good; it is not lawful for a man to restrain him-
self from liis trade, 5 AJoor 242. 2 Leon. 210.
a bond not tp use his trade of a dyer or south is
void, so a hqnd not to plough hisland.
^ And so a bond that a man shall not go out of
bis house, for a roan must serve the king and
do his duty witli his liberty and his labour ; and
if merchants and mariners should enter into a
bond or a covenant not to trade, or not to trade
to the East Indies, it were void. And if it be
unlawful for a man to restrain himself from it,
the king cannot restrain him.
Another reason is, the king cannot by his
letters patents take away the subject's property,
and 1 do not know a greater property than
freedom of trade and lalMur ; the king cannot
lake away six-pence that a man has got hy his
trade, much less can he take awayliis whole
trade : if the profit which a man gets by his
trade be his own, the liberty whereby ho ac-
quires it la his ou'u ; otherwise tiie whole pro-
perty of traders were precarious.
Mr, Holt would expound the statutes that
are pleuded, to sigtiify that the king shall not
lay an imposition upon merchandize. Though
thai Im! not the true meaning of the statute, yet
even that were sufficient fur our purpose, and
will pn)ve that the king cannot totally prohibit
a man to tratle, for il' he can prohibit absoluidy,
he can prohibit sab modo^ anil require that none
shall trade unless they ppy so much and so
much for licence ; uud so by that means he
might lay that imposition, which, it is agreed,
he cannot.
In l>arcy's patent there was a rent of a
hundred marks per aiinuiu reserved to tlie
queen ; and tliey that ilrew, and tliey that ar-
gued that patent, suppnsi;i^ the cmnt of the
aole trade to have been good, luaoc no doubt
of the consequence, that the rescn-ation was
fEOod.
It is trulv said by my lord Coke, Co. Nag.
Caba. ^ aaU 68. Tha^ all BIoMPolica con-.
make good tlieir letters patents ; and the wttf
reason of making that act, was to give ihsl
force to that restraint, which could not be hf
the letters patents only.
15th Jacobi, was granted a patent ibr sok
printing of Law-books, the validity of vriadb
liappened to (!omc in question in 1666^ in Chaa-
eery between the patentees and some hooJE-
sellers, who had acqmred copies of lair-booka
to be printed, and it was leierrcdto aUiksT
judges.
Many si)ecious reasons were given to main-'
tain it ; as, that the invention of printing waa
new, that it concerned the state, and was
matter of public care ; that it waa in thai
nature of a proclamation, and none ooal#
make proclamations but tlie kuig. That thai
king had the making of serjeants and ofiioni^
and Judges of law ; that they were printed ina-
itarticular language and character, with ab-
iirc\'iations, ^c. liiit it was the opinion of sB
the Judges certified to my Lord -Keener, thai-
those persons who had acquired copies sinca
the patent, could not be restrained by tha^
imten: fioin printing them.
Lord Chitf'JuUict, li received aooChv -
Judgment in the House of Lords.
Sir George Trcby. Not this case, n^ lovd*
But besides the trommon-law, our poiaH ia*
most strongly established by partksnlar ala*
tutes^ and it has been the wisdom and care of
princes and parliaments in all times to asaoC^
this freedom of trade.
Magna Charta, cap. 30. All roercfantt fit'
tliey were not openly prohibited be&nlsMb.
have their safe and sure condncl to. iMpai^
come and tarry, to buy and sell
OTflT TRIALS, 36 CiiAKLEs II, \GB4.^TAeE. L Company v. Sandy 9. [390
36 H» 8, cap, 10. Gives power to the kinj,
diiriag^ his Jife, to restraiit or ml at liberty
traffic beyond sea for certaia cauutries. Now
Heary the atb, aa my lor*! Coke flnst. Co,
30 1,) observes, stood us high tipoahis preit)-
gative, as ever any king' had done ; and would
never have aceejit«?d his power fmm a graiil
of parliament, if ne bad had a prerogative of
tliis nature liefore,
33 Khz, cap, 7. It is enacted that the qiK^ea
may prohibit transpoi'tiiig' of corn by procla-*
mation ; aad so it is 1 Jac. ca|]. 23) which
shews thai a procb mation , whicli is an at?t of
preroBfatire, was not sufficient for the purpost*,
^vilhout tlie autliority that was derived upon it
from the acts of narliainent.
iVIy lord, \ snail now answer Mr, HoU*i
Arguments and Allegations.
First, He says, tliat, bv tke law of the land,
no suhjcct can trade witu infidels without iImi
kitiff^s licence.
But I say, this h |rrati& dictum, and I must
deny the law to be so. He cannot Had anir
statute, judgement or resolution in all our Ww^
books to ibis jmrpose,
A!l tfie authority he has is a casual saying'
of asin^lejudgfe in MiclieU)on»*s fps«.
For m Durcy and Allen's case, there is not
a won! spoken by Dcvdderidge^ or any otlieti
€^once^ning' trade with infidels*
of ei-il loll, by the old and rightful
tbfdvms, fz'xoept in hme of war,
hiii tnie> as Mr, Holt j«kys, that this pro-
_^SiiiySl ' n ' I,' biil ft is plain too,
fft^^Ktisb^ rty of tradings and
lIi their raercliandize-
vs, Indecdf that this re-
. but more stroojffy proves
had this liberty ; for they
extended it to aliens, and
fast lell the English without it.
Ytnm thu fVf.utioD (* nisi antea puhlici^
*|pv%llibiliii I cannot be inferred that
{ft ti^g mu^ 11 Ids subjects from trade ;
tmy lord Cokcj in his Comiui.'iit. fol. 57,
Hya, ihftt this prohibition must bt* intendetl by
Kt of pari ! • f hat it con ce ms the w hole
m^y atji! 1 by the word ' public*;.'
Bcftdcfi that, ilus prohibition must rrtlnte to
•Beits only, and that likely in i^espcct of
^Qctit Statutes make it most clear.
, 3| cap. 9, Merchants strangers shall
land come with their njcrchaudize. ti Ed. 3.
merchants, strangers and
V and sell their coiomo-
Kjver iX^^y come, witl»out
uu ; not with stand in|j charters or usage
' c!<mtrary. Which churlers and usage
^lie) tile king, lords and comtnons hold
&fn'» forfc, as being to (he damage of
P>i ^ ^re^t meU| and the oppression
it. 2, cap. 3. All merchants,
s and foreigners (cAcept those
krhic^ uiiy) may without let, come
Iftlh jrindize^ tarry and return.
t5 L , ..at. 4. cap. l. If any charter,
^,Jinration, conmiand, usage, allowance or
d|^i3Dl be made to the contrary , it shall be
tid.
18 Bd._3, ftatp 1, cap. 3, e^t&blithefi the
|l)i asin the time of that king's pro-
Bdttiere is uiicd Ihe word En^hsh
, win other statutes tlie wtwrd iJeni-
that it was then looked upon ni
lit ri^tf it having been in the time of
Bsiitors!,
iKr^, cap. 1, 11 n. 2, cap 7, and U R. %
], are to til e like purpose.
WtMtbere has been occasion to prohilnt
9/rf merdiaiidize, it has been done by acts of
?r H. a, cap. 1, con«u*h)ed ^8 It 6, cap. 1,
pijMWMu loerehandize growing or wrought
wtMn th(! dominions of the dtike of Burgundy ,
^odllie tike, 4 E. 4, c:i|i, <hike re-
futeffihprocUmiiti'>(i i'«»j uu* cloths.
3F
> imp Ui Ling woollen
k] many other sta-
reigu, as cooceruini;
rtsh
^ our
and
■ ^ re-
Dodderid^ says uotliing of foreign trad^ ;
cites and affiroas the law of Mag. Cbarti^
cap. 30. S
Michelbom*s Case ts in 2 Brownlow, 50^,
and it is in these words: HHl 7 Jacobi, in tli#
common bench^ upon a motion made iot ccin*
sultatjon, upon a prohibition awarded/ it was
said by the lord Cfoke, that no subject of lb«
king may trade with any intideb without li«
ccnec of the king ; and the reason of that is»
he may rclinauish the cntbolic fiiith and id -
hereto Infidel Ism. And he said, he had seea
a liccnct! made in the time of Edw, $, wherd
the king recited, thai he having a special li'ust
and coufidence that his subjects will not de-
cline from his faith and religion, liicnseil hint
ut supra ; and this did arise u^ion a recital of a
licence, made to a merchant to tratle to llie
East-JLndies.
First, To this slender authority « I answer,
If the law had been according' to this eoB-
ceit, there uoulJ have, been much said anil
done about it m diver* cases; th^^ woaUl
have been proceed ingrs against [lersons that
had trailed to Grenada, (of which the i^Ioon
lost the dominion within those 200 years) to
Barbary, to Turkey, and other uilincl ptaoea
in Asia^ Africa, or America, but we never heard
or read of any till oow»
Secondly, It is an apf>crynhal case i that
book, calM Brtn^nlow, is of little authority j
it was printed without approbation of tha
judges, or any legvil licence. And the coa-
cfipt is ol less authority, it is repQrt*^i^ ■- '- ^ - *rt
ubiUr^ upon a motion, a cju»ual sa ) >v
jud^ej which the cleik Uwk, «nd I . :. -li-
took, for it is na where said ia my lord Cokc'i
I
391] STATE TRIALS, 36 Charles LI. iGS^-^lie Grtat Can i^ M«up%lHSt [39j^
own books, though they are voluminous. And
the ground of bis saying (it* be did say) it is,
titat he had seen u ficcucc in Edw. S's tiuie,
Company, and their action bcoqght, and all
possLbtlay of such a thing for them. There ia
not nor can be any peace, treaty or intercourse
bnt I cannot learn that it has been seen by any between the English and the Indians, but a
man else. Neither Mr. Holt nor I can find it, ! constant never-ceasing state of war ; and espe-
xior does my lord Coke tell us where it was -, \ cially if it be founded upon a Divine precept:
perhaps it was taken upon trust, and mistaken, ■ for whatsoever prerogative the kinsf may have,
perhaps not auiheiitic, and pcrha|i6 a sufficient he cannot have a prerogative to dispense with
tlie canon of the scripture.
But my lord Coke himself does much clear
this matter, Jur. Co. 15j, where he says, that
there may be peace and leagnes of commeroe
with infidels. All that the register says, is that
the Hospitallers were instituted for delenoe
' contra Christi et Christianorum inimicoi ;'
which is an expression of the cnemiei of re-
ligion, not of the st ate. In the book of Henry
the 8th, he said indeed obiter^ tliat a
outlawed, a tnutor, or a Pafpn being
a Faffan.
APaffan, Turk or Jew, may maintain ao
action of debt or battery, or other personal i
answer to it would have been found in it ; how
ever, it was Init one, and certainly, if the law
had rec|uirrd it, there would have been more
than one licence from the beginning of our
Records till that day. ' Una Hinindo,* &c.
Thirdly, The retison there given makes
strongly' against this charter ; the reason is,
lest men should decline from the faith ; so that
it bcems there is a special trust in the king,
that he should suffer none to go into infidel
parts, but such us are orthodox, sound and
firm in religion ; such of whom the king is j shall not have an action ; it is true iu
specially assured that they will not fall from . an out -law, or a traitor, it may be pleaded ia
the laith, which is to be exercised by the king ' abatement : but no other book says, nor can
only ; and he is to grant licence to particuli^ anj^ man maintain that the law is ao in caae af
and knovFn persons of whom he has this con-
fidence, the king cannot grant lus royal care
to tlie company.
But now this charter would have tliis trust ; tion here ; were it otherwise, there could be
no trading of the Jews here, nor of the Turin ;
the contrary whereof is implied and admitted in
the Act of 5i'avigation, 112 Car. 2, c. 18, par. 18.
By the like reason that there shoald be aa
trading with infidels, then; ought to be. no ib-
reign truile at all, for there is no coimtry wham
the religion does not difier in soinewliat or
other from the religion established in the
church of England.
And whatever he says of the children of Is-
rael, I think there are many instances in tbe
Old Testament of commerce with tbe beatben,
though I, not foreseeing such use of divinity
here, am not so well furnished.
As to the citation out of Grotius, it is by way
of caution only; but tlic whole drift m that
chapter demonstrates, that commerce and
leagues with infi«lels are lawful, and he ex-
Eounds that text of 2 Cor. which my lord Coke
ottonis upon, to refer only to joining viifli
: them in idol-worship. An<i to shew deariy
: tlie mind of that author, he has writ a whota
book, intitled, Mare Libcrum, to manifeat tbe
' right and lawfulness of trade to the Indiea;
, and he says, that Ciod in nature ap|iointed aH
peojde to resort to, and trade with others, fix.
that he hath given siveral commodities toaomei
■ ^vhich others stand in need of.
I must take Irave to say,' that this notion of
Christians not to have ccuiimn-ce with iufidda
is a conceit al)surd, monkish, fantastii*al and,
i fanatical. H^is a-kin to JJominium fundatmr
deputeil and transferred, for it contains a li
cence not only for the then members of the
company (who were twenty -two or twenty-
three years ago), but their unknown succes-
sors, and to their sons begotten, and to be be-
gotten, and their servants, factors, afppren-
tices, and licensees.
Mr. Holi also gives a reason for this trade
being unlawful, namely, That the law has
jndgerl infidels to be perpetual enemies, for
which he relies iii)on another singular saying
of my lord Coke in Calvin's Case, fbl. 17, and
recites two authorities cited there, namely, the
Register, C89, a*id 12 II. 8. 4.
And he takes notice that tbe children of
Israel were perve: ted from the tnie religion
by converse witl the rations round about them.
And he cit^ (jrotins dc Jure Belli et Pacis,
lib. 3, cap. 15, par. II, where he says, ' Ca-
• vendum est ne nilnia commixtio vontagium
• adferut infiiTiiis.'
As to tlm singular opinion of infidels being
peri>ctua. enemit's, it is not easy to understand
what my lord Coke means by it ; his words
are tliese: AH infi.lels are in law prrpctui ini-
miei, for between them, as with tin Devil,
whose subjects they are, and the Cliristian,
there is perpetual hostility, and can be no
]ieace ; for as the Apostle says, 2d Corin-
thians, 15, * W hat agreenunt is there of Christ
• with Bi'lial, or what part has the believer with
« the infidel V
It seems by thc:»e words, that it is to be un- id Gratia, The Indians iiave a ri^h\ to trade
dcrstood fd a spiritual discord in resiiect of re-
ligion, and net a temporal between tlie nations :
ibr he says, it is because they are the Devil*s
subjects, and he relies upon the texts of scrip-
ture: and if this peqietual hostility l>c taken
in a political and pro^HT sense, and the law be
80, it deatroya the Itcenoe and privilege of the
here, and we there, and this is a ngbt natural
and human, which tlic Cluistian faith doth nal
alter.
I agree with Mr. Holt, tliat an actof pariia- .
mentmade against the Christian religion k
void ; but I think a charter against natural aal.
civil right is as certainly void.
CT^TE TRIALS, 36 CttA^LES II. 1 684,— 71b E. I Company v. Sdntfys. f39*
^3i«*d in lUis tradfc, and
'• rt.*«lmitia!iU* by tiiecotn-
^n r ; en's nwis HoIk
fjo, I. wore |itinishctl
ik «llilr^|Milir> «.iv. ,,.K !..,_ : ---i ;
aiAiO |i«uiiiliablc% amt nnt ^h mntlcd tiy Uic
i»*law! fttiil Mr. Holi^y^, thut tiii<lu*^
fiikdt U iu Uk« iiiiuini't ug^inst llic stitt^-
iur. Tli«t ivuj» in Ute Star cht&mWr, ant)
»«lkip4 il *5iw r>nf itt ibf errors iur ^^ htch tliat
wt ira> i, 16 *'4r. 1. cap. IU. in
I •kdt Ml I i ti^t tlu! jml^esi oiUitti court
lal aa^rukeit \» ptftibb wUvri* nu faw did
lltampOftftMs; ofinonty liud b<*cfi (itohttjittfl
[if WMiHIWi U^t ibt- statutes 9 K. 3. ca|K 1.
'"** " ^. ., > ^ ,. i,j,| bft^n needless ;
•^very mau iiiighl dis-
laoiiey as lie wtiuld.
^nirteeirs iJie ofleiice
i ID enp'oWiug gi*ea(
J «tail »♦» U more tully appears iu u
report of the saiim ca^L-H, in the
^AwtCMDF a^liJ^ to Popbimi, 14'> and 150,
«lMnllktiatlT tliut a^tineslmU 1h^ puuUbml
iiS^<Miif a irood atttl
- - ■ <....,
^
II St ihe pri-
mv» whicb in
iT to iiigross tu tliorn-
tlicr CL ..x-i.u i . L'N of Indiii, Sec.
Ba4^ tivr cotiiiiiun Uvv v^oidd bave all the
Witliin lUe realrv, it dix^ uol fol •
mm intisl keep atJ other com modi iie«jt
,fc aa trftJ^Hi mU i ut leairt without !»pe-
I kaoir no BlAUN|iolicy or hw for
Ittiiifi
' ^ Holt cotisi J<?,-s furt ic^Ti
ctj* bft¥e not tt n;j;ljt to
tlikrKia, fill h''irft//i.
Tim u it;;iuti8t tlju fonner arg-nrtient
•ilUnf tr^ ''- ^ • * ''■ ' pbiutilFH if * '"TT,
Ivi^ I il Im* tii» Le
(JUrwt««ii oouotnes, witlioat the
''iiippartthii
^^ upun trea-
\ ^luice and ^ar^
Id b«) (jj
; uiid
v>iui them,
i not by tbe
' yy lie pence and
- f liow (his con-
wOiL ih^ilu^t i*f*ims^ iimi iiua imk of
biii subjects sbou^d tttwie thitber, and the rest
should not, or thnt tbe kiutji is or can N* ia
aiiMly with tbcin, as to otie part of U\s sulijectm
(rmnicly tbe Comimiiy.) nod iti comity *vi||i
tJitioi, an trt tlie otiiec ol bis fiabjeciB.
Tbekioy' has, and iti to preseivc^ the high-
ways, l»ut il IK to keep iIkto for tb* pas'4H^*e cif
bioiseU' and his people; not to shut thcnnrii
aijninst any of biii projile at least, except «i tube
He cites tbe staldie 12 Ef,7, cap. 6, where
tbe mercbiuit (ulv«utiircrH imy, tttey had com-
merce with Spain ontl Fortogul, a»d other
places in league utitl atnity wilb the kio^«
No doubt ihey Imd, oud lieyood this \h truly
said in the siime .statute, that of ng:bt they
uughl to have it, which shews tliut tt was not
hy the king^ti grant or licence. And in bke
UKimier tbe de^odant of ri^-lit ought to hn>ve
with the Indians, there beitig no wur betwixt
this realm tuid them.
He cites out of Uol r^ Abridf^mentf f Vt^^
211, a note 0* Rot. Pari. 1 H. 5, nu,41, where
tbe coiunions pray that alt merchants nmy ex*
port lind import to aud frum any place, any
gttodii at their pleasure, paying the customs and
uiher dues, any proclamation i^ot withstanding;
the kint^ answers, that be wdi be advised by
his coimctL
And Mr. Holt takes this to be an acknow-
|edi>ment by iJilui ol the legality of the procla-
mation,
Arnn', It IS not CO, for it was the course then,
to propo«e and pass deckiratory and contirroi
(as weil as other) la« ^, by way of petitions
tbe kiu^ ; and tbotii^h they thought the pr
clam;iiion illej^al, yet il was more proper for
them to endenvonr t«» obtain redrcfw by pfay«T
than contest. But their pptition was a [»eti-
lion of right, and the pruclaTnation (especially
if there was uo war a-foot) was void, bcing^
against tbe cofumou and statute law. And to
cite anil set up Bnr*h a proclamation, is to set up
((^rievaucc to the law: aud yet I take it there
was an extraordinary occasion at that lime.
Hen. 5, having" o<».^sion to lay an tmhartro on
ships, ill order to his proceeding to his greftt
war in Fnince.
He says tliat forcijjjn Inule may be mischie-
vous, it maybe amtisaoce, so the importing
Irish cattle and French goods have been d»-
eiart^l to be by the parliament, and Ibe kiny;'
may resti-ain such eviN,
vdlwjou These acts of parliament were enact-
ing, and they enact it shall be adjudged a
common nniitance. They did not lind and de-
clare it to have been one bt-ffire.
If it had bet'n so, there had been no need of
these acts, and wc know th* reason of thai
clause was io make the m-itter dispensable.
If the iropomn;,^ Ka-st- India commtMlMie* bt
anntsanre, it is w-' i ■ - '"-'hMc, und tbe com*
pttnyeannf»t man tmdc, much le»f
tluit .Ktioii; mil- iUI be iboughtthai
l: in ot tho»rc cuutraoditieii by tho
Ti nuisance, but the bringitigr ift Ilia
ktiiAc by tbe plaintiffa ia aotv
395] STATE TRIALS, 56 Cn arlbs II. 1684^ 7%e Greai Cate ^M^tMfolUi: [396
He inforoK thii wi>h a reason, that there
. may be miichicf from the abundauce of the
jpiportation exctiedin^ oar exportatioo, and re-
wmbliDg it to what is saul 10 Rep. Ul, that
by the commoDL law. the kug ou^ht to luve
uui defend bis realm as ■ well asrtinst the sea
a« against enemies; that it should not be
drowned nor wasted; and as the kin^ may
preFent inundation of water, so he says, lie may
as to trade.
Ansm. This is a sioiilitade in words, but not
as to the nature of thin^p, and if there be any
force in it, it is against Uie pluintifts ; ibr tliere
is not in their charter any limitation, the Com-
pany mav brinpf in as much as tlie^ will, nay,
It seems by their allegation, that this trade in to
be managed most largely by means uf the Com-
|ianv, and therefore thence i;* rather tlie danger
ofthe
it a ^rcat argument to
he glut
Mr. Holt makes
maintain the charter, that it is a necessary re-
gulation of the trade, and that the trade could
ii9t have been settled but by such a Company ;
and says, if It shouUl be laid open, it would ruin
the trade both of the Company and the de-
fendant.
And it is averred in the declaration, that this
trade cannot be managed, but * per hiyusmodi
* Corpus Corporatum.'
Antw, This contradicts M ichelbom^s case,
Ibr that was upon aliceoce granted to a single
merchant to trade to the East Indies ; and it is
kEio\«n that this trade has been managed by
private persons before, and since tlicre was a
Coni)Mny.
Aiid this is to set up convenience or pretence
of cimvcuirncc i^ainst law ; the Ktatutc, which
we have pleaded, snys, that all traile sliali be
open ; the plniiititrs say, it shall be open to
them only, because they can inanajETK it licst.
If other men should say thattliey could ma-
nage it better, the pretence were as fair for
them to exclude the Comuany from the trade.
But I except a^^ainst tnis averment, it is a
frivolous and impossible averment, \w issue can
be takcu upon it, unless issue should be taken
upon a similitude, (viz.) ^ hujusmodi Corpus
* Corporatum.'
If a lioence n ere granted (as it is said to be in
MichcHiorirs case) to (»ne man to trade to the
East ■ IiuUl-s, and he should bring fetich an
action, and aver that the trade could not be
managcil but by jrach an one as he, it wouiil
not be good, and yet as guinl as this is. In nn
action for words/it is nut allowable to allcdgc
that tho tletieadaiit spoke such words, or huyus
iimilia.
Moreover, tho declaration, as it is penned,
rontradicU* itself; for it s:iys, that the trade
cannot be managed but by tlie Company, and
yet charges the ilcfendant that he did inanago a
trade there ; which is not possible, aud it is
penal enough upon the deiendant that he at-
tttmpts to inonago trade where he cannoL
Mr. IIultobiecti» that the statute we pkad,
eiglit not IQ be takieo univerMUy, that the acft.
shall be open to all. mi^nJrr^ .te. thoiiit
would extend to give Ubertj of trade t» the
king's enemies who are merchants.
An$. True it is, neither this, nor any aucb
law e.\teDds further tlian to alien artniet and
. subjects^ there are jura htiU^ as weH as jurm
pacit ; and it is undierstood, that enemies who
are foreigners may he taken aud piMKSceded
against according to martial law ; bat the de-
fendant is a subject, and cannot be an enemy.
He says further, that Ibis statute shoVrid not
extend to this trade, because that hi Edw. 3rd%
time, when it was made, trade was drifvn wilfa
chrir-tians only, and not with inlidels.
If this be* so, it destroys the only aotfaeriiy
he has (vis.) Michelbom's caw, where the only
ground of the opinion is, that there was a liceaei
granted to trade with infidels, in the tiue of IJbl
said Kd. 3.
But this statute must be taken, as. it is pennsd,
universally, and not contined to those ooantrin^
places aiMl parts wliich were then used ;- tlM
statute does not distingoiKb, ^etnbi la MB
' distinguit, ne nos ihstinguimus,' otherwise ■»
man must trade, but ty those few places that hi
can prove were trede<f to before 18 £. S.
He says (as/: n. h, 85.) that the king waf
restrain men, by Ne exeat 'Re^num^ ff9m
going beyoml sea; and cites Davis, 9. b. ibtf
one reason of the king's being ]iAitlelby|ve>
scription to the great custom, was Ibr Usieavs
to merchants to go and carry goods out of ikv
realm.
An$m, It is tme, that hook of Davis dees sif
so, but he cites to prove the opinion, Dyerlfff.
and this statute, 18 E. 3. which we hm
pleaded ; so that that book is oi' no further oc^
than the authorities upon which it is fbnnded do
warrant ; which if we examine, we ihsff find
that in Dyer it is, among^ other things, mad^ a
(juare, in a case i-eferrcd to the judges cAmem-
ing a new imjiosition set by qaeen Mary on
merchandize, whether by common law nMr«
chants were, or mightbe restrained from geinf
out of the kiirjfilom, ^vithont leave of the kiag'
or queen ; to which the judgra give no resshK
tion: which shews, thev thoii^t the liw
was, that there was no such restraint or need ef
leave ; for when judges give no resolution) m
the case of the king, it is a sign that in tMr
opinion the law is against him ; and for the
statute, IB E. S. which we pkad, it is flit
against it.
F. N. B. 85. a. is express, that by i
law, every suhjectmay go out of the 1
ibr merchandise, or travel, or other c
he pleases, without leave, V. Co. pi. Cor. 180L
5 R. 2, cap. 2. llestrains people passing odtp
but itexcents merchants, amloen that stfltols
U repealed. 4 Jacobi^ cap. 1. it is cksr thii! <
the king may restrain his subjeots* fnm gw^^
oui of the realm, by his writ of Ife tx90:^
Reenum, But that writ was onginaiij war ^
the" clergy only, and is properly granted fc
matter of state only : and the^ wuras efit'tiF
* Quam plurima nobUi et Cwnnm wOtmf^]
*jndieialiaibkleni prosequi inteadit.* Onw
indceik ba»besH tUMdfld' t» wpftw » fmmtp
H liye die JuMioB of •e«iul ItfS^ IhiI I lliink
**!
licillicr b ii gmrtsl or muf^rsttl, Hut al^nyK
" r, «im1 gisnle4 upon oaih, made con*
«pedal writ to tt^^trum i^n ub*
ML. H ptiyr«» ilie l«w to W, ihai nil
Mr OBrwant jum nt liberty Ui go.
Aal tbcre was fto iV^r cxcd^ H^ffiuvti
•libHi Ihc dcfc^iMSMil, mt c^une tor anjr » and
■ dMiit k&il liee»y tt»d b« bad gtiikc ngiuusl it,
e aa offiane to tbe kifli^, it wooild
I C<J ' '* '' E- ThAt no subject can
|g riiilf s» without tbc kiii^^'s
Ghfia 199^ ^i JMi nmm am tunke a |jArk
m^al ||||9 lOBg't iicrncc; and 11 H. 7. i:).
litf ikc bxofl^ msy licvnoe, vrbvrr li' uoo kill
jUs*. These i0«i&B6«i ngtiai' not to otsr
«»t Aiofiii nwy sal boiid cwtkmvjthoul lK«
ha^ fmtacK, waf mne thmn nftine forces, or
MM^e bwin, fvliidt «fc /crd^ naiartr,
im ^ 1aa^« i^ajiu? ; lu udi ]l*s% take avmy
l^hm iif Juti iiiiii;* I 5ub|i?cts ; but lb ens be iu>
|Htt^ <iC nmmg^ £afts. «MUi tdunild not ^i^* an
f I ii 1M» wiOabla thcrdo, to imtancr, tbut
^ivft M^ «ity>o«t lioenctf build a bu^MN or
i Wfr, iMMi iodow A ^-dfin or iVrUI,
ky ^rwcfi^a ibe Mvgb tii* bitofielf a.itil
i %
mid m liu
wilb bim cun
iW *imiiiM' jiLii^yuM^ 4UI tbe Compfinv
dd ; Of if not, \\wn Ibere I's
mo csttsi' <'~ .. ' ^Mt.
iimlof lb
k UfWtovit io iiniitilo|(T]*j (H MM'Kj, Mm
1^ mmn^ of ibo Ea«tJmlia trsdc,
« diarurr tben iti
Li*i»w I5AC i%1«hW Ihcr* w«»«ifldi
£ if tb<jf« w»rf,
powibly tt vris cot taken notice of, or |>o«MbTy no
grievance tben &ppciii«d from it ; uDd likolf
uiAt Company wati betti*r «dr»«d« tbaa u^
deM'ouT to restmiu othen from trade.
Besides^ 1 have board a role of tb« Hoi
orCotDiJoioiis cited bMinetiiDeSp bm D«fer
tbi^ Bib c of Conuiiatii cited
authority >ilesB ill that ptiTlhu
Htf ill otbtHsif iUc iiieitibers ^omph :^
gt icT ujict it ^ w li ic b tbeo affected 1 1 . i , ^
d»d plt€«o tAi«y served for : they ii^idt^t^e
not to enumerate all tbc moDopobes, tlut were
or might be, and it is most prudent, in order to
obiaiii redress, Id limit ibeir eompl^mts u» the
present occrisinii.
First, Mr. Holt menlions three itatutesL
S Jiicobi, cap. 6^ tltefe having been a cbarfer
obtained by some mercbabts tor sole trade into
the dominiouB uf Kbain aDd Portugal. Jf
enacted, tlint it shall and maybe hfrtu], lor
subjects to Irwlc ttutber^ uotwithstandificr iH
cburu^ v»r any ft(ber ; »nd tbereupon b*.* iWers,
iliat the parbomcot takes^ the ebart4tr w ba
yf(xvd, and tbarelbre enact that thu trade ahali
lie laUi opoDi
Ans3\ There it no juat ground for tbiailK
ference*
Finiit, It were a strain beyond the piaiott^
own foundation, for tbut it relatcfl to a trade
Ui Spriin or Fottugalf Mrbieh are Chriit«aii
countries*
s. . -..JK T^- ;- "•! Idi'of the act sets forth
r ►y Ui* patent at com*
111 , ..„ subjects ovigbl lo enjoy
i-' JK'tif tit of peace and tree tnide •
^^ iM he subfeetB of England woidtl
vorse condition than those of 8cetlaiwl
loH : thnt it W3J attended wilb the im-
i)t9, mariners and ma-
L he price of their com-
, iiuil Liiburiciijg tbi^jftii '^.
l!y, TbeHrti;tUs it a ooii»mon traffic,
,n.ii dues oij. 'Jibe lawful, bat
that there sli to tra«le there , ii^
J' b »i»H mm uv.nm'T an wii»i accttttoraed : so
itthcM^tdid Dot make the eharter illegal,
i,jii found it so, as }--<'s -" iTinotatton agamat
wliuti'* ut*ed AuA '
Alio be meutioh^ ... lute of 3lonopoUes,
tt Jaeobi, cap, 3, whereai be observes, there
is .1 proviso to isave tlie Compante«( or ^ocietice
banU. And the ataltile 14 €aro1j 3,
, M'hich in Ib'e preatuble declare the
puiiHk;^ in of stock into the Eaal- India Com-
funy to be lor public gfood.
AnsTo. Tbut lu9t tttatute indeed in the pre*
i the Koiiae I an^bb^ says, it U for nubile goodj but ii in the*
' ' ^ " ' of tljc Company; and the sumc
Hi that ditei^ noblenK*n» gt-iitle-
l^it Wm. p. n%^
iiji-rij uim nilier personi "I
to trade or tntn-bundize, did j
and enacts, th.it ibcy ^tr'''
br* reck Of n'd trail ^*r^, jin
SCT
Vfitlmi the proraof ^1 Jao. aWve-
ntit bred
there>
'ic nrckoneil
3B9] STATE TRIAI^ S6 Charles IL 16$4*— TOe Grad &*f of Monopoiks: [iC
(Tilhit
But f §!Vfe thb funth«r iinswer ctmoetmns^
proviso: t1 * * * " I'roridecl
t iiad it a iu i . tiedftreci
♦^ u .r.,. .i^., ,j, ..^., v^urij^ therein
I not in anv ^nsc exlend, or l*f
;'uf' dty «! l»nclon, Vc- or to
if 'societies of merchants
I r] , * rt*f!te«l for the niRioteuaiKrei
t or iinkriog' of aoy trade, or mer-
biit that the Mme, auil their libctties*
ilcK^r pow«re «nd immtmitie»%hatl be. And
ilifioe mmxh fwce asd effert, as tUcy were
riiretlie makia^ of thi« act, attd cd'none
«Mhcf ; &iiy ihifiji^ before in Ihisac^t to the ccn-
in any wiv ■' ■ U\\^,
t]rk% th' .1 sAfing ; and
: rn. ji, u u. 1 -, I hat there was
<;idja Comjinny then in beiD^;
' it^fl had as faronrahle mx
1 t-r, a* th«rv had of Man-
or the ol&er there men-
V would have saved it by particular
IS they did those, ivhieh would hare
eii MHue countenance to such a charter.
Hecondly, AiJmittinfir il ?avcd generally or
aiticukrly by the iirmiso, that does not make
t better ; the proviso onlv says, it i»hall con-
' fi ■ Tch force and ellect/ as it was before
I ; of the act, and none other: Le.
^Jt injt^vjui-tanding the Unly of the act, if it
fiTe a monopoly and void before, il slitiit re-
am HO, and it it Kcr*» gtM^ before, it shall
t «o tiotwithfitandini^ tlie (jrori^K
If it Ii*» ajJtetU to what |turpose the profi§o
, it iH»nitwered clenrly ihns ; the
[>r iiig; an iidditional pcimlty of treble
duiiiiifft-^ 'Mn\ double costs ag^iiinst anv [>ersoti,
tlikt hhonld, after foity dtt^'S, after the end of
hat seaifiion of parliament^ hinder, grieYe, dii-
iirb ordiM^iiet any jaii^on, or atiy ways tetze,
ttlach, dii,umn» tuite, carry awayor dftain his
^oodj, by occasion or pretext of any mono-
*|M>!y, or of aoy such eoiintiti^fcion, tjruni, licence,
powei, faculty, lettci-s patents, \:c.
Now the pro^ i.so appuinted ili.it uothiiit; in
the act shall extend to any s^wicty or company
i>f mcrchaiilii ; it sa\cji pi reoob that i^hal)
Ifiiudcr, (;frievc, disturb or fli-squtt^t others by
ocx'a.'iion or pnlext of such a v>cii;'iy or coni-
tmuy frurn that [tcnalty ; so thfit the plainlilTH
fave tills advantug^c from tht- provis'» (if thf^y
jiiv at all u ithiu it), that thi^y ijhah not be liabfe
10 the dcfendunt's treble damages and donhlc.
ccMfts for brinj^ng this prei^nt suit «t^iui»l hTtik.
0 Car Jones 231- Mounson lersus T/i«ler,
woi a case concerning an office granti^d by
biters patent^ % Jacobi, for sole makin>^ all
bills, itifbrmationa and Ic'ttcrs missive in thr
council of York, Now thtr next proviso ia 1J143
statute docs save officers in tlit? same manner
.-w this proviso docs socictit^ or com panics of
mcrch&nts. It was adjgdg'cd, that tlioufh
this grant of this office were savo«l by the pro-
%10O, yd it wa§ stilt a monopoly, and void ; it
being nnreasonable that one perion should have
the makin^r of all bills, ^c which is proper
work lor couusel or attoinifiiy uhI IbtU (m Cft»c
[ of crow bit?) both ptrtieB sbotild be* oblim)
dtsctose thetr eviilciiee to tbmt persrm ; Mit (
reason of this piraiiao, tkhi ^rmtlee ahorild 1
be liable to the traUe damatrp^ and
c(»sts ; the prortao nves us ai;;uri«>t that
tuec^ but (kieaoot estdUiab agnitist the coniiai
Uw.
B^de«, tbif proviso does not at all
to tlm charter j it only concerns inch as \
then in bcin^, and say a, they fthail contip^
in Huch ft*rcr, as they were before the maktu
of that statute. But this Oomruny that is no
plaintiff was made not loo^ aii»c«, viz,
cJiHTter 13 of this king.
Mr Molt citcH seven nreoedenls of 1
by queen Eliz. of aole traoinf to PCffl
pans.
To which ( aosirer, That ih© more there 1
of this kindf the slrong>ertbe ar|rurr'^'^ *^ <
us ; for tlie greater occasion tiajs 1
nistered to bring actions or ioformat f. J
nature, bat none was ever brought ; and
reuson w hy none has been bron^i b, becaua
none coum be u[#on this score.
The claustits in this charter, for A^Tfeifi
ship and floods, and tmpr I ^
well be cited tor precedein
it will not be denied, that at ier<
clauses are void : it has been t
clauses in charters, which %vill i*«n n'lm vrmaefr
they serve lor a Jiourjsb, and m tcrrvroff^ like
ihepenalty of hOOOl. in a subjv?' »
Also thcai^ ciutrters were t ami
they w'ere bottomed upon son 1 : _ Hiry
of a trade or apas^j^fe; and in iniih ihstii
the only gooil fouudation U|Kfn which ^urti ^
charter can be granted, Godb. 354» wbett «
new invention or discovery has br*fn rnJi'l*',*^
h niakinir by any person, by his ski
and perhaps peril of his life, th*^
remunerate him with such a -
must be only tor a reasonable ni
and no further by the common I
the statute of moiiopolies/2l J
that reasctnable tipue to foiirte^
I take it that tiie first ^nt n
to |»er$nns for sole irauie to i
w us uiioit sugveation aud coil^
bein<r nrst trat^rs there, and th.i
yens, which is bmt* sjdcc expired
a »i*jem?<, nadc to ii;c Kast*t»4dit^ w
to other Europeans many hundred yem-^^s
*' linpiLTci' cAtrcmos ciirritMercator ad ladoa
" IVr Mare/' . Hot.
I wliall mentioti two or three mcbt of parbt*
incnl, i^hich do counteDaiioe and encKHiiaga
i\vt\ ti2do by any |H»rsnii to the East-lmlifs.
ir raroh 1, cap. 51* It is nuidc a preniti'
mre to hinder any iiersona from importing «»1^
fMtrc ; the defendant did import saJi-petre 11*
this ship, and so do all ships that come irom die
East- Indies ; it is their usual ballast
12 Caroli 2, rap. IB, para^. 3» (confira»e4
and re-enacted 13 Car. 2, mp. 14,) forbids tl»i
bringing in of any goo^ of Africa, Asia, «
Amencaymnd in any vessel, but lucb as MvBg
IDt] STATE TRIALS, 9S Charles 11.
iil^|iei4|pW ef Kii4:liiift^ if^mnd. tVnlesi and
tarf |iuiKr. UV mmticMia El
itim, fl«n> wan juj;t occuv
L« arl (■Bitt'^ ^^rnier ciiarter in
hang in if , 1^ > . s^) oud ivi thi^y
wdM* tf llir3 lt<^ Lhtjti|(lit die trvde reOraiQetl
IiUm €.^<no|May. Hut they «eeni to ailuw,
An lhfpi> yio<W n>^ rtei) iriatiy Esfkif-
IfAor tnsE f'tc^v, uf tliG CompsOJiy
99 «i^i a« cap. 11, It is enarMi
itfaltmxiu I - - r f! agiiall
Mlur cansi -^sel uf
a<<
vimnMiicCv
»
I ' '1
iWmd*iiip Ml _ s
^mummtm lo mny tureigii {Kirt, hare ami re-
an»Ui iImm' u%^n ]iiT>p(T u^ and b^jc^t one
laaSipvt: Mu tt shall build any
I uC two . ,>c hundred Urns
ii il: liavt oue Urcniieth part
; rti a •liall be ^M to bin nia-
tii kui ri jtockIa or mere band t^e, lut
!• tat|tortod or imported on tbe laid shi}>
I \ to ho built
I demand not
U' y ; but the
n- V ,' 'tiy, or of a
to be irniii tbe king^ ; but allows and
tJj"it ull 5uij| ev( vy [kereon or persons
^■f laiii' deckti^ rmd tnuke
^ •^ilpc i^^n |)ttrt^ unci en-
|^u|4^ u>, with a rt'Hurd ; to
mvif^i I .idaui'ft libip he wlthixi
tidal lbrtli^% %ue4l.
Jui cmaioli^ T>*^ iv^ iijijiciiiMs u iuwjird atid
• jpaMtaMmA for the iiatiie ihio^.
I wii BBtaliliab thijc [h^m^> ^^ •+>' t^fn authori-
QiMit not ^ a pitvot« ke dormattt
but ttic uidtniK i ; ^ _ jdiicniH,'atid
ifihaoiii. «^iich>
liMi the Mu9C4>?v Coin-
My «raa c4«aiut«^ b^^ U'twr% |intrtit, aiij rh^rt^iii
AIMMK, lf> restniin all otUei^ tVmu inuliti^
**■ a ttlit •ftiaby, nx hrrr; Inji notv^ iiltstand-
^tfaal, tHlMsr ji«.*«iplc diil ii-H<l4> MiMli^r: and
li ELx. an a< it wit»
■Mb IccsttMg tbr cbart r |>er-
^ Ad l»iui« tbit^ ; and
eiiaria Ui ^iand,
«lll«r p4fflotj ^M. ^vbii:b
ifea jiiilginciit i»! I, that
tlii«art tii« rr%U^i..- = ,.„ ,. , ^ . id.
ooucentad Uia Canary Cum*
2t Rot 403. Banco
1"V*
'ike reirtraint and
K •* Ui Npastt bnmgbt for
lW aUiit, tii^i ikiiaidatti jugliiaaii by
Tirtiie of the cliarter, andjud^metit wa* i^iveM
for the plaimiffjirfAinNt the <:hainL'r> by tbe uoi*
tbrni opiuiori uTthc whole court.
That case tudced wds uoL the same ivitli
tlii^^ as to the ttmnner ; but as lo tbe nutter
aail substance it ii> the same.
1 shall conchide with an observatiuo oftny
lord Coke, Jiir, Co. :il, thai acta of paHia-
luent a^ainKtihe freedom of inercbaudi^t* it«rer
hold lung*.
If thai he the fate of acts of parliament,
\vluch are laws, certainly a charter made lo
such purpose, oug^ht not lo bi? allowed.
Tlie Second Point,
r take the law to be dixur with P. N. B. 85. a.
that every subject tnay yo out of the kr • -
tor luercbundize as be pTca^est and \\\)
pleaae^, withoot askinj^ leave ol tlie Li.^. ,.i.^
shall not be punished for it.
But DOW takmg^ it by adiiii&*)ion, flint pei'MM
are retitraine<l, aud that the defentlant uug^ht
out to have ti-aded to tlie £a»t- iDdics wiihoiit
licence ; yet 1 coneeiie this action upon tbe
case can ne%^er be tnaintaiuecL
In maintena ce ol' it, Mr Holt says, that
this privilege of trade granted jo the Cvnn|>any
is a fraucluse ; aud if anollier viobtes iu the
grantee may have an action at the case tofaiust
that person', as t2'i H 6, 14, und Jl If. 4, 4T.
where the kiny: has granted a fair or niarkii ;
if a mtin »et up anfither fair <ir nmrk^l to the
daiija^* of the loiiner, he t^at ha^ the grmt
KliktU iiuvean notion in the case.
I Qbi*cr>e, that in the arj^iuns*^ of th<* first
IKiioi, Mr. Holt all alou^ cnHed this u lieenee,
wlurh now (to flupitorl this tiecond point) he
would have a tiranchtie; buttbene ti\n tbuii^
differ greatly. A franchise (utiderirtood pto-
perly) iS an neroditament, a ihin^ of interest,
mid a&»ipmldc and trunsfermble ; but n liccnr*
is only tUiaxaiio Juris^ a dis|)ensation with the
taw, a privilet/e to certain persons to do an act
with impunity . When the kin^^ grant^t a mar-
ket, be creates or g'rauts a re^l tbini^; but
ulien he ^hes liberty to trade, lip di>es not
CJf ate or ^rant a real thing^, but only di^^charf^^at
or preveuui a t>eoaUy intiictable for trading
without such leave.
When the kiny^ creates or grants a inarket to
any person, if he makes a ||^rant of another
market to another person, to the dami^fe oi' tl»«
firstf it will be void, becaui^e tlic grantee hatt a
fraochiNe thatisa real interest; ami thcffratited
may have an action of the case a^innt liim
that Kets up a market under pretenctM»t i>urh
a grants as well as he may ai^inwt a man
that sets up a market without any prrtencv ol'
^rant.
But if the kinij license any pernon to tnid«,
he toiiy Qotwitli>»laiidin(j^ license others t0O|
idthoutrb that be to the damage of tlio iirst ;
for be has not conveyed any interest to tha
first, that should binder him tront diapcna^ng
with otheh!.
There i^ no bottom for this aclioti to stand
upon ; thers art but two thiofpi la tha diartar
2D
bmnr J
49Sj STATETRIALS»3bCHAatK6]I. l6S4^^The Great Cate of Mdwap$lln: {m
towards \i ; iinit, a licence to tlic Company
to trade ; tteconcily a prohibition and rcslraini
to otbei-s, u hereby die company is to have the
Hole trade.
It* thfi king had only granted a liconce to the
Company to trade to the £ast- Indies; the
company could not tliereupon have an action
asain^t the defendant for trading tUithur. Now
when the king, in tlie same charter, adds a
restraint and prohibition to the defendant and
all other subjects; this Mr. IIoU would have
to hi^ no more than the law said before ; but
if it be moie» this does not add any real interest
to the company, or better entitle them to an
action.
8appose it to be an offence, and punishable
for the defendant to trade to the East-Indies
without the king's licence ; the king dispenses
not follow that; the charter appoints the pe*
nalty to be foHeiture of ship and goods, when-
of one luUf to the king ; but no action on tkm
case is given, or meant, wherein the carriage
may be more or less, and wliorein the king ia
excluded from any share.
If an art of [larliament prohibit under for-
feiture of ship and goods, the one half to the
king, tlic otlier to the party, that must be fbU
lowed, tliere shall never be an action on the
case ; ibr the common-law shuts it up with
a strong negative, and says, there ahall be no
other penalty. And in all cases of statutes,
by-laws anil charters, the method ofpuush-
ment prescribed must be obserred.
To obviate this the plaintiffs have been eao-
telous, and have misrecited the charter in their
declaration ; they, to let in a pretence for their
to the plaiJitiflii, so that they may trade there action, recite the prohibition or restraint,
freely; the defendant trades tuere witliout -*— ^*^- - --'^-^ _-i ?••.-_ _■._.
licence, this may (according Ui that supposition) .
subject him to penalty at the suit of the king,
but this gives no title to levy money upon
the defendant for trading without licence, there
is no privity, no cause of action.
The resolution at the cud of the case of
monopolies, 1 1. Hep. m» b. is a clear autho-
rity,to this purpose: Curds were prohibited by
act of parliament to be imported ; ajid the
micen grants to Darcy tlinl he should have
the sole importation ut cards, uoh ubstunle that
statute; and daiing tliat grant, another man |
imported cards, against \thoni Darcy brouifht j
an action on the ease for it, and therein allcdged
too tliat he had been at ^'reat cliarifc t(» make i
and provide cards sufiicit'nt. But resnl\ r<l tli.it
tlu* actiou would not lit' ; hut ibr puiusliint;
the |Kirty, the remi^dv nhich the suihite up-
pointed against iuipoiinj*; must be folldwed. '
it is insisted upon, tiiut iho ^luintiffs liave > lay a jieiiiiy
been at ffreat chaa^e to nrry on litis trail*;, kin;;:; lja>V
and by others intcrlopint;- lUey sliuuld lose the '
fruits of it. I
llie defendant has u< much to say , that he '
has been at prrent cliarp-, ami by iestraiu!ii*jr '
and prasecutiu^hiui lie should Ih :i Ios«>r. i
But I say, IhLsis * d:iu)iium s«ni: iirjuria.' In '
the mentioned books of 22 II. 0, \\. and till, j
4,4?. it is held, tlK'.t the ocfioii on the cum',
would not lie, wliicli v.as brought by a si'hooU
majjti>r(or two), for that \u. had an ancient;
school ill a town, am! one Mt up uiiotlier near, I
«> tliat wliereas liefortf he had two shilling's u i
quarter for a boy, now lie rould havo but imic '
akiillinp: : so for oiTv-tino^ a riull, lliut Kithdi-a;vb j
custom from a foriUer iui!l, w* action lies. |
la every action on the c:.kr, tliei'e w.usl be ;
' damnum U injuiia,' there laust be a uioutjf ^
totlie|)orty plaintiH*; it is no ui*i)n<j: tu tiM.* >
plaintiffs here that uuoihur offinids a^^ainst that
law, which is di^peused with to tlicui.
Jf the detendact's trailiaj* without tliekiuj^'fi
leave be an offence against the king, it is
puoishaWe by the kmf still, and that way of
punishment mu6t be ioUowed, if there is to be
i*iy; besides, all the foundaskm the plaintiffs
fhottliiitaiidupoBiB thecbulfft but they do
stou there, as if the prohibition were absolnte
and general ; whereas it is tub modoy under ft
special penalty of forfeiture.-
And this api^ears uiioo Oyer, and therefbrs
for tlvis variance, judgment ou|i;ht to be Ibr
the defendant, if there were nothmg else m the
case.
But waving this concerning the form of the
suit, I insist ii|K)n the main matter.
There is a natural necessity that CFeiy man
that will live must eat^ and tlience a neoeMty
and obligation to labour ; and there is a pro-
perty in tliis meant* of livelihood as well as in
life.
The kin^f's power and prerogative is to es-
tablish and |ii-c:U'rvp this in all his suhjecta.
I'rutlir is n:n* of iiit> honest est and joslest
SDKS f>f iodi!^!n , a:v.! i> iii.nc especially proper
tor it It islaii'l.
Tlic kin^ oan:ii)L proiiibtt mcrchandiie, nor
iiii(:c>.:ti.)n u]}on it ; tlierefere our
i'i.vti\ed ttnuKige and poundage
fruui tho i^rauts of {uUiiamenU: wnereaa if
tlie\ hnil suoli :i poixr (as the plaintiffs coon-
m:1 Kpi:ak ol) oMfi .iii iuide, they might by the
nicaiisot'li.ar, ii.,^- iiiadc an undeniable title
to such a rrveiiiK. without the consent of the
Louis .ii:d (Vir..i:twiiS.
Kestiiin ii,«;; vi tnide (though hut for fttiBW
orplae. ; •, „i,;. of the *^reat things which hat
be^ii nl\\ay.< ics^-rved to, and exercised by an-
thunty of ]»arliament, as we fmd almost in*
LViirv ^iv;SsIoI!<..
Thi^ winch is now lieFore your lordship, is At
Utiulf'st iiuir.opoly that has been attemfited. It
inoi.O|ioii^( s Africa, Asia, and America, at IcMl
01 the &(:u:h ; it devours above half the trad^of
ih? nation, the trade of linnens from Him-
bur^^h, i'lauders, and Holland; sillu ftm
Italy and Turky, and when the prohibition ex-
pires, from France ; and affects our mannft^
turesat home, upon all which the livelibood «f
manv thousands depends.
It is against the common law and mnny tSi*
prefts statutes.
No man was ever punished, in anTem0t,fe
using foreign trade; no,notinthe»ar-CkHK
h^r, whioh ttteadt the prmgntive molt. M
q SrTATfi TRIALS, 35 Charus 11. iSU.—Th E. L Company r. Smwfy*. [404
riij >'uir
loiui,' titkotigli there
had preoetlents, if
4 has been brought,
<fiw» that just dis-
U>rttHhipfif Ibat H m\\
Attfl I (V»y your J ungfineBt fbr Hie
n
SDtlaTOn GKNERIL FINCU,
(AFtl^WARM E\flL or NOTTLNOUAM.)
AaiK> l>Ott. 1681. Banco Hfi^ps,
Sasi- India Cotnpaoy v. Ttiomas Satidys.
Jilft. Wilhint* Mr. Solicitor- Genera I,
ajrgue that ause io-day ?
Sadtciiar GcJuruL VW, Kir.
Kr. Jost. If'ilAinf. Mr. PuUexI'cn, dn you
Vfue am tit« otber side ?
Mr. Poilcrftn, I da, Sir.
Mi.Juat* HifAtiu Th«ti, ^oillefneo, )«i hiro
to the bar.
vr GtiicnaL My lord, this is an
the caiie» brought by the East-
Uii^GiNlipaiiy agiiiiibiHfttidys; h herein tbey
ilCtli tkat the king, reciting former litter»
granted lo thii cimfmny to incui |»oratc
^nml a cborter to such paiticukur men,
iis Ibeni a c9r{H»mt ion Vjf the nKine of
*Tbe gt«tnior» ^c. Jioii did ik^i^ut to them the
ipte trade id a.U tbr parts tipon the fxiaxts of
AWt a, ami America, f^tjdi tlie Cape of
luu Ajid
uit lo this
ipaiiy aud buccx^bu;^ Um; bulc* tmdc ; nud
led ii Ihem, that no other of the king's
ihoidd trade within those limits, and
\y probihit nW his j»iit))«_"cts, to trade
not being oi^ the Conipiniy, m ithont n
inoce from thetn. Then they Muy, tbat Mr.
iMidys« bein^ one of the kind's siibjeeiii, did
laist Vftm him to trade Mrilhui the Uinitv of
thaie kttera pstents, iQ ivil, at ^h:\:.m*u^n, not
batillg- a iiceiioe from tlieir f ' i Qiiy
Qlhar atitbotity to do it. And i ;.>y to
their dajiiaoe of looo/.
Mr. l^tidyB to tills, alter he prayed Oyer of
die laMtira paientK, nhicli lUe net torih in fine
I, ideada the stAtote of 18 E. :L whieh
tAat the nea bhall i>e open, nod all mer-
go with their merchandize, where
To this plea we have *hninirrcd.
lliia Record, the questions will be thetic
Firat, Wheliier or no the patent to the
Biil-ljidk Company, with a prohibitiiiu lo all
itecti»mA^withiii their Umm, thereat aet
, be«giood patent !" Tl *» '^^
Uy, Whetbei, u': '
tkM aotton wHIht , _ '^
% but lionet m th«s Company » or whether li
pss iooh an interest to the Company with
Ircence, a* will entitle them to an actioti
ag^intit tony ihai shull inti nde or incroach upon
their trade?
Fir«t, My lord, I am to prove thai thiserraot
is good ; and here these considerfttbils will fail
in.
First, Whether the kiii«c had jwwer at com^
nion law to have madesoch a grunt?
Secondly, IVbelhcr that i>o\ver be an^ way*
abrid^yeil by any af*t »»f pai hameat, at H is much
ioiisted upon iTy the other side ?
Anm. First, That tht " '«eh a power
at f3onimon bw, I com «, for the3c
reasons :
Frr«t, BeefttiKe no snhjki at the common law
had a rigirt lo trade wiili infidels, no nrn- to go
thither, without lictiace from the kiog first had
and olitaitif»d.
!4i;!eontli vs No snrfi trade can be ^ahltsh^
without prtHM^T. r*t ir.--»iM'S, imd no such treaties
cmi l»e inudfi • , withtint licence fi-oiB
the kin^ to ;u. If therefore thii
patent does not restrain any natural liberty or
right that the 9uliject had, but ts Introduciive of
a new one, they liad not before ; it will not h\l
out to t>e within thede^niiioo of a monopoly, in
which it iti one essentinl pai t that it re&tnkiiii
peo^k from that hberty they had befo»^.
^ow that no sohjett' had a n|*ht at common
law to trade with iulidels^ or go int« an intldol
*-ouiilry, without heeuee from the Urtig, will lie
evident thus. And,
First, It will be ircr^T^"^'^^'*'-^^*'^" '"♦>«♦'•' we
enter iifKin that qnet^ioti i ^f
all ri^hl In "rmnd to Iru ,_ : _ 111-
tiated ; i is ptniOt
Ftrvt, I r in no trade, bat what de-
pends wjx»ri the good -will and pleasure of the
foreign prince with whom it is, \vh ether he will
admit it or no ; that h pretty cltar*
8eoi*udly, This may be restrained by a tdtti!
prohibition' of any commerce with that prince
or nation, by the king here.
Thirdly, Thougjli every man now and mcr*
chants always were at liherly to gn atjroad
uithnut licence^ yel the ! - - - ?- .-.-».«..^ %ny
man h) the writ Ae tjh i^
out ot the kingdom ; an J — . . ,. , mg
any particular cause why, or u Hedging any
mntler thni is irjiveraablc and triable with thi^
king. And
Fourthly and liastly. If any foreign prince,
upon eotiel tiding £4 ny fengue or treaty with thi
king, ahouhl rcstmui trntlc lo ain' nuiober of
personn, or any particular qunlirtcntion of man*
ner ot'flriHfrtripg in it ; 1 see iif^t how any mrm
ean pretend to a righl, to act coiorary to fhaf»
in breach of sorh ft lengue or treaty uittde with
the king by rucIi a toreign prince.
Then^ we say finlhcr, by the statute of S and
i Jaeobi, which opens the rr "«* ^" >>'»'iin and
FottugaJ , th at dens ^how pin : :vt trade
was before iiicloLcd ; and it ij ow that
the incloffureof rt was illc<^al, but gives a right
that was restrained In'tore: and yet I aui
from affirming that the subject hait no rig tit
that I
t
I
t
I
that
407] STATE TRIALS^ 56 Chablbs IL 1684.— 71l« Great OmrfMmi0pJk$i [MS
with iofidds wUboni lieeaoe fimn the!
for tbejr are looked upon as enemiciy naimjr
in a spiritual sense, as they are ot a csoBtnij
faith and religion, but ihty are so Irailid m
law ; and the resolutions ofthe law are sooh as
we may sec in Cahin's case, and the 19 H. 8*
wbioli is a book the^ cited and was quoted hen
liefore, upon tlie nrst argument of this caae ;
where it is held, that a Pagan, though he be
beaten, cnniiot hare or maintain any pctionat
all, because he is perpeluiu inimieus: so an
alien enemy can neither maintain a real orpcT«
sonol action, as it \h said in the 1st Inst. 129, B.
so a Jewess, thou;;h bom here, and marrying
a converted Jew, shall not be endowed ; ana
so is the same book 3ii, so that they are looked
upon n«> more than common alie'ns ; for we
see that tlioiigh they are boi^ here, yet they
have not the capacities so much as ol* Deu*
zens, for tlicy shall not be endowed, as deni-
zens may . And though my lord Coke, by the
way, says, in that book, no ahen can be en*
dowed: yet I find in the parliament rolls a pe-
tition ofthe Commons, it is in 8 H. 5. ni« 16,
they pray that female aliens may be endowed;
and the king's answer is, let it be as it is desired.
trade, though it has been objected that this
tlogs it, and makes it as none ; and therefore,
tliey held it absolutely necessary to disaffirm
that power and prerogative, which the law,
for the public good, dues repose in the king,
and that upon reasons that will not hold, nor
are so fit to be urged in decency : for 1 take it,
the possibility ofthe abuse of power, is no ob-
jecuon against that power. For by this argii-
nent, though the king has a power and pre-
rogative by law to restrain suljticts from going
beyond the si a, by a A> Exetit Regnum^ no,
lav tlicy, he cann«>t ; for then he inav restrain
all his suhjefUs Irom going ont of the kingdom,
and so imprison ami hini!er every one from
gohig out of the nation. It iA the s^me argn-
guUKMit with this, that they ur^:e the king
cbiiius aprcn>gati\c to restrain such trade upon
occasion ; they say this argument cannot hold,
for by this rule he may restrain all commerce
ami trade whatvoever : so that this way of ar-
guing doi*s strike at all |M)wer, and I need give
no other n^ason for it, for there can be no power
at all, which is not accomi>anicd with some
trust ; and there is no trust, but it possibly
(morally speaking) may be broken. 8o that
this is no argument against the right of the j But I mention that only by the by, for it ia oot
subject to trade on ihv uiie sidi\nor agpiinst the | at^ll relating to our question, but for that the
preroguiive of the king on the other, in whom ■ other resolufiou goes to it, that an infidel it al«
tlic l:iw has roposol a trust to regulate and . ways to be treated as an enemy,
quality trade. | But, my lord, further, that all infideb «•
But, my lord, in this case the question is ■ likewise aliens andeaemiea, in reepoct of thdr
not of so huge an extent, nor so ^neral as tl)is | properties which they gain here^ it is to ha
is ; but «uily here it is a question, how that | i^n^thered from what I find in Rot. finimi SO
righi stands wiih resi»ectio iiitidels, and that . H. d, m. 5, the king releases a debt thai was
is the qiK*sti<Mi before your lordship. : owing to a Jew ; and in the same roll, 49 H. &•
And 1 cannot hut ob>erve, in ir.y entrance ■ Rot. finium, there are divers pardons ot'ddbli
into the qiusuou, that uitkss the law had once ' owing to Jews, some in recompenee for nr-
boen held clear in this matter, this could nothave i vice done, and others in corspassioB ef the
come to he an\ suhjivt of debate now, for no ' poor, that they have drawn in tobeeagaged
such trai^c astiiis. wuld e\er have been gained -■ for great sum's to them,
to the nation; fur none eiMiUl have ventured iiiM)n I liot. Pari. 13 E. l,m. 4, a Jew died, aai
so ha/at'd us ;«u eutoi prize, or so chargeable a i the king granted away his goods, and hia wi-
projtot us this was, it' it had be<Mi anv doubt , dow roiTeemed them for 1000/. and the kiag
whether tlii»se that ruu no such ailteimire granted to the Jewess, that he would notdii-
should be admitted to reap the tir»t fruits : charge any debu, that were owing to her-
of it. I Thi^^ shews their properties were all at the
So that this qut'stiou as it terds to overthrow king's mercy ; ami sometimes the king gnnied
tliisii-ado. if ihe law ho taken w. he as tliey Ucence to them, and gs«e them leave lo aiaigB
woiil.l haie it, so it o^erthmivs i\w Turky trade theu* debts. Rot. Pail. ;) £. 1, m. 6, which le-
too. whuh stands u|k>u the saiut fo(i:r*lation, cites that it was provided by kinif H. 3. thttDO
with rt>>|HVt to the pnihiSiiion hvli^tUT^ patents Jtrw should si^ll his ^oods v.itliout lioeaer.
as iliis dm-^ ; f«.»r ilie qutstion is not, iijM>n how '"* * '
y.isy tr-iKilu |>r'.iIv3:o>aiv t-.^ b€ot»i.>i:>ed. as
ii is o-nte'««.tl ilu* tiiius are easier in tbe
Tji-k\ l\>«ii;mii\,ihjn in the Ea-ii-ln^lia I'om-
].ii\\ ; but V lux;.i: an\ tern^s ;\i ..II are re*(ui-
Mii- : It ja\ t<.:iu> ^au Iv ;uuhimx1 uti:Hi it. iheu
lli» M -irv C^wxl ; if ;:oat'. t:-i!i;a«&! will over-
ly ..» * ru* V .rkv t .j-;.!, a:ii :.\. iIa :: . -. i-r ihe
q.U'-r.-.'. xUv si;li.* . ;s t'.-i* w •""*« nj^ut i!i*.\ j»:c»-
tru I s*i PKiiii 10 >:l:^! u,\ v. .;i b i^e iiit <. i.auM:
t.* Viji\ ihvi:; u< >i u^..i>;: \i\^ fv: a r:::i;i. a>
ibey vai. .i. ,;);u:u«( lAe «er\ iutemt i-f ihe na-
liiv.. Hi: I to ii-ii::;» ;o iurV-giiUiiiu ;
The kiiivr grants a hccuce to Judct> Nostra to
s«ll a debt of ^0/. that uasowint? him frnm the
bishop of Bath an«l \Veli»; and douUiessttia
reuson of that law in IK-n. 3d *s time, was, ihil
liu^ kin^ might prevent any mischief, that
!i: ti^lMxt iipcHi an i:r.!ic ia««l
K<\^^vii his subic(-i& 2i«il th'^e inb4rks:
this jnpa-s I'iainlv bv roi.sj'Ifnng. that by
I'^c ;tnoioiii law ctihe :^ad. no Jew could iohs-
bit any wbtre whhxd the kingdom, biK whMS
by itbti>m they wtre prnuittod to dwell ; aid
«o i> \i»n. Cbus. 1 E. !, m. 7. b dune ;
tiad 20ue and iqhahil««i at \\i
thev were remoTed thcace, and the j
The siihj«>n caa Lite ao such tight le tnde tou iheieaaea wh^. AhuMi^ dec
I
STATE TRIALS, 36CwAitBS II. l684 — Tkt E. /. Cmpmtjf v, Sandtf$. [4 10
Thfy Ind particular justicefi assigtied OTcr
, 10 llicni, to determine their causes, aud titat
y»u aee Rat Clau*. 49 H, 3. ra. 4, ibe kmg
coOTlHuia two juslioes ad Cuttod. Jud^rorttm^
m4 girof ihem powrr to determine ih^ir pkaM
iftllie places where they were accustomed to
Aad Iberc is in Rot. Pari. 13 E, 1, m. 7, a
Wjr ivnMrkBble record to tbi^ purpose, Rex
My lonf, I find another record like thii in
lb* patent rolls of thai year; for we sec what
Gtf» lJi«law took, that Christians should not l>e
ctreiim vented by the Jews; and thp go?em-
nwnt had an eye npon thein^ that they should
Milt have «»rnmtirce one with another ; tliat re*
c«igt)i/4Uice9 should be enteral in the presence
M Chri£tiaiis« That record is tlius, Ilex om-
I C^e aee a man here, that deals with a Jew,
4M blip's tbm^ fif him without Uccncc, and
tli9 king ^an(b that he wouhl not trouble
bifn, or proceed agaiinit him by law for that
By the ancietit law it appears, that if a
CKrwtian married to a Jew, it was felony, iind
the pitrty off^ndrng was to be burnt \ eo is the
3*11 ^ and there my lord C<)kc cites
Kkt iiitbority in it.
V\\ni\ A\ this it appears, that Infidels have
noT%!ktro trade and li-affic here, and mtrelv
tJmi m» ftuhject has a riybt lo trade wi»li
tlieiA in fheir countrv ; for the reMruint cf-r*
tiinliP mitft b4» mutual. And, iny lord, for
ik» I mfiH femeniber you uf a caie that has
bceu h.ft.f^ #',»*..l in thin casse, and that is
ef in Bm^vnktWy where my
il the law tu b*f a» we say,
ftod tiiat he iiatb !$een a hcence in Edw. 3({*s
time ; ofid that be la^s was for the safety of
rHi^nn.
And simlv^ftty lonli it i» upon f ome mich
ftoii«Kl6 89 t\ti»^ that the law provider that no
npcomonitnicate person s\\vM bring an action,
8«M r (irf>//, because no person must
c»n 1 theni ; iheretWe, they caunot
sft?ti^ 1 A* ^ ntor to any person. Then if the
l»w be cautions for the safety of relig'inn, as to
restrain c«nj verse in our country' •, ^ /or/ it/nit
BiftV ri'Mliain the sidrjects lihc'rty of Iradinjr in
it) mriili 1 i'o»i!itr\\ T^lien^they must be under
tti» .^'piace; and the inconveniencies
in f \se arc s^rre much gi eater than in
tlh- rHher,
Yn€ we see in Cal%ia*$ case, if the kinj; con-
fiefs win infidel cnunlry, itieir laws actu filly
««*e till the kin^ \^%\^ them new ones. Hut
*iw other%f i*e of a Cliristiitn rounlry, for there
lie law» remain ttlL the king; vfi plesuseil to alter
ihef rcas»on, my lord, ia this, the kin^^n
tire in makitit^ h agues and trnce«^ if?
iHrjTirfi^ and iiniimitt'd as the &ubjr^cts
I^^Mltt lra«l«: ; and yd in the c^se nf intideU
tttt li restrained, a*! to mmt. s^ort of leagues
tttt A Clirislian prince cannot make with them,
Ibc,. For fbat yoy may see io the 4th last. 155,
where my lord Coke says that the law of Eng^*
land b so, that the king cannot make ♦ Foedus
< mutui anxilii aut amicitiee/ with an infidel
prince. And there he reckons up four sort* of
ieacnes ; three of which he says may be had
with infidels, that is, * Foedits "Paci^, Ffedus
" Coiji^ratulatiouis, et Foedas Commercii ;* but
* Fo?duB mutui Auxihi,' he says, by law is not
allowable : and herein these leagues arc
grounded upon the law of God.
Tliereforc my lord, the law surely doc« ii<>t
jjfire the subject an unlimited fi^eedom to tradc«
but it must depend upon soclji cautions and se-
cuiHtj^ a5 nothing but auch leagues can provide
for; which leagues I am sure none but the
kins{- is capable of making.
This then, one would think, were enough !•
clear our patent from that objection, that it is a
monopoly. But there arc utlier ihinga, that
make it yet more e**ident it is not so. Aa firsti
in all the complaints that bare been of mono-
polies, this patent naj* nerer counted to be oae
among them, nor thought to be illegal ; if il
eter had been thought so, the statute of 21
Jacobi, cap. 3, which is a statute made for re-
gulating of trade, would never have been made.
In ihe next place, 1 say either the first pateut
for Ihlh trade was a monopolvt or this is none :
the first was none, not only for the rcasona X
isravc before, but because it wa* a new trade.
Patents for new inveutions are not made gtXNl
by Ihe statute of Si of king^ James, hut left at
they were before ; only ihey are restrainc*! to
a number of years, an3 were always good, be-
caufic they wcic for the encouragement of trade,
and of useful inventions to increase thpm.
A fortiori theiefoi^ in this case, what im, of.
much greater consequence to the nation 'is a
|»oint of tradi% thau wiy Ittilc slight inTention of
a particuTar thing, must be tvllowcd to be good ;
then 1 say, sure if the first patent be not a mo^
nopiily, then neither can this patent he a mo-
nopoly ; for there is no law that hath declared
how long such a trade as this is may be in-
closed, as the statute of 21 kiug James haa tet
limits for, as new inventions.
And agam, tftis company is for the ad van-
tage and benefit of the natinn, which a mono*
poly can never be : and that it is for the benefit
of the tiatioii, npjteurs by the statute of the lith
&*'llus king, cap. 24, which recites it to be of
! great advantage to the public, and for the en-
couragement of the public trade and navigation .
Here then, my lord, is both the judgment of
the parliament concerning companieb of tlii^
kind, ami an encouragement of tlib particular
company by the whole parliament.
And agam, they art; taken notice of in ano-
ther fiiaiutej made in the 20ih of this king^
ch, 1, where Ihey arc taxed 20$. for every 100/.
capital stock in ihe company.
Another rea5M)u is this» bee ausc of the abso-
lute necessity of a cnnipany to manage this
irafle, not onfy in rc!^pect of the Endii^s them-
selves, but also in respect of other foreign na-
tions, who are rivals to us in this trade, and
are ready to take sU advantages against ii&
411J STATE TRIALSbd6 Charles IL i6S4^nB<fnaiCam0/Mmiif9lim:[/a%
but at four Uium in tbe ^ear» and mmA Hiy
here but forty clays ata time ; aa my lord Caka
obterrea in his comment upon that fitaitute» and
cites the Mirror of Justice for it. AaA if tbia
law pro?et any thin§^ relating to thia queition,
it isy that before tliat act, merchaata could not
go out of the kingdom, and still they may be
prohibited publicly ; which, though my lord
Coke says roust be by act of parliament, vet ha
cites no law for that opinion ; and who sub-
Tuission, the word public doth not neoeasarily
about it. But this part of the case is much
more fit to be discoursed of by merchants and
statesmen, than lawyers.
Yet thus far the law falls in to consider this
matter, as they are a corporation under stipu-
lations andleagiiies with other countries for the
carrying op of their traile ; and so are in the
nature almost of foreign plaotaiions, umler a
regulated and Christian govcroment within
themselves, whereby those mischieis are pre-
Tcnted, that would* have fallen upon an un-
limited and unregulated trade with infidels,
that are enemies to our religion and nation ;
which the law, as I hare already shewn, takes
80 much care to prevent.
For oiher considerations, whether this trade
be driven to the full extent of it, or may be
more advantageous to be enlarged, as it is
proper here to be discoursed of in a court of
law, 80 the appUcatina fur that must be made
elsewhere ; Tor i do not kuow any law tliat
hath made the defendant a reformer among us.
My lord^ in tbe next place, the next ques-
tion 18, whether this prerogative of the king is
abridged, or restrainini by any act of parlia-
ment, as is insisted on by the defendant's
counsel ? I think not. For,
First, In general, the chief trade of this na-
tion consistMl anciently most in wool, wool- fell
and leather, and with our neighbouring nations
only i and yet.
Secondly, Even that trade was restrained in
the exercise of it ; for none must buy and sell,
but he must do it at the staple, as appears by
8 Ed. 3, chap. 9, that abrogates tlie staple,
and afterwards it was erected again. And
then in the
Third place, there was no such trade as this
or anv other ever established with infidels in
those days, and so there was no occasion for
such a law to restrain them.
The best rule therefore to interpret this act
of parliament, will be to apply the remedy to
the inconvenience and miscnief that was before
it. If then there was no such inconvenience
as this complained of, the restriction of tbe
trade with infidels ; tl)f>n all may reasonably
conclude and insist upon it, there was no such
rrmedy as tbe layin;^ (\\n,n of a trade, as tliey
aIlc«lge,inteii(Ud to be introclucrd. But if we
consider the ai't iisf If, we shall sec some parti-
cular reason for the niakiii;; of it, either for
tbe taking off some clogs, that were ui>on the
traile then in use, or the providing some re-
medies which were introduced to obviate the
present inconveniences and mischiefs.
First then, for Magna (Uiarta, which hath
been cited chap. 30. t!iat (fives liberty to mer-
chants, * Quod nisi pnhlicc antea prohibit!
* fixerint, habeaitt salvuin rt securum conduc-
* tum exire de Anglia et venire in Angliam, et
^ morari et ire per Augliam, tam per terram
* ^uam per aquam, ad emendum et vendendum
« line omnibus malis tolnetis, ^c. praeterquam
* in tonpore ffuerr».'
TUf ndped merchant-strangers in this |uur-
"*^*~ir^tannse bdbrc that they oould coma
import that it should be by act of partiamtBt.
My k>rd, that law tliat codmb nearest in woida
to this case here before you, is that of 1 £.3,
which is pleaded by tbe defendant, tliat ia part
of the act, the hitter clause of it, that the psa
be open to all manner of merchants, .la ftm
with their merchandize whither they ploaae.
Tills is part of that law ; but, my kwd, the
meaning of tliis law is quite and clear anather
thing, as 1 sliall shew with submisaion aasfc
plainly : and I will b^ leave, my lord, a lit|)a
to introduce it, by givmg you a ikistory of thia
law, how it comes to be maile ; tor it is but a
short one, and it is only the last daoae of it
that is pleaded by the delendant
By the statute of the 11th of Edw. 3, it wii
made felony to transport wool, and this tof
lord Coke observes in his comment npsn
Magna Charta, upon chap. 20, King Edw. S,
took advantage of it, for exacting money af
the merchants, fur dispenaationa with the lanri
and for licences for transpofiiBg ef weaL
Hereupon several complainta were wade in the
parliament ; and particularly in tlie 17th Jraar
of Edw. 3, Rot Par. nu: S8, the CeHBMM
complain, that the grant of 40«. upon n wtA
of wool made by the merchanta only, wai nsl
to bind the Commons, and therefore pray it
may be revoked. The king answered, this
cannot tend to charge Uie Commona ; far that
there was set a certain price upon wool in ereiy
county, which the king willed should aland |
and that all wool sold under that price ahoold
be forfeited in the hands of the buyer.
This was in 17 E. 3, and this matter, af
lord, among other things, was repreeented la
the same parliament, by the same merchanlli
by way otailvioe, as a thing fit, 17 E. 3^ !■
dorso uu. 68, of tlic parliament- ndls of thift
year,
siimmo!
of wools, ^ - , _
times to come as "they say, and that waa
abuse<l ; they pray liberty to buy woob as
freely as other mercbandi7.es, aa thev eM
agree between buyer and seller ; aud tnat al
in<lictnients and proceedings coiitraiy to tfail
law might be stayed ; and further they aid
their advice, that the king wouhl ordain th»
staple in some place in Ejiglandj rather thai
beyond the seas.
I'hen comes the IB E. 3, Rot. ParL no. Uk
among other petitions of the Comnaoae, ihMt
are these which refer to the first part of tl|e iik
of pariiament : that the pricea aet upon theee<
of woob in every county, which vau mm%%
I8J STATE TRULS, 36CtiA]tLcs II. i6ai.-*tlf £* /. Company t. Sdniyn, [414
ibati ftdranta^ of the fcDrile,
lit be ousteiif and that rvery aac may ouy
^ fti be can ft^e with the tetlef, tuid
rsecQSed Ibr doiog^ the e<mtrarf .
i*y lar*l, explAiu^ Ihe fir?,t part of that
riiameni ; that the ordiiiauces hefore
ttfla€ made upon takiog sorts of wool«
fTos imprinted in Rastall, and all the
-books ; (for the roll i^, * sur oris/) and
I, and that every J«an» a« well straiDger
reii» may bcncrfbrth buy woul as he can
witii tho S4il!er, as they were woQt to do
tiie sard ordiuanrtii.
N^w, my lord, you shjill <!*^€ the latter part
fihe act, which h thai they pleud- among' the
* on* r»f th«* Com moos in the said roll, theie
That whereas
Flanders, that
»|»u' ii»r \v«ir»i snr>iiia i>c held at Bnigiis ;'
tittle of which grants all matitier of mer-
J th«f ' * '- i-..-.i",^ Genoese, Cutalo-
oiaitti Spa>^ rs, who used to buy
"^ " .1, andearry thero out
it ! s€ii, vvhtTC tfjey would^
p »i.i^i, , "I iiioreasj^ of the price of
W0ol, tnLiher commt; : yet the towns of Bruges,
Ipf"-^, hnvr of \iii€ ordained, that
fe, be sold to
MP said country
10 the dainagf!
lU and of all
pnalty i i»n<i iLiirttore tbey pray
^ antwl hy the 1;'
buy wool^ ii ibev were m
^w?itah<»nN* iu.\^...i «.. ^u
r *' ^ they may
; uud that
T^. . i.ij to make
Thfn thev pray
' ^ .s Wei's may W put
r of a patent under
- is done, in which
thin tery statute of 18 E. 3. tii tcrmmit
pHntcd. And this platrdy shews, that
bring to lie ojieu> and merchants to
pm wH*rv»er the^* pUmse, was only in answer
1 and rejyr- nndtorc-
itf ; iha/tl (ary here,
'' " .i»'ce»*-
was
■'■^f ill tirirj^r^. isiiM jrijN i'^ Itkc*
!'> the adilce and petitions of
re the 17th E. 3, That the king
1 a sjtaple sonaewhere in Eng-
pai'ts ne} ond the seas.
I, for the rest of the acta of parlia*
fiave been cited on tli'^ otber^ide, I
apd no act of parliament bath taken it away.
Then I say, the quc^ttton is, ^hdhtr an action
lies for the compAoy ; tbat h, whether it tie a
bare licence, or coupled with an intercs|(
And as to that poinr^ 1 aball be very short,
to nic it setfni^ to be no question ai alL For*
Fir^t, thry are at a great cb arge luid^xp^iet
to support this trade ^ and therefore surely tli«jr
ou^lit to profit hy it,
Sei.^oudly, Thcty are looked tipon by the
parliament to bare an interest iu ttiis tratle^ or
elsie they had nt:ver been tarred lo high as
twenty sVdhnjCTs for every 100/* in their stock.
Then if they ha?e an interest in the trade, this
tradinjr of urn defendant is ati encroachineikt
upon Uiat interest, and th«fn here ia ' daninum
et issLJuria;* which will entitle them to aa acr
tion.
For so it 1$ in other things : a fatr» in &omc
sense, i<t but a licence to hold a market 9i
such a time, in such a place ; hut because of
the profit that tends to that hberty^ aud Uic
charge ihat [k*» nnrtv ]< r.t In L, i iTdi.'' nf if, an
action does li> iWtfp
another fair, i ^
tlie first grant.
In the commnn case
vnitionv an &<
without hcenc^
by the gTBul, ami the cluiiijC lis ?
that invents, i« at, S*> that! thi I
with submission, we have hcie aiJ ai
this trade ; and an interest, I aay, ^ a
licence, well founded upon thckbi- i itikfrs
patent; which the king had power to
by prerogative at tH" * ""^I'mn law j and
^■. ' . :. ii-U had
of pntcTit« for new iA"
^* iu>€M»UOU
•stconveved
power not restraui:
Aiwl therefore I hit
for the Plaintiff,
ct of parliameaL
yonc Jfldgmez^
Mh. POLLEXFEN, (AfrruwABus Lo»i> Cniir
JcsTicr) •.
DeTerm. Pasch. Anno Hegni Ilegis Caroli
8ecundi xxxvi. Die Lunic xxi. Aprths,
Anno Dom. 1684» Banco Regis. The
Bast- India Company against Thntnaa
Sandys.
Mr, PiiUixfen, Nay it pkaae your lan^
ship, the Governor and Coaipaoy of iti«rob«iili
r-nter upon tin
)^m\v at ihe tir>T
and
,;r ia
;, Lud \Li\' few
: iOn now belore
> w\\\ appear plainly
ijcm.
* The following ia a fulWr re[>ort of tb*
opening of tike Argnwent of Mr, PoUexfen, aa
but I <nvcn in the MH. of Owen Wynne, in the AU
they j Houls^ Library, aud already alluded to in tbt
""*' ' Nou to p. an.
For JUaodys a^aioyt tlie East- India Coiu^ t
pany, in an Action on the Caj;«i whereti
tlie'PetilioufTs declared,
That -- ^ -' ' f:iag Ivy Uii Idteri pto-
theCoiui.oi V '. ■ . M^fiia iridiii|jy.to tfce Bait
Indies have been long a corporatioui and «a*
I
I
opened; andtbecMetipoa the recoid
thu:
These plaintiffi briDg tiietr «ctiei» i _
the defenauil, and do dmarei tiialtiieidiDg by
415] STATE TRIALS, dffCHABLBtIL leH^neCrttiCtmffMgmfan: [416
of London, trading to the East-Iodies, tbcr are
l^amtiffs, and Tnomas Sandys is die defend-
ant. If yoor lordship please I will open a
little more of the record than has yet been
joyed diverse liberties and pririleges by grants
from queen E. and king Jac.
That the king was informed that diFerse
ioconvenienops and disorders were committed
to the prejudice of the C'Ompany.
That at the Petition of the Company the
lung grants, ratifies, and confirms, to the Qo*
Tenior and Company of Merchants of London
trading to tlic East-tndics,
That they should for ercr be a body po-
lice by the name of ' (iubernatoris et Sori(*tatis
* Menalor' de London, in (irieiitOem Tndiam
* negotiant', ac eos p<T nonien GubernatoriH oi
* Sooetat. Mercator. in Oriental. Indiam ne-
* gotiant : unum corpus corporatimi et poli-
* ticum in facto et nomine reaUtcr in perpiMuuni
* fedt, ordinavit, constituit, stahilivi(, et <li;cla-
* raTit per literas patentes illas.* With power
to pm^ase, sue and be sued, by the name of
Oi^emor and Society of Merchants of T^ondon.
And that they and all those tliat then
were, or should lie of the Company, and all
Iheir sons, at the a^ e of twenty -one years or
more, and all their apprentic(*!i, factors, and
•enruits, who should be employed by the Com-
pany in the said trade to the East- Indies be-
yond the seas, miffht traffic and use the trade
of merchandising by sea, by the passages and
ways discovered to the East- Indies beyond the
Cape de Bona Speranza unto the Streiehts of
M«^11an. In such order, manner and form,
freedom and condition, as from time to time,
It any public assembly or court holdcn by or
for the said Governor and Coin|»any, by of be-
twixt tiiem of the said Company or the greatest
part of them present at sucn assembly or court
shall be limited or a^eed, and not otberi^isc,
any diversity of religion notwithstanding, so
as the trade be not with any Christian prince
or state in league with our prince, who siiall
not accept of their commerce, but refused to
accept the same.
And that the Company, their factors, and
servanlH and^assignccs, in the trade of iner
chandise, shall for ever have the whole and
sole trade and traffic, and the whole freedom,
use, and privilege of trading and merchandising
to and from the East- Indies, in such manner
as before mentioned : and that the East- Indies,
or isles and places thereof, shall not bi^ used
or haunte<l by any of the king's subjects against
the true intent of the letters patents.
And bv the same letters patents, the king
/commanded all his subjects tliat none of them
ahould visit, freuuent, or trade in the East- In-
dies, unless witn the licence and agreement
with the Company first had, under their com-
mon seal.
That by virtue of this patent, the plaintiffs
hnve been and still are a oorporaiion trading to
Ihm Baat-Indies widi t)ie inhabitants thereof;
wko, at thtt tHM of thi Mlm patfDts granted.
weoe not nor yet are Christians, nor tolnects of
an^ Christian prince or state, but infidttL ene-
mies, and ad?eraaiies of the Christian faith ;
and that their trade hath been to the profit of
the whole kingdom, and. increase of tM king*0
customs ; that this trade cannot be canied on
but by a body politic. And that from the
making the letters patents, they have bad and
ou^ht to have the sole trade there. That the
defeiidani Sandys being a subject of thekingX
hut no uieiiilier of the Company, nor being
son, factor, apprentice, servant or aaaBgnce.
afler the lettcr-i patents passed the 19Ui ot
January, 34 R*. nunc, to the Baat-Indieai be-
yond the Cape de Bona Speranza, and thisnde
the Straits of Magellan, in certain ulacei called.
Atheon, Macklapaton and Porto Novo, with a
ship called the Expectation, hath traded and
merchandised, and divers wares in the mid iUn
to these places transported, there baigiincdaoi
sold, and other mercnandises there bougbt, and
into tliis kingdom imported, without the liooBCt
and against the will of the Company. ' In
* eon mi pricjudicium et dcpaupecationein nn^
* nifcstam,' and against the term of the let-
ters patents * ad damnum' of the Com-
pan\' 1,000/.
The defendant demands Oyer of the Let-
ters Patents, which are set forth in A«e ncria.
Aud thereby, atWr naming the govenNr, the
twenty four, and constituting a general eourt
of assembly, and the powers of eledioipa of
tlicir officers, that the king doth grants aa in
the Declaration, so far as there mentioneJ.
But then thev leave out
*Mn the clause of grant of sole trade.'* At
the end thereof, they have omittc^d thia,
*' An<l that the said Governor audCoinpeny,
and every particular, and sc\eral person tMl
now is, or hereafter shall be of the CompanVf
shall have full and free liberty to lioenoe, ■
form aforesaid, to aud from the said Easl-
Indics, according to the orders, ordinance, and
agreements, hereafter to be made at their pdb>
lie court.**
On the recital of the clause prohibiting
others to trade wiili<mt licence, under the
inon seal, they leave out a part of thai a
which is this,
** Upon pain tluit every such person Alt
shall trade to and from Uic East-UMfies inflir
the forfeiture of his merchandize he shaO hriig
into the king's dominions, contrary to the pnN
port of this charter, which the Company ihiB.
lind in the East -Indies where they traffic, anf
also of the ships wherein the merchindiae MB.
transported, one half to the king, the otbv f0
the Company, and imprisonment of the iF^
fender."
Then fo!k>w8 a clause or gruit, that te
Coihpany tor any considention or bearfUlli
bo taken to their own me, may Brmil 1
U'7] STATE TRIALS, 36 Chahles IL
I yskVml^ to tke idUi yesr t>t bis reim)
I ^rmot tu tiiam the ho\e tvnde^ between lue
of Good Hope and the streiali^ of Ma-
in die £a3t-In<tie« : and did also grant
' locrchatU^ stranger, or other « to trade to
"ft' '-idies,
T jiq- jn'ftnta to the Company, tbat
• ^ about tlie consent of the
V :ce to any ti> or from these
i Thea there it iL clait^ thai none of the
CoEuuai>y «thal1 bare a ^ote in tbe General As-
&efob(y, ufil^ras be bare 5lX>/. in tlie stock ^
Aii^ Oyer» the defeoilant pleads tije statute
ld,£* 3. c, « wbereb^^ it is enacted , that the
tea« shall be open for all inerchanK ii> ^i:<A<)
Wiih iheir mcrcbaodtie wbererer il
tad that, by nrtue thereof^ Jiil inn) i^
^-lUumtion alleged, * prout ed bene Jicmt.'
TVe PlaintilT demurs.
Before I come to state tbe points and ques*
( pptm whicb tbe question truly depends^
to shew wbut are not tbe points or
m in this Case.
1. ll is not the point or question, wbeUier
Ch« kinii:, by law, can restrain any ol bi£ sub-
jectSi to Ko out of tbe hingdam.
** : the king iiiay do so, and tbis without
liou of Christ ian or luhdel country, &c«
[ m»M£^ as occasion may be,
$. It b not tbe question, whether tlie king,
ifty law, can restrain any of tbe kind's subjects
] fttueh n country or places
It tcray t»e done upon any particular occasioo^
I »ic»r '. . ■ r ''l:i,gue.
I h y-'ice to argue, that tbe king can
to you and your successors for ever, a
; tradic lo such a county or place, excluding
I other his people, excfpt with leave or li-
Because be can restrain this or tliat sub-
)flet» lliefefore he can gi'ant a sole trade to the
fbintiff, excluiiting all others but you and such
IS vvu licence for ever :
Because he can upon particiilar ot^asion^ of
r or plague^ restrain or prohibit any subjects
Dgo or trade to wxxcU a city or couulry :
That wlien tliere is neither war nor plague,
kking &bould ^ant a sole trade to ariy par-
* itier bodies politio or na-
l others for ever.
"Ctui iiiiA riv uy ihe law alone?
IttluBibiiiidation will warratit it, though ic
" te tills be with I oti dels, and upon tbut
[ «on>e ditfereuce tnia^ined betwixt an
I and a Chritttian country :
remctubcr. your reason ur foundation
ttt difltinguj«h or moke a dilfetence.
For,
]f hec4i)ie the king both power to retitrain
flr prohibit subjects lo go out of the king-dom,
yt by occasion of war or plague, ail bi* ^ub-
j«Gla from trading to such a city or country t
8u»ce tills power (you must agree) extends,
II wdl ioChritUiuu u Infulels, citv orcouutry,
gruu
Vmk
l68i.^7%f E. I. drnpoAff v. Sanies, [4^9
unto tljeint ^hat tbey» and nobtniy else, should ■
come thither^ nor trade there; f>'^f' *^ v d«» '
say, the defendant did come thii >li4
trade ; and that this is to the pbiiiu ^..i^^e.
This deicudaot has prayed Oyer of tbe let-
ters |»atent ; and tbete are some' things that are
not mentioned in tlie declaration i but not l>eing
npon the record, and appearing upon tbeOyer^
1 crave leave to open them, that I may make
use of theiu in the discourse I ain to make ;
and 1 desire your lordship would please to take
notice of them.
In the letters patent, when they cbme to the
prohibition and re^itraint^ the prohibition and
restraint is in this manner, which they have
left out in their declarntiim. The letters pa-
tent do prohibit tbe trading without a licence^
n|KJn pain that etery sudi person that thall
trade lo or from the East-Indies, iilial. ituMu-
the forfeiture of hia raercbandizt,
the ship ; one raoictv to tlie king, li
moiety to tbe flast-fudia Company.
And then tberefollows another chuse, which
is omitted also out of the declaration ; and that
is a cluuse of ^rant to the company, that for
any couiddcratiun of benefit to theii' own us^^
ihey may grant licence to strangers or otbersi
to trade to ant) from tbe East- Indies.
And then there h another clause (bat ifi
omitted aUo, and that is tliis, that tbe kba^
grants to tbe company, that tlie king will mA
wilhout consent of tlie companyj give lioenGO
t<» any persons besides the company to trade
thither*
the granting of dole trade to one subject or
body pobtic^ and rest rain inj^ all others^ is tbe
same, whether it be to Cbrwtiun or Intidd> city
or country i
And wlien you cite ^tat. 3 Jac. 6, that ebacts
tbe king's subjects shall freely trade to Spain
or Portugal, notwithstanding the dinrter vi In*
corporation granted to som^ merdiants, and
the prohibitions in those chart<*rs :
And from thence argue, that because there
were prohibitions or restrahits by Charters as
to tbose countries which were Christian, there-
fore such ft sole trade tu an Infidel country » re^.
straining others, is well granted :
\ ou must have it admitted, that such a grant
to these countriei9 is good and legal, or else yod
argue from that w Inch you grant not to be le-
gal, to prove another hke grant legal.
Or at leai»t by the same ai^uments and r^*
sons maintain such a grant of !%ole trade to 1^
good, whether made to Cbriitian or IiiJidel^s
country.
If then not being the point or question la
tbb Case,
\V bether the king can lawfully restrain hia
subjects to trade to a particular country or
place, whether Christian or Infidel
Tbe questions plainly and shortly are :
1. ^\lietlier tlie grant of sole trade io th4
Plaintiff be g<K)d by grant or not P
3. Supposing tbut ii should be, whether theil
this action be inaiutaiuable or not ? ^u.
2E
I
419] STATE TRIALS, 36 Charles 11. l684.-*-7%e (h^ai Case ofManopoKes : [420
And there is likewise another clause which
I wonid take notice of, that nobody of the
Company should hare a voteinthedompanr,
unlpHs he have a stock of 500/.
These clauses nowheihrr in the letters pa-
tent, and the letters natcmt huing set forth tipoii
the record, they are become parts of the caM^-.
The deiendaut lias jdeaded the statute of lo
£. 3. and thereupon there is a demurrer.
Bfy lord, the questions thai are in the cause
arc only these two :
First, Whether or no this ^"anl of the sc»Ic
trade to the plamtiffs, be a g-ood grant or not i*
And next.
Secondly, Supposing it should be a ^od
pant, whether or no the plaintiffs can main-
tain this action, as now it is broo^t ?
My lord, in the arsrumont of this case dircrs
things bare b<K*n said in which I i>hall diifer
from the other side ; but only take notice how
iarthey may be of force in point of argtinunt,
to make the questions that arc in the case to
turn, as to the law, one way or other.
My terd, it is no question hut that the kin^j,
hy law, can restrnfn any of his suhjerts from
gfoinir out of the kingdom ; for the kin^ hath
a particular interest in the s('rvic«'s of his sub-
jects ; and therefore it is most rr'asonal)le and an
undoubted rule, I think, in the law, that the
]nnG^ may restrain any particnlar subjects ' pro
' hie et hunc,' as the kiii^ takes it to be most
necessary and conTeiiiuot for his seiTice to
restrain.
Next, my lord, Tdo not deny, but think it also
to Ik? a law, Tliat tlie kiutr niaj^ lestruiu all his
Kulijocts from a trade to such a particular
country or city, iipou sdur* reasons or occn-
nions ; as in tiuus <>f war, and times of phig-uc,
itiat I reckon by law inny be done very well.
1]ut, my lord, that is not the question in our
case ; for the question in our case is a questir)n
concerning a sole trade granted to a particular
person, or brnly politic, {which is hut one pelli-
cular person in consideralionof law) with a re-
straint upon, und cxrludini;' all his other sub-
jects. Now from >\h:vt has been granU-d ol-
ready, to argue that the king may grant sueli a
sole tnuli', is no tMmserjiience at ull from tin se
piHsitious tii'it have l>ce!i uirned, t. c. from the
authority and powiT tiie tviiuj; h:ui to restrain
Iiissulijects tVoui going out of the kingdom, or
to iviti'uin them from traiiiiig in such a place,
For,
First, As to the pow( r the king has by law
to restrain his subjects from g'-iiig out of the
kingdom ; though by law his po\< er b<> m:' h
particular men, ur a corporation : that must
needs he further than e%'er any thing I hate
heard yet to be law, or could find any footsteps
of.
So that I think tlicn; arc no inferences can be
flrawn from these things, that can coiiclade
any thing as to its particular |ioint that now
we are upon, i. f. That the king tan grant a
sole trade to any particular pereon and boily
politic, and their successors forever; and re-
strain and exclude ail his other subjects from
that traile. Illy lonl, that will not be, I think,
a conse<{nencc that can be dra\m fi*om any of
the positions that I liaie laid down.
And, my lonl, further 1 would ohserre this iii
the arming of this case, That when they lay
<loxvii this as a generjl position. That the' king
can restrain his subjects ; there is no distinc-
tion, nor is there any foundation in law for it,
betwixt going to an infideJ country, or {<mf
to a christian country. For it is as undoahlea,
the king iiuiy r«>(train any of his subjects, as
tl»e kinc's plrasiire shall bt*, or as tliiTe shaU
be war or plague, and such other occasions as
m.iy require it, from going into a christiaB
country, as well as he may from coing into ih
infidel one ; and therc(i)re if the argument
hare weight in it in this point, it hath weigbtcs
well to affect christian countries, and the wbolt
tnide abroad with them, as infidel countries,
and trading with them.
And tiiere is no diflerence at all from this
reason or foundation, that can be inferred, is 1
can make.
Ne.\t, luy lord, when they argue andvnke
use of the statute of S Jac. Cap. 6.Nrlnch
enurts. That the king*s subjects shall fredy
trade to Spain anil Portugal, notwithstttding
the chartei-s of incorporation granted to sum*
merchants, ami the prohibitions m those char-
ters : If they will say that those charters fif re-
straint were lawfully granted, then they do
argue for h power in the king to restrain trade
even to christian countries ; which is a tiling;
under favour, that never was yet atlinned, as 1
remember, but rather the contrary admitted t
and if they say, those charters ' that
granted for restniint of trade to Spain and ]
tugal were not lawful, because they ' ___
christian countiies, then the statute makes imh
tliing for them : for sure it is no argnmeol,
that itccars'^ an unlawful clianer was granteip
tlt'Tefore another unlawful charter may be
iriantiil ; or t>i:rause that was void, thercfiire
the other should not be void ; no, rather the
j cimtrary.
yet first o^'all it is not a powiu* univiirsal t-i lo- \ >ly Ion!, tli'sn things I have taken notice o(
strain all his pi'oplc, but to r4>stri\iu this or that 1 1 ('c;tiu>e thrv are matti.'rs that have been msis^
man lor his particular s(.r\ i:'c, for this or tluit ' ed on in tlie'aigunient on the other side ; and I
particular time. IJut ta makr a univc rsn! ro- ] '■■:>;iM lay wlijt is not necessary n«t of thd
litraint, tluit none shall «y > oni hut ynu .1. S or; >• o. And I now come to the great point of
you uurh a body politi '. will go *•> rv^ :•.*, ^Ilo.I : t''ii>* v^'^^y and which indeed is a great point
liirther, th:<n ever it has been bef'^rj, or c:\n b. n tl:<' r.»pse<pi*^nce of it.
cnnccived . Fi !-st, Whether the grant of sole trade to tiii
Next, my lord, Tliat hecjirjse the king cai . .:)w!»tifl*s, he a gooil grant or not?
milain trade in time of wnr, or in tini^ei j A ndlhuipbly conceive, such a grant of a stie
fkgue,' that therefore he can restrain all hi«- j ^^"ade to any partitMihir (icrsoh, or body polttc.
people, and for evcrj cxce[»t i^uch andvacU j withaajUaiattoallotUcTSyisagaiiist-tDelairai
llii I aliim •nilcaiirQtir to (irove fmu) ^food
I. fu
»
Ii^ rninrii.iit Ijw ♦.•i.L. ;^ fi'^ti and
ua- tJinl U»c
, . Inst, lai,
et lion iri iiiun La |»nvaluiit
iroitt * luuvcrtenduiu ; iiii-
iittiurtt iiUoa inliibeiu
TWr nntt hrMik, mv lord, \% Fiub. Nat* Br.
fc. r" ' ' * N«l«f, Tliat by ilie
' D* i>erY luait jtmv at l^is
\tu\ the
' liircil
, diur tl»ev
: but ihis
I 5 rt^fct I'
It
4tlsslt
<tcvt ^icruoiUs by ih^ statute of
, ..i.- - ^ [ '♦' vt to Itin-
•t icj^ jt llmt
•That evciv ottif may at' his
^ ' an'J cile?s F. ^.
^¥,4.1 try mail lUJiy at
re ^ ic ri^iJtti lor inerctiau-
tvm^iif vutioui dctiiaiiiilng lioent^
' ^" ' ; and tUus
II Ittvv ; aiul
tniHe nnd mcrcliundlse to
or IxkK [joiitic^
iitf gucli I rude.
M^ 1 ijist lilt cotumon
thai, I thitik f
, tior ediail I ju^ti
>' iiM**€ that.
•ort of iticf'chiindize
u^ r.^for tlu^biiyintr
;i. ■ ^ lUJikfr* sbnuld
•.ii^kc ia Mi OiUt-h A ton ^ 4uul i ti-
11 MilUttir \fx Any oiUlts* J 1 IV as
I ^ ^ju^^cJ tut iBgroiiiuitj;, upou aa iufiir-
;*aji)r of merchimts shall buy u ji
8|»atn, or Portti^l, ar ilic Cmitkries^ or otber
town or plftcc, li»r thrive years tv come ; thit, 1
thiuk, i\ uuld l>c au ing'rik^iog, niul Uie coii-
f my Imd, lo prtjve that sok trade
i'i _, ;Xi tlmt il»e uattire of tlrt: ibiug^
uniMsj^cak; *gr whosoever h««s the sole trade
oflMiym^aud sdlin^ id buch msoiI of cvitti-
iiiodity, til whosoever hoii thencilii traduio any
{titi'ticidur ruuutr^ ur pl{icc% hiis ihcrcliy the
Nule iut^f<K»Mj)|jr, and suit; iKiViug^ofall llie eoiii^
inodjtit^s of that pluce ; so likewUu hiis he the
sukhtiyin^; itud all ihc f»iM»jde iliat haic to
de;il ntmut tlif^eomtuodltu s thai aic tu he vended
aud vtriled in that ccmulry or iilucc, arc at hii
^ViU and (iJeaHure^ and ih* rchy he iiuikc^ all
those his onn^ and he niiikci» nhat [mc^ hii
(dearies, and orders and dispoM'^ oftiiviii. both
aii 10 value and every thiii^^ tke, as hU own.
.And thereby, my loxl^ I take, it must be in-
grossing; aud every uiuiiopnlr^itiy n[ buyuuf
an<l aeDing, or of trade, i^ ;. tint
that only ingrosfiiiug ii^ by \iku ^ fmieni
and contracts between pariicuLu uilu. uiitong
one another, widjoui llje king's authority or
be]|i of bis letters patent ; but riiont^polizing
»« mgro!Miing mider colour of uutlK-ras , by
help of those letters patent th^ii ereutc- tht^ui;
fur the €aniie<[uenee of it ruu&t bf^ that ti*ey
would BoJl at their own pnees, uplI thereby
exact n)ion the king's suhjtrcij^ ; and their pa-
lent ibr Uie sole trade to'thc Easl- Indies, ui-
vthXs them jn aU the merehnndizes of tDe«e
rouiitri^, and ]uifft^!»setb all in their hands,
'riien if injfrossing by the comniou law be for-
ftidden, iind it i!i unh^wi'ul to do it, all leticrs
patent (o authorize and help u)cu to ii^grosa
must ULvdH be its void a<^ that, which is the end
of ingroising; and tbut is monofwUzin^.
My loni, in the Jd Jnst. IBl, thecasicof
John Peachy, in 50 E. -3. who was severely
punished for procuring a grant or licence under
tin i*Teat seal, that lie only might !»ell !>«e<t
umes ui London, is a stroug ease for u^. I'or^
uty lord, this was iu.ru msm^^r i^y colour of the .
klug'» grant, and ( - a'gri^it otience :
and ihe casie ofIM< ^ that arc rciiotted
n Co. 04. Moor orJ. aud in Noy,d'
that (uonopoli/ing i^ jogrosiiiing, aud iW
law that i& against ingrn:»siog h> ugaui!d>muuu'
polixing ; and the $atne law that makes the
one I Old, tuakesi the other void.
In Darcy's ease, whej'e a ^raiit by pateut
was m;ide to him forth- ' ^ aa
beyond seu^ and the nv.]'. ^
rtitit^ and proiubiung aE^'Mu^i::. im ^kh , ii»vt(^
it was adjudged arVoid ffrant.
:\nd tht; Stat, of 21 Jac. cjvp. S. duei^ deelare
all mooopolieM to he void ai coiumun tan ; hq
then if this grant ht a grant lu v *j j, V' Iul^^ «>si
or mouopc»hze, I thiak it \y i-
eluded lo be agu^ust the etu <td
made void tlieitty.
Ntxt, tpy lord, ihnt th»^ grant of the sole
trade to the f ^t
statute law !i t ».
As for the titatuit <*\ ♦» tr4ve
lea^e to hpkntk of it by n < ; bul
4SS] STAR TUALS, S6 CHAftUt H. l684^nkr Grmi Ctie tfMmtfOuB i [IH
I siy it v aniiMt the ancictit statutes of this
luDgikHii. Maj;na Cbarta, 9 H. 9. eap. SO.
all inerchaots, if thev were not [irohibUed lie-
fore, »hoiili bate their sure and nfe coDdoet to
de|iait out of England, and come mto EDg[bnd,
and stay, and go through England, as wdl by
land as' by water, tn bay and sell without any
e«il tolls, by the ancient and just cnstom, ex-
oqit in time of irar. And my lord Coke says,
That in this act, ' Nisi publice prohibit i fiierint,'
is intended of a prohibition by the public
council of the kingdom, by act of parlia-
ment. 60 that this act does in these words
make our case : It says, * They shall, if not
* openlv prohibited, hare safe and sure con-
* duct ? and if that open or public prohibition
most be by act of parliament, so it is probably
a declantion of the common law. Then here I
is no such in tliis case, no prohibition by act of
parliament to restrain from going to the East-
liidi^ but the defendant may go thither if
be please. The 8tat. of 2 £d. 3. cap. 9.
< That a]l merchants, strangers, &c. may go
* ind come whh their merchandize into Eng-
* hind, aAer the tenor of the Great-Charter.'
The statute that is pleaded 18 E. 3. cap. 3.
< That all merclrants, strangers, and denizens,
* and all other and every of them, of what
* estate and condition soever they be, shall sell
< their merchandizes from whencesoerer they
< come, freely, without intemiptiun; and
* shall haire the sea open to them, to pass 'with
^ their merchandize where they shall please,
* without interruption, excepting to the king's
* enemies; and that this act shall be obserred
< and perfbrmed notwithstanding any charter
* to the contrary-, ami that charters to the con-
* trary are of no force, but arq to the king's
* damage, and to the oppression of the Com-
Stat. 14 E. 3. cip. 2. recites Magna Charta
and enacts, * ITiat all merchants, aliens, and
* denizens, may without lett, safely come
^with their merchandize, safely tarr}-, and
* safely return.'
Now, if so be, alt merchants, strangers, &c.
shall seli their merchandize wherever the}'
come, without interruution, and that enactins^
clause be laige enougn, as sure it is -, then it
has an express clause. That all charters and
Eitents to the contrary are void, as being to the
ng*s damage, and the oppression of the
people ; and therefore they are all by tlie par-
liament declared to be void.
The Stat, of 25 E. 3, cap. 2, confirms
the former stat. of 9 E. 3, and has the
same clause in effect ; * If any proclaiiiariou
*. or commission be to the contrary, it shall
'be void.' The statutes of 2 U. 2, cap. 1,
and 11 R. 9, cap. 7t confirms the two
former acts, and enact, ' Tliat all charters,
' letters patent, and commands to the contrary,
* shuli be void.' So that, my lord, those many
statutes, a^ most ^ the old ones, being penned
in general (but' abort) words, and heinfl^ in
&vour of trade, have been taken to extcnifge-
nenlly, Ihr the general and most large advan-
tapoftndt; tEoogh periiaps some jiarticalar
trades were by coDstmctioB BMstfy
as the statutes of the staple ndgbt he tliA oc-
casion of making some part of them. But they
do enact, as your loiwiip sees, m general
words, « That all grants and kMfefs patent Is
' the contrary shall be void ;' end sorely AiS
would hare never been pof in, but that iti all
times grants have been made, wineh flie king
has bra deceived in, and found tbem onntivy
to his real advantage,- though they hatis bSeb
otherwise pretended, and were to the uypitsiinn
of the people, and therefore toM.
In tne 2 Inst. 63, my lord Coke, in his ob-
servation upon the oonsideratioli of ^te^
Charta, and the several statutes that were sittr
that made in reference totcade, ssys. That
upon this chap, of Mag. Chart, (to wit) die
30th, this conclusion is necesnrily gamend,
* That all monopolies concerning ttade tftd
* traflic are against the hberty and '
* granted and declared by his great
< and against divera other acta of ]Mr!
*' which are good commentaries npob it.* te^
that, my lord, I do not offer it only as thj M^
sent thoughts, but what has been tskeii for mis
heretofore; that those acts arte of gCMtal
extent, and all charten made to the cetilwy^
are ipto facto void, and of no force.
Ohj. My lord, they say it is true, if w% ttt *
ODopohs then the hw is against w ; hMlIlt
^Ai\
are no monopoly.
"Rtip, My lord, to prove they are a
»ly, that is the next thing, which, witk yStf
roship's friYOur, I shall go about.
And for that 1 shall first take the dSicilSlia^
that is of a monopoly, made by my lord Cskt,
in his chap, of Menopoties, in the 3d iQlt. 181b
aud if it is possible to exemiit them oot ef tlMt
descrintran, I confess then tney have a sbougtfi
case ttian I do hope they have
A Monopoly (says he) is an uiBliftisti,eraQ
allowance by" the' king, by his graatf teiti*
mission, or otherwise, to any person or Wsfsane,
bodies politic or corporate, of or fbr ttie isle
buyioc, selUnr, making, working, or using df
any thing, whereby any person or persuM^
bodies poStic or corporate, are Sought te !•
restrained of any frtiedom or liberty thai they
had before, or bmdcred in their lawful trader
First, My lord, 1 think by their patett, thsy
have the sole trade granted to them ; that f^
the sole buyiag and selling (for oierehandirfeij
consists in 'buying and seHing), and therdblS
the}' have the sole buyii^ and selling in Ifeli
East -Indies ; and they have consequenllytte
sole selling of' the commodities when
come home; for none ehe can bring
home but them, if their charter be good.
The sole using of any thing is a
word ; and another part of this descriptiun, mtm
trading, is sole usin^ of meivfaandBes, m 4
particular place to which they trade ; anA ii^
they are within all the words sole seHing. sdH
buying, sole using.
-Secmidly, They are abn withm the kttif
par^ ; whereby any perrm is hindered er ie»
strained ftem iony frecitom or liberty tbiBy Bl4
before, or in their lawful trade: Fortkstftil
ItS] RA^TE TRIALS. 35 Csailbs It 168^.^7^ £. h Cmpmy •, $thd§i. [411
^
MMt, i« 1 tfal&k, iip<m tfc p:^t hi
MK l&» tkUM and gl)0d9 uf
MiCf) fMllae briHis^g of thT^ iu:M<m \s »
fl^nA Bfoqf tliit jrou were hmriererH of this
lAirik, tej l«^ y pttt
if^ nOlNI|lQlY.
fitit, my fanl, I timk tlmt u!l the ^rils and
tfadiWfi thftt ar€ ia ibc t n notice of'
isli' iii cfiff)r>pnlir^, an' . . case ; and
vtenevtr bnr\ <u iiicbiefii attend -
ii<» «ittni»polif%. and shremf tir-
fFBt, « lift I Ut4l ubiclt ItaUi ttie eifoctf hath
1W mis sii4 mitclttdk ihti attend mono*
tills
e=,'
Mi, lilt
tet«, «r» of tilt 1 1
B riTHfl
Mb.
fli^yMtj It . .
1^ trtl! api^'Mf (»1
--^ of tlic emimiodities
\t, unii mised higher
as iie
-jued in
t)y my lord
> whereof 1
£ com pa 11)' ; far
they hrinsf frciin
ind althi'k
♦^n JH more
^t be a
I tempt
mI»o h? corn-
ulll (tfiT r the
T *-*- " j.iic«>, and
^^s that he
i»eap as hp
Ihai h« ^*4«lk, he uill Sell
»ii'J 1 Uiiuk (hilt he thiit
iii^l U' A mnn of an extra-
rlo not execute It,
' (if monopoly iJi, thai
'►rurn ipiiL-Htu/ uhich
> Un; margin of fhe
t»1. Now whmher
if»T\ h'
4^to^ bmI J
iirtrl«tAA liv I
tonditiun of thiii
o;*rtl »(iik«d» but
A consequence i
this reaMOo to be
tn :' for trade is
.mil stabh-, hill
I war
ur that
or the
or lite
'■^ : and
'»l>ser-
:^? this
s and
fr^
r ttfc^m bt-5t
meoi.
Bnt a sole tmde granted into tfais or thai
part of the world to one compaoy, and of ono*
iher nart to atiOtlier» veta np panictttar men
that head that cornj^any, but destroys all otb«r
merchanta and inferior people; all atiippinf
must be sut:^ect to the prices tbeae impni-
pnMors of trade will allow them, or else K«
still and he destroyed, for none else mnii em-
ploy them^ nor can doit ; and ao mnst aR
masters of sbips^ !t»r it is necessary to thecn^ in
order for their liTelibood, that they g:o auoi
Toyaq^eft, aod these cannot ^o^ except upon ttie
terms that the company wni allow of. 80 aTI
mariners, artificers^ factors^ and all other p4ir*
sons, whose employmeuis depend np«n thia
trade, must be subject to thetr will and plea*
aitre : and of how great consequenee ttiat inrjr
be to the kingdom, my lord, does dcvet re eoQ*
sideratioh.
Third ly^ j A thffd eril and miscktef m Mo-
nopolics i£, that thty are to the oppfcsaion of
tlii; king's people ; and any body, 1 think, that
hasknouti any thins^ of late years about tfaia
company, that ia, thit knows their dedm^
with, ixod handling of their factors ami Hervants,
tliai pet any thinfj in their service ; and other
peopk that they emplov, will find in!«tam»c
euoug^li of their oppression ; and that wilt be
ciiou*;h toMtisfy any maD, what kind of people
they are ; for what a work is there, when they
ha\e any factor or servant, or any body else
that has ^ol any thiug in their serrice P Thoae
things indeed are not upon the record, but they
are consequences that aie visible to every bodv :
and the truth of it i^, in all patents for sole tramr,
Br» It will be. So that if the evils and mis*
chietf, which the common law forbids, and en-
deavours to pretent, by jnd-i^mgall monopo-
lies, ingro^jdn^ atid sole trade uniawfid, In* to
be avoidefl, the evils and mischiefa attending
their patent and aole trade are perhaps tho
greater, because their tnide is the greatest that
ever En inland knew.
My lord, in Fitzherbert*s Natura Breviiim,
S2S, there ia this said, and I nrge rt for thia
reason ; because if m be these are oonsaqueoces
of a sole trade, it eaonot be denied but these
are oppressions of all tlie king's people. Wow,
there it is said, that every tyrant of the \dtsc
has a condition implied in it, * i^uod Patr»
* per Donationem non raayis solito oneretur
• seu qravetur;* so the Book of 15 H. i, If.
Grant I e Roy, to the charge or prejndtee of tlia
subjects, is void : and therefore the kin^f b de-
ceived in this grant ; and the grant is as well
I by the common law, at all theae ancient 8ta-
tutcsj void.
OtfJ. Ay, but aay they, this is not a patenl
granted to the advantage of a few, or for tbe
miHiti)^ of the prices and monoi>oU«ingof com-
modittcij, hut l«>r gooil j,^o\emment and ordiT,
ami the preservaumt of this trade, that other-
wise would be dcstvoyctf : and nay they, Ihsfrt
ha»e been such grunts hcrclofurts to Turkey »
Barbary, and other places.
Rep' It » true, my lonfl, this is said ; tod
that patent does say, that it is for g;Dod
«S7J STATE TRIALS, SGCharlesIL les^.-^The Great Cmc of Minmpoliet:[4SB
and ^overament, and the advantage of trade.
But I pray, my lord will also remeinber what
our Books say coocerniiig siicb Grants aud
Monopolies, iu 2 Inst. 540, that new corpoi-a-
tioDS trading into i'oreign [taits and at home,
though under the lair pretence of oriler and
government, \xt in conclusion tend to the hin-
drance of traJe and traffic, and in the end pro-
duce monopolies. This is an old observation,
for iu the IXth Itep. US, b. in the cod of the
case of Monopolies, there are tlie^c words :
' Privilcgia quaere vera sunt in Prjpjudiciuni,
* Reip. magis tamen spcciosa habent Frontis-
* picia, et booi publiei prielextum, quau bonae
^ et legales Conbessiones, sed prstextu licito
< noB debent admitti illicitum.' Those are the
words of that book ; and there it is also taken
notice of, that Darcy's patent had a most glo-
rious and specious preamble; for there it is
mentioned, that the subjects might exercise
themselves in husbandry and lawlul cmplov-
ments, and that cards- making liad made card!»-
playing more frequent, and urincipnlly among
servanu and apprentices ; and therefore the sole
making, and trade of cards-selling, was granted
to Darcy. Observe, says the Book, what a
glorious pretext and preamble this odious mo-
nopoly had.
There is the Case of Horn and Ivy, Mich.
20 Car. 2. Rot. 403. A patent made three
yeare after the fMiteut given to the Company,
and in imitation thereof, the patent is to the
Canary Comjumy ; and recites, that the trade
to the Canaries was of ^eat advantage to the
kiiig^s subjects at that tune ; and by reason of
too much excess in trading of subjects therr ,
our merchandizes were decrtased in their va-
lue ; so that the king's subjects were forced to
carry silver there to get wines ; and all this
happened for want of regulation and good go-
vcruuient, and tliereupou the patent did con-
stitute sir Arthur Ingram, and about sixty )ier-
tions more by name. And all those that had
been U-aders' there within seven years for the
Talue of 1,000Z. a- year, should Im a company
and body politic and cor|K)rate by such a name ;
that there should be a governor, a deputy-
governor, and twelve asi^istaiits, and names
them, but to be continued by election, anil
should have the soli; trade t(! these islands ;
that no other should haunt or \ i«it these islands,
and prohibits all others under pain of f brieiture
and imprisonment, and indeed follows very
much the frame of this patont, with a non-
obstante to the Statute of Monopolies. But
notwithstanding tliis glorious preamble, this
patent was soon afterwards condemned, bylh
m this court, and afterwards in the uarliamont
for the abuse of trade, and the regulation of it
for the general good, which is the thing that
is pretended ; but few men can doubt what is
really iutended by that ; and no one I think
can doubt, what is the n^al intention of this
|>atent under the name of regulation aud go-
vernment: to ingross all into the hands of ten
or twelve men is most excdleat regulation aud
government.
My lord, as to the other companies and
charters that have been granted, suppoung
that all these grants were such as this, and •
used and practisc>d as this is, it is no argument
that tliey are l^al, or that this was good.
For, my lord, it is well known, botli by the
ancient Statutes that I have cited, and by com-
mon experience, that there have been in all
ages and. times patents granted, that were not
by hw gran^able, but tite king was deceived in
them, and those patents were void and of no
force ; and therefore it is uo argument, be-
cause there have been many such grants and
iwteiits in former times, that this should be
good.
I agree, my lord, if ever this grant, or any
grant like this, had r^me in question, and had
received any judicial allowance to be good, it
had been souiething ; but otherwise it can be
no iuf ei-encc at all, because tiiere are othen
tliis is a good one.
But, uj V lord, to keep myself close to the
point of jlonopolies; Monopolies bare beea
granted in the best of times ; in queen Elisa*
bt;th's time, there was Darcy 's patent granted
then ; and it appears there had been grants li
divers others ot the sole making and adliiig
of cards, but when it ivas quesUoiied, it was
condemned. Statute 9 £. 3, cap. 1, and the
other Statutes betbre-citcd, the clauses tint
say, all patents granted or to be prnmted i
trary to the freedom of trade in these £~
mentioned, prove,
1. That such patents have been.
2. That they did foresee, and
against, those Uiat would be.
The proviso in the statute of 43 Elix. cap.
1 . sect. 9. shews also that monopolies were
granted ; but so far were they from reoeiring
any allowance or approbation, that that statute
that was made in trie end of her reign, for con-
firmation of the queen's grants by a special
proviso, does exccj>t and provide that it snouM
not extend to make gooil any letters patent
that did concern any licences, powers or pii-
\ lU'Jcs, commonly called monopolies.
The statute of Monopolies and this sistula
sufficiently shew, that there were such giants
and that they were not allowed ; so that even
in queen Klizabelirs time, and during ber
reign, divers such grauts it seems had lieai '
made. But, my h>rd, if so be there had never
been any judicial allowance in times past for
any sole trade, or sole buying or selling, though
there have been iu all times such grauts msder
yet tliut will be no argument that thcv were
good, but on tlic cuntrHry ; and further the
practices of theso com[)unies have been to thq
contrary, till uitliin late 3 ears; no sole trade
pnu'tised aiuoug them.
But, my lord, on the contrary, siiu*r tbsl
patents have U'cn so giuuted, since that tber^
IS ni» judicial all-iwance ofsuch; 1 would ap*
peal til tlii'ui to shew whether there has besA
any practice of these things. I do uutsuppiSCW
but that in Turkey and iiarbary, (lersous oar*
traded that have not been licensed by the i
J ST* ATE TRIALS, 36 Cm ailes IT. l6»4-— 7%e E. L Comfuny t. Sand^$, [43[|j
^■toies, and tbul contioually in all timca ; but
^Hit I think no-boify will tiurl any jiididal
^^wnmn ditt lias Wen given agamst them (or
iSf ortlmt ei*er any such jiatent wm of to tee
10 rvtf rain llie <iubject3 freeOoin ol' traile in
[ am a)>t lo lKink> that th€ grants
,..,'..,;. .^ *h,.f ;w the Turkey- Com -
V, anfi the Uiissia-
of sole trade ; btil
iiTL? been |»rflrtisedlo restrain
ismer, it is rather an fiiT^umenl
; theni of Ihu other side ; but they have
d«f< thus, nor nssed the clnuse ofprt)*
I as iht-se mc>ii do. For, my lont, wKo>»
nks to m.ike any concliisi'jti tor the
I tii'such n sole irode hy a (.'ompaiiy
kinl oroihers, because such i>atentis
liate b<>i'n gmntiMl to other Com-
j will have but little reason so to do^ if
lider what :% difference there \<i between
n|>iinv aod ihcm ; for, my lord, thes«?
i\\i\ ih vrr ^r»i ii|) for a sole tratle,
in the jTatenis, they
V- alwfiy 9 use<l their
ntrary, and in ariothcr method tn
ible way, and 1 think in a le^ul
tmt not so as to warrant any tbrng" of
,tliat f^ beT»? pretended. T^hrietere iryour
^i| i^» give me leave, I wouki ob-
tt5 let^betnixt the way of trading'
E>^e ijt]i'- r euinpanieb have* and th<? trailc
'ifnUn C'oiujKiay. 'Hie conipanifs
Itcy, Barbary, Russia, Mnseovy and
gn, nor any other, tilf of late years,
trado with a J^int-stock ; but the
the «aid CompHny, every man
trade, buug^ht and sjold liis own
eiMSnBia^ity, used and employed {i\% own faetors
ltd f^rvmni^ ; and the Company took some
cipc to send out a consul, or some one to be
ter ogtnt, to prt^erve the trade, and by smalt
imports npon the cotnmodhieisi traded'jbr» to
firovide for such officers : whiub impost* or
imuin^iils Wei's ruttde by by-laws and regii>
lnitHie anionic themselves, f bey lake cai-e tbe
•irkptish&irnolbeover-closfgfed by the com-
moditictf they lieud out, whieh they do also
^ tlieir own onter*i and fiy-laws that are
oadi? among' tliemselves ; tLey only onler
what ibtp« «ha11 ^rn, but leave the frdrtleular
n^^rnbers oft Ik ('<»mpany» every man to wild
W'hal fie \\ \\\ n i>on hts own aceount, ami ajiftoiut
^\^\ r bi.s (actor, and lo brings over
*bii . he pleases: they trade not
t^Mni^y joiiii-^UM^k, or the stock of the body
Ctic. If yott deal with any of tliem, you
# the puriicidar person yoa Iwvve to deal
•tth: no man is^ refo^id toW of their f'om-
^that ha£ a n^ind, payint*' some Kmall
r money t»r hi^ rreedniii ; and whoever
> Company^ has a vote in ordering the
if&in» uf the Compatiy. But now yon of the
£tBt- India Company ingross the sole trade
IrIO the botly- politic; you hate a joint- stock,
Huj iHAQ wKether merchant or not, if be can
kttj lucli a thafe ia tbeu' stack , is of tbair Com-
pany. The Committee manage, and tbe
must submit to Iheh- pleasures anil dtstrtbutioiii
those few of theni which have the most sbi
hafe the disposal of the whole ftock ; no me]
lier trades, buys or sells, or has any thine thi
he i^alls Ills own, but only such a share to the*
slock : you suflVr not the members to trade
with tlieir own money, at their own discretion,
or to employ wliom ihty please, th«« yoti do
not do j j<ot snirer no man to have a vote
amnog you (iiud your letters patent b«ve suck
a clausie that none shall) but he wIkj has 500/.
stock ; which 600/. no man can aei|uire, uri-
lesH he iKiyt 14/. or 15/. fof it, two and half
per cent, or some great sum* 8o that by the
irery tmmdatton., ihey can have no more* per*
sous tn tlieir Company, tl^iao they tliat bave
500/. shares; and the^j»hares being eni^rossed
into ie\¥ haods, they have all, tmd call them-
selves the Company. 8o that man that will
not be deceived by words, but distingtiiah
thin^ different one from another, will dis-
tin^oieh Mwecw one company and society,
and anoiher ; %vho are in^t)9ser9, monopolize ^
and who not.
The Turk\ Company and the rest like
may Ije truly atud to be mana^^ers, regulator
and improvfciis of trade. They have no joini
^tock tliiit they trade upon, they ingross n*
they admit every man ihat wjH, to be free
then' Company, to tmde with hia own money,
his own creilit, and buy au<lt»ell his own, and to
employ whom he [deasetli ; and none among'
them, under pretence of n-ovennnent, rei^lation
and preservation of trade, makes mireaso&ahle
adianta^es.
But this invisible East- India merchant, the
body* politic, covers mud coutttenancts some
few men amon^ them to ini<-ross, buy and
sdl at their own rates, and that exclude all
others for tbe great and excessive advantagea
of tbe few.
The other ooropatiies, as the Turky Coi
pany, 4cc. have not any aole buYni<roriiellin|
nor exercising' any sole trade or in^rossingp^
Every mcnibef of these companies, winch
a multitude, and every one ihat i« not^ U'^Jt
if he will, bo a member « and no man ii cx-
dudcd.
But this Comptny Is quite contrarVf and
therefore (if ever any wait) are y^rcat iii|^rossers
and monopolizers o}' trade. I do not argue
niir speak againHt Companies, nor r» ^^ulating",
nor maiiafirnrg trade, which was the true in-
tent of the patent ; bucU azt 1 liave uLeuuotK'd,
and XH virtuou&ly and cominendably pr^wtt^ied
in the g^reat Com|kanies of Tnrkvi MuVcovy,
ilamburt^h, and others; where tlie memt^ers
of the C'ompanies trade upon their u«u parti-
cular stock and «sta1ei$, and no merchant hin-
dered or detiieil to be a member, thiit de^iires it,
paying its ordinary fees of ail mission : but
aguiost the invisible merehaut^ this pdilic ca-
pacity trading in juint-stock.
Suppose a like patent to any one* or two, or
three men, farmers or partners in tbcir private
capacity of thia solo trade j »od Ibiry bad the
481] StATetRIALS» dfiCMAUisIf. iSi^^mGn^iibmlifJHmp^Kni \4ai
man sheuld have as maaj votes at he has 500/.)
his rote is like to do him Uule good, if tome
Urn men io the Company agree against it.
And besides this, my lord, in theTuricy
Company, where they trade aft distinct mem.
hers, eyery man knows his creditor and his
debtor, because they deal in their natural ca-
pacities; but you trading in capacity of a body
poIitiG, ereij man that trades with yon has i
creditor or a debtor^ he imows not whom.
And it isa great mischief, when peraonsknow
not how to sue or how to deal with them ; ht
take them all a-part, they are aa juirt andiM
eood people to dw with, as cad be; hvllake
them tKwether ss a body, whal more hasd t9
deal with than a corporation T
My lord, we hare seen the ipsiance^oftt^it
ihinjgs in this Company, in a few days they
having so great power, iliat none could eontend
with them, and soon after so invjriWe, aa well
as low that no dun can find them j Thia we ill
know very well, my lent ; and 1 hwtaact in
this to snow, that whereas they wowU be
likened to other companies, which were oneatad
for the preservation and benefit of tiwle i Md
the members of it are under the r^dfartioo and
government of the Company, but nol as you
are ; they are traders, your membeim are JM»e,
you are only the body politic, the jnviwik
merchant, that no one knows where fo find;
kml a body politic, in judgment of Jaw, hos
neither soul nor conscience, and yet fonpaCha^
traders.
I only instance in these thingai to alww thii
nageilieDt of h, and hersl^ possessors of
such vast weakh and mercfaiUioiBe : What
woidd thb politic body (I mean the principal
meBiberi, Mr the body caimot think or have
sense) judge of this ?
Ferttfips yours is mudi worse ; there a man
should know with whom he dealt, who were
hb debtors, and how to come at them ; but
dealing with you is a land of dealing fHih spi-
nto, an invisible bodv, only subsisting in Intel-
iigtntU Legis. Therefore being so nnlike the
o&ec Companies, and so contrary to them,you
have no countenance from them ; but though
they are good and commendable, you are in-
grossers sod monopolizers.
This shews the great and vast difference be-
tween the one and the other; this shews that
you, that are die East- India Company) have
the sole trade as a Company; and whoever
buys in many stocks, has as many Votes as he
has 500/. in the stock.
There is no snch thing in any other Com-
pany, but quite otherwise in all these respects;
hut hereby it comes to pass, that he that has
so many shares in the stock, has an absolute
power, hy having so msny votes.
The mvisiUe body or cor|>oration perhaps
trade for 1,000,000/. per ann. they get into
thor hands to sell 7 or 800,000/. worth of mer-
chandize at a time; the three last sales they
made come to 1,800,000/. nobody hath these
commodities but they. Is this trading, and
DO ingrossing or monopolising? It is their
wonderful virtue then, hatred and contempt of
riches, that makes them not to raise and in-
crease values and prices, and he as rich as they
please, if they do not do it. Never was there
such an instance of so great trade in Engrjand,
hut none of your membm buys or trades at all ;
any man among you, whetlier he be merchant
or not merchant, citizen or gentleman, or what
he will, if he has a stock, his stock goes by this
joint^-tnide, but it is a few men that manage
the whole as they see best ; no man employs
ships or workmen as he thinks must conve-
nient ; but you are one great trader in thfs vast
trade, which is indeed one quarter part of the
trade of the whole world.
My lord, this being tlicn the great diflerence
between this trade by a joint-stock, and in the
Company as a body politic, which is but as
one entire person, having the trade entire to
himself, and the trade ot particular members,
luder orderly r^hUions :
It is quite a different «nd distinct thing from
any thug, in any of the other Companies, that
they would be likened unto to obtaiu their own
ends : nor is there any reason to make tliein
likeone another, tor the whole matter is carried
on -distinct in both ; the one is a sole trade by
a body politic, the other dispersed throng the
anan, aoooiding to their own discretion and
' _ regulation. No man, if lie
lintothe
J you, or sale among yon,
'fiOOl..aloifc; aadtf hedo not oomeiD,(i
fcincw*Htoyswf n«<itinisp>thatewry
i East-India Company^ can trade
r sale among yon, mifcsa he have
signifies nothing which you < ..
that there are other companies for trade; Ibr 1
say, that they are good and regular^^ and aol
monopolizers, ibr they do not trade in each a
manner hy sole buying and selling, bnt every
one trades as a particulariuerchui; but yuu
are otherwise, your body politic is the apl^
merchant, and none of* your memboa cif
trade, unless a particular servant, perhaps tp
save charges^ you give him leave to boy ^
deal in some little Auugs ; hut all othert u$
quite excluded.
I^ly lord, having ihu» shewed you tha ww
of their ti-aile in sole buying and sole sc^Uags 1
slmll now, in the next place, come to theSMMs
of Mono|Milics, which isthe btatute of Slkilg
James, chap. 3. and 1 hope I shall plainly shMT
you, that they are ^tithin ilie words iiurtiaMIl
ing ot' that statute.
By that statute, my lord, it is enacted, *• TH0
* ail moiiojiolies, coninjissions, g ants, UocafMh
* cIiartersBud letters patent i;ruuied, or to hi
*■ granted to any [laiuculat iiersons, bodies ^
* Jitic or corporate, of, or tcr tlie sole buySlf^
' selling, niakiny^, wwkiiig, or using of ipy
' thing within this reahu ; and all prodwi-
* tions, inhibitious, restraii.is,* warrants ^^9^
* sistance ; and all other mattera and thi^P r-
* whatsoever, tending to the institutingi fintf
' ing, strengthenmg, fartberingt or tumj
( naacing the same oontr^' to the bwaafJHK
KBim, are and shall be Nttorly vid WP
t438) STATE TRIALS, 36CttABLES lU
«AbI llMi all itersmti, hoiilm politic Mid
*9vpari(li^ i»hich now a»'<*^ of h^reatlcr sKfttl
• kf, linU slmfMl ninl be dtsftblefl lr> have, use*,
•tafffi^ft or jtrr* I' - -- ]tTtlv, orsnch
* tomnmi^tm^ _ ler, )piters
*ml i.lj or
••^j, Ml<>rJ or
Tb«^, ' chutes of
*f V' iWii there
liL* > HOfI srtme
^- o ctnu'crfj-
t »»'p-»nii>Hn-:, i>t ulMtSi s*>hit^ use M\ig
in lti«% c^»t% I nhiitl crave leave lo con-
,.. .:.,,y
Uo, amf it ig UcTi^hy enacted,
f»t any ati
to any t ' :^
, witluM iIr- TL-aim,
mr?f»f*, cnlnr-^^tij^, or
; but
mpa-
tMa'>» am] ihnr liber-
.locl imnimtiiies shalj
lSg4,— TO« E, /. Company t. Sand^t. [43*
Import them. Thoy have tikewisi> the*soIo
using'; i'6T V * * ■:■ ' ■ ' V s »J<j*
trade, wliioi iL*
tasing", that **psM,r^., , .1. > un ,u im* ni-.i j^i- , uud
cxrlnJri* all others.
Ht>w (l.i'n .nv lni.4 rnn Roy ttiati Trful thi^
act i>t chartert urni Loni' .
imretli ^ ^ k- fiuia at the 8:in»«3
time conclude*, taut ihcir obaiter is contraf ? t(»
iir« ,
1 , ^
_uwm|*',
Ttk^MrXt P.'» s i.u PTtf'luU til P;itpn1s fri'fiiitetl^
^^lif y salt.
fa», a«»t ni the
By ih<5 descnptiAfi of a Mf>nopo1y, >»hich
t Im bf fijri-, out nf niy h>rtl Coke, statcfl
•i rtprr«w**» , fln^ wolelrailc* granted to you,
^ the * '►f all othiTH, is a Mo-
M^^ » ilesrriplion, ai 1 hnve h«-
ii^ A«r«irfj Jh tt tiif'ir rhitrUr ', con-
•fery lo thci Act. My lord, they
•r WTtli'r: *^ ' ' .: clii*i>r rn un>* Act;
ili, t tfvi rit^ what Ihey claim
,,^..,,.^ ,,„.,,i i*il| pj^inty app^ir.
_. mtw ntnnJ so much ujiouthe won I
Iv. whr-tl»i r hv s\hM 1 have KTiid, I
or no ; b-it l»y
, Hi' H»»le buvni*;, or
if ihev have the «f»le
is d?rccl!y
what i«eu!tc!Pit th
does sjiy^ "^1 '
j>cr8on, orb"
&elliug-,or»oIeiii.
tion>i, restraitiiM jd
a net all other matte in
i lUe) GmtuAiM tlii^, «jxc«pi lUey
'f Torthrait of jtTiHuiruertt
any
: ,aud Ml! pt t^cliuno*
is 10 the coniniry,
I ml i:iMiijjf>!i tiiUrhiOj^tlKri*-
unto» are contrary to law, and utterly void, and
of noneelfect; Vj - • ' " by therr
t{:rant, the sole I uihI sole
iivif,.r ni *lM^ <. ,;, ^ ,,^,_,^., ,, ,,,, » me ciuiie
IS the enacting words ot Uiia
, - L, Then^ my lord, if ihey are
eontrai-y to the enacting clause of the act,* then
their hopes must be, that tbcy are saved by tb«
proviso.
My lord Coke, ia bts Eminent iipfm thin
ac« in :J Just. 182* does say tliis / i!>ly
and vehemently penned tor the t 1 of
all raonopolieifi ; and the word ' sole umu^,' la
thene Raid to be fio g-encral, as no monopoly can
l>e raiiseil but will be wiihiu the reach of thU
htutiife.
The word, * any thing,' shew* •''^" ♦*"' q^-
nerol scope and intent, that iintln be
excluded that wa«* a monopoly .* i'v. - jIu?i,
in times past, were ever without Jaw, but ntfver
without friends. And d'il be m penned for the
auppre«ston of all, it ought to hftve a Iftf^e &nd
general oonstructioa.
Oij. But then let us see whether they areiri
the saving of thi'i Proviso.
The Prof isn except;} charters to Compoiitts
or societies of merchants within thia realm,
erected! for the lualnteoance^ inbrgfement^ OT
ordering of trade or mcrctiandize.
Rfsp. This Proriiio extends not to tbla
chart or, or any lettens patent that were not at
the time of the mnW'"'^ ..i'lKL .. r • md that i*
the first things tli are not
%v»thio the reach iM ui^ethif
Proviso docs not extend to any letters patent
after the act of parliament made, but only the
letters patent before. For the Pmvtso M}*»,
^ It sliall not extemlt or b« prejudicial to any
* town cor^iorate,' concerning any charier
granted to thero, fScc, or cuirtouit used by them,
or to societies eretied for th^ ni4iintt'norict% in-
largement or onicntisf any ti-ade 01 merclfan*
dize, Tbit does extend to those ihnt Tierc
granted or erected at the time of ihe nuiifng of
the aet ; and there are nf> words of safing, for
any that should hcvcartei be rrccfcd. AncI the
won} Lpif-Ji. r uriiiM J^ wf II !i ive been in the
ise, if it
^:^ wordf»
ccinciuding thu, Pruvisu, j»hew il larther ; fot
the Proviso goea on, and nays, That the mtrnt
cltaiier^y emwmh oorporattotta, fellowship* «9ii
435] 8TAT£ TRIALS, 36 Charles II. i684.— ne Great CastofMimopplin : [49ff
societies, and their liberties, Sec. s^hall he and '
cuntinuc of such force and effect, as they were
betore the making of this act, and no other.
This shews, that that uhich is within the
Proviso, was that which was before the makins^
of the act only ; and this ^verns and con-
cUides the whole Proviso. Now that only ex-
tending to those that then were, and to leaie
them as they were, to leave their Charters and
Companies, their powers and privileges, in the
same state and condition as tliey were beibre
the act, can never have any reference to what
should be alter.
The beginning of the Proviso sa^'s, this act
shall not prejudice them : the conclusion says,
they shah be as they were betbrL* the act was
made ; therefore tliey must have had a being
beibre the act, but no words herein extend to
those that then had not a being.
And, my lord, the next Pi-oviso for printing,
8a]t-|)ctre, offices, &c. that is to this, further
shews this to be the meaning of this Proviso ;
ibr that expressly provides. That this act, or
any thing therem contained, shall not extend
to any grant or privilege heretofore made, or
bereatter to be made, of, for, or concerning
printing. If then, the former clause hud in-
tended to include any letters |Kitent that were
alter to be granted, it would have had ihese
words, * To be granted as well here as in the
* clause that comes afterwards.*
Rut, my lord, suppose this not to he a sufH-
cient answer to this Proviso, hut that this Pro-
viso shall lie construed to extend to companies,
charters, privileges, and imnmnities, grantotl
after this act ; yet the plaiiitifts arc not within
this Proviso, nor the saving of it : lor it ex-
tends only to comjKLnies that are forthe main-
tenance, udargemifut, or ordciing of any trade
or merchandize, and to their powers, \'c. that
they have to tliut end not two coiupanies, that
have expressed it in your declanition, * totum,
*' integrum et solum Commcrcium et Nego*
' tiatibnem habere, uti et gaudere ;' and to
exclude not only all strangers, but all your
own members, to base any distinct or separate
ti-ade upon his own account, except a little
to pay and excuse you of charges, and
therehy ingress all that vast Quantity of mer-
chandizes, the many hundred thousand pounds
wonh you bring in or carry out. In whom
is the propeity ? In the corporation. Who
buys and sells all ? The corporation. Who
are the debtors for the money that buvs
and provides these merchandizes ? The body
politic, the corporation, the invisible body.
n ho shall be sued for all these debts? llbe
body politic ; sue tliem as you can,^ they will
either be too great and too rich to contend wHli,
or else in that condition as you know not how
or where to have them.
An invisible body, subsisting only in intel'
ligentiti legis, a body politic without aoul or
conscience, as the law says it to be.
Wc ha\ e seen them in a year's time, in both
these qualifications, so great as scarce any mam
would contend with them, so invisible at ano-
ther time, as a dun would scarce find tbem ;
this surely cannot be fur the maintenance or
inlargement of trade, to deal with I know not
whom, where no security or person subrists.
It is, in<leed, fur the muintenance of the
Company's trade, to enal>le some of tbem to
<;el 10 or 20,000/. per aimum by it, and to
keep this vast trade in a few hands. But wan
that is not of the trade the Proviso intends;
restraining to the Imdy politic, wbicb is but
one person, or many in partnership, is qiute
contrary to the enlargement uf tlie Proviso
mcntiumd. And therefore to say you are
within the saving by this Proviso, a company
cri'i*ti;il for tliu maintenance andinlafgementof
are erected to haveasf)le trade b\ » joint stock, j tratUs when you restrain all but younelvea to
or st'ick of the corporation, to ixrlude all othei-s
from having any thing to do in that trade. It
does, and reasonably may l>c intL'n<lcd to extend I
to all companies that are tor the maintenance, '
increase, and well-ordering of trmie ; as the :
Turky company, the lMu%>i-o\y com|Kiny, the
Hussjia comnauy, and ilau)lM)ruu«:li company ; I
and those tliat'l have been s|»caking uf, that j
trade nut as bodies politic, or a joint stock, but
every merchant that will, may be thereof a
member, and every member tliei-cof trades :
upon his own pri\aie sttxrk and uccouni as a
trade, seems to he a contracUction.
And fi»r the following words in the ProvisOy
*■ Or ordering uf any trade or mcrchandisEe ;* if
you say you are saved within the extent of
these words, then you must make a conttnic*
tion uf these words in this sense :
That ordering trade or mercliandize,if ex-
cluding all 4)thcrs, and taking the whole to
omselves. A mi»st excellent ordering tbftt hi
Ui4t the sensii of these words in tlie ProvifO
is, tu save to the cori>orations and fellowsbipo
of arts, trade*;, occupations and mysteries.
merchant ; but not to this c^Mi^pany, who, in- j tu com}>anies of merchants, the" |)Owers and
stead of ordering the traile, eadefa\our to bring ; authorities that they had for the maintenance,
the sole trade unto tht uiseh (>s
Therefore, my lord, these are the companies
that are within the exception saved from the
p«^nalties of this act ; but ^^v must be as silly
as the infidels they deal wiih in these maUers
not to distinguish betwixt these rorpuraliuns,
and their management and yours; they exclude
none frcnu trade, they traile not iu a pulitic ca-
pacity, in a sole stock, but every man is a
trader upon his own peculiar ; but you take
WfMm you in your politic capacity as you
I inlargement, or ordering of trade
13 \ taking care that commodities were ho-
nestly anil rightly made, withotit fraud or
deceit, as tu the goodness or excellency of thtf
commodity, or deceit in their measures or
quantity ;
That the sen ants and younger aort wcie
honestly and industriously educated iu their
trades and mysteries, by the masters and eldcf
sort ;
To place and keep good order nnd deconP
^ i tlifk«r *»f the «wje iiif«lcfv nnd trade ;
fiartweiiililifig and t<msnltintr tor the com-
mm igiwjil flDfll tnmiiAifnncnt of ihtrir respective
Hfovi«<) c3ccp|»t^ and
■t lun^ tn€mMuefija«t lictbre, as new
»aii<l llie sock'ty (>r»ny era t\ or my s >
IffT? tb#iae aijui Hr#» umlef ilie exception^
I i5oc9 still expound theni to he incatit oi'
Cf||fiilmr, ihit* onler und g"ov*?rnment in
^ for the iliie r^'s^nlaiint; of trades
IJJT] yrVFE TRULS, 3$CRAitts&ir l684.— TOe H. /. Comp^mf », .Siin^fy?, [438
liare a «ole tnidet to hinder oi* exclude others
from iiitinjj It. Thut \^t\w frn^ sense of tlie
Proriso: but fx>f the other sense that ihcy
wouid hiiTe« it js ttie vrayto make it the nio^
repugnant and contradictory act that ean be :
for, my lord, tft shew that it is so, gi%e nie
l^ve to compare iheni.
The sense tiiey wonld hare i.s, tliat it siicmld
ttve to bodied poliijc, the having the sofe boy *
ing^, RfUing, and using' any inerchttndrze or
trade, as a corporation ^^ tbat such should be
excepted out ot ibis act.
Now let lis compare the Proviso nith the
enactiuE^ clause, and taking the Proviso in that
sense ihe\ wpuld liave it, that a body i>o1itic
may have the sole buying and selling, or n&ing
any mere h and ijte or trade, as a corporation ;
then the enacting mri, ifith the Proviso, will
run thus, enacted, That letters patent to any
[icrson or hoAy police, for the sole buyiniyf, sole
making or uslng^ of any thing- ^ritbin this realnii
are contrary to lavv, an<l void ; and no body po*
litic shall be capable of having, iisin^^ or exer-
cising of any such letters patk^nt, inhibition or
restraint, provided that boiJjei poUUc may have
the sole hu^ in^, *»elling, and using of any trade
or merchandize.
Is there any thing can be put in words and
tenns more contradictory than this is? and
yet thus it must be if their sense prevail ; ftjo
that, roy lord, there ig not a more repugnant
und contradictory ttiuig can be made, limn this
Pmviso to the horly of the act, if yon take it in
the sense they would haie it.
SiTpposp the slalulc of -— — that enacta,
That no man shall u^ a trade that he has not
tifctc»irllt»til
tttlN iSaik^, tillli ine vniii:i-iT N<»rT (»r nu«-nii.'nl
la l£e elder, aod the effler instruct the \ oun^t^r,
mi tM opproM them. Tiicsi* uro thr lau-s
ibti tiMff »«fe (HI Wit (nnd it is tit they should
lasi*^ to maic for the roana^'ment and increase
«ftr- to have a solo power over tnule,
^ \[ 1 ju it by a joitil iHStock, to ing^i-oss
ft Olio ^ir «**•«*< haml*» or into the hands of a
My politir^ which is bnt a* one person in law,
ttA la this titatiner to trade under the pretence
tf aHifr *»r ifftrtd tjovernnienl ; ihii*, under
lueaut or intendei) by thi&
\. Therefore that which 1
<l, i* tire seniBe nx\\\ uiean^
'\ and not the havin^'^ the
" ^»fher5, as here is en-
» have.
L of Jpsivich's Case,
uy of tay]or<f made a
- frnrn exercisiujf or
vn of Ipswich,
tu the master
, and three of
iir-ni workmen,
iVt ^eru-d seven years at
and then admitted by the
,,: ■ ■ ^ ■;;■., * ' ,r
WvU
Jin«l meaning' to ex-
h t* tb'
tu be t
'^^'^ '
\y n .rone might think.
aliwi^ ltd were Uje judges
U(»der any pretence they should
ICO from their lawful trades, that
P mtiilgvd thin a void by law, as* tending in
of if, to n<»t!nm men of their
and introdiJcin£i:
rn<*ft by (he rdd
[nifM^ lri*K'»o>eii t .- ^
l^lwmei. And
wiil 4;«v*Ttiment of meiH of trades i
iineir lav
M.A ' \.
served an upprenttcrship to by the space of
seven yearsi, had a Proviao, Thai a man may
use a trade that he had not served an ap^
prenticeship to by the space of seven yeara ;
this had been a void repugnant Proviso. Thit
is as plainly repugnant, that no body pohtic
shall be capable of having a sole trade. Re-
ptignant Provisos are in law void.
My lurd. If so be a Pmviso be repugnant and
contradictory, thru it will t>e void ; and so are
II, and to encourage j all onr books, 1 Co. 4(i Plowd. Com. i*63- A
I statute gives the lands of J, 8. to the king j
and then n Proviso eomea to save the right of*
I all person** : this shall l>e construed, hU peisons
I iHfsKles J. S, not to ile^troy tbe premises.
i I'hercfore when this act says, That all
I patents grantetl to a boily politic* of the sole
> buying, sellirtg, and iiKiog of any thing within
I the reuhn, ^Imll be void \ and a Proviso »ay»|
I That it shall not extend or be prejudicial to any
company ot merchants erected for theordcring^
I mamteoaiKH-, and increase of any trade or raer-
chnndixe, if construed in their sense, to give the
Om<u...v ■^nt* ii,jvr»-r M'lliiicr^and using of any
till (tictory ami void ; lh«tl
""♦ to restrain
and Htap'ft
tlMii a
oCfo^u m I
' und
^latntc
11* were for
, and good
, bill am to «ttabk '^ corporatioo to
that > . But taking it in tb«
other, which I apprehend to be the true aenat,
that order and government is protideil for;
that is the meaning of the Proviso, and nothing
else; and this Ls tlie general practice of the
todgtks ftud canipaoics albwed iu all tita«».
439] STATE TRIALS, 36 Charlbs U. l684^7»e Great Can ofMatufpelM: [440
But a sole trade, under the pretence and colour
of order and manai^ment, never, as I believe,
had any judicial allowance: and then you are
within the enacting clause of this act of par-
liament, and are a monopoly ; or because, it
may be, yuu do not like that word, you have
the sole buying, and sole selling', and sole usin^
of this trade, wliicli is contrary to the express
words of this act of parliament, and so your
patent and charter is void.
But, my lord, they endeavour to answer this
Objection with another sort of answer : tliey
say the Proviso is, I'hat the act shall not ex
tend to companies of merchants erected for
government and order of trade, but that their
charters, privileges, and immunities, shall
be of like force and eAect as they were before
the making this act ; and therelore, say they,
patents to companies of merchants for ordehog
of trade, if u;ood before thiL- act, shall be good
stIU ; und therefore, say they, this act cannot
hurt us.
My lord, the objection is uic^, as I appre-
hend, but so it is, if 1 take them right ; this,
under favour, is but the same thing again in
other words ; for the conclusion of this Pro-
viso extends no further than the chartc^r men-
tioned in the beginning of it ; it extends but to
the same charters (so are the ^ery words) sliall
be of as good force, &c. Why tlien what
charter or patent is it that shall remain as they
werebeforo the act? Why those that are ex-
cepted. What are excepted ? Those that are
for order and management, as I have before
shewn ; not those that are for a body politic,
to use a sole trade, that is repugnant to the
enacting clause ; therefore these, as I have
said, are not exceptt-d, or within the Proviso,
and so we come back again where we were.
Are you excepted out of the act? If you are,
I agree the act hurts you not ; if \ou are not
excepted, then you cannot be in tlie same con-
«lition as you were before, or as such charters
were before the making the act ; for the con-
clusion and latter pait of the Proviso is to be
taken in no larger sense than the words that
went before in the beginning ; nor can extend
further than these words extend ; so that 1 say
it retorts j ust back again where it was . 1 f they
be excepted, they l>e not irithin the act ; but
then the Proviso will be repugnant, as I have
said before, and contradictory ; if they are not
excepte<l, thev have no beneHt by the Proviso,
bo, my lord, taking it upon what 1 have said,
I do ho|>e that the words of the act of parlia-
ment plainly do extend to bodies oolitic, and to
inhibit the mgrossing sole trade oy bodies po-
litic. They say themselv<>s, and it apiiears
they are a InMly |>oiitic, and they have this
sole trade ; and so the enacting clause extends
to them.
Next, I say, the Proviso exiends to charters
granted lieture, not to charters to be granted
after the act of parliainent : and as to those
charters that are exceptnl, it leaves them just
M thejf were bdbre ; but if their sense takes
plaoey thea it it, as 1 omodf e, with nibmi*-
sioo, most palpably contradictory and repug-
nant to the act ; and then it is as lawful at this
day to grant to any corporation any sole trade
or manulacture, yea, downright to grant tbem
a monopoly, as it is to make any other grant ;
and so this would be rather a countenance, than
an act made against theni.
But then, my lord, they come to another
thing ; this is an infidel coontiy, this is a sole
trade with infidels, and such a trade the aub'
jects never had any right to have without the
king's licence ; and now being so, that dif-
ferences the cause : and to prore it, they die
Michelbom's case, in 2 Brownl. S96. wherein
Mr. Bro\«nlow bein^ prothonotary, redtei
what my lord Coke said in that case. That no
subject might trade into infidel countries with-
out the kmg's Ucence ; and his reason was,
because he might relinquish the catholic failh.
and adhere to infidehsm : and that he had
seen a licence in the time of Ed. HI. wbereii
the king i-ecites the confidence that he had i«
his subject that he would not decline his reli-
gion, and licenced him ; and that diia did arist
upon the recital of a licence made to tr^Mle M
the £ast- Indies.
And they do cite Cahrin's Case, in Co. 7,
Rep. fo. 17, wherein it is said. That infideh
are, in law, < pcrpetui inimici,' and hetwcci
them and Christians there is perpetual hosti-
lity, there can be no peace; and !« H. 8,
fof. 4, where it is holden, that a P^^n can-
not have or maintain any action at all, nop
have any thing witliin this reaius; and k
prove this^ Register 282, and 12 U. 8, fid. 4,
are there cited.
31 v lord, I have the more fully recited wba]
tiris Ts, U^ause 1 hope I shall give very full
answers to all : but, my lord, before I do an-
swer Ibofic Books ; First, Let us see what the
consequence of it will be : supposing tlie law
to be as these hooks say, and as thtfe gentle-
men would have it; and the conse<)aenGe will
be, that the plaintiffs cannot maiutam their ac-
tion, but the charters granted to tliera will be
voitl.
First, Upon the reasons given in tbsic
Books ; for if the books are of authority, the
reasons there k^^^" 'uust be of authorit v (savi
that buok of Browntow's). The king has m
care and preservation of religion, hy the lav
vested and re|M>sed in him, that the subfesf
should not trade with infidels withuiit licenof,
that they may not renounce their. faith; ami
the king will take care to give licence U
traffic, to such only as he can have confi-
denize will never \%avcr from their profession.
Siip)M»sing this to be true, then tlieir paM
must lie uoiii^ht ; for then it is only granlabk
to i»ersons in whom such confidence may bf
My loni, then see huw this will stand wii
their cliarter. Their (H)rporation a^ d body pfi
litic is indefinite, as to [K'rsous, and the mea-
hers changed crontiuually ; some sell ihip
stocks, and i{0 out, or die ; others buy tbiii
stockK, and come in that way to b^ menhfli
of the Company, or inexccttion to thoitdil
i] STATE tUlAIA 36 Chablbs II. l6S4.— HU E. /, Comfmn^f t, Smufyi. [44fi
tipoa wbicli lliift f rest miitter reli^i tu prove
Vim, TliHt liiHjk of Bi'oHtiiou^s is a book
that WAS printed in tUe Ute Um<**^ 'rHl n<>t
Uctnsed by any judge or pcnion v, -
bul truly I have |f»>t a copy, nod ;; i>
BtA\ of I he Case llici'c nporti-d ; « i ,
JSrIicb. 7 J&C, B. C ttyt. bjU7. ^ n
a^nst Batburst ; it b in a pmhiUiUMii, titutm^
fiirtl», Thai tbr kin^ had granied tu tht^ plum<»
tttf bis commission to «^o uitb the $bijt 'l*yi;er
to tbe lodie^, to spoil uud bupprea^ the (utidcU,
and to take from iiiem w hat hw could ; that tli«
plaintifT, in tbe probibilioo, bavuij^ ihi;! eojin"
mission trom the kioir, did tauter luto iittic1«?i
with tlte defendant^ to ^vt* him a share o( ^vhat
he should get in the adventure: and tbereuiMin
there «? as a «uit in the 'j.dii)ir«dty by the de«
feiidant, ag^aiost tbe plaintitf^ and he comes
and moves for a prohibition, sujjrg^^ting tliat
the articles were made upon the hiod, auil not
upon ibe high sea, and ao the court had no
jurisdiction. Now upon the debate ol* this
case, it did appear, there w9m a kind of letters
4d*mart, a commission from ihe kin^, in a v^ar*
like manner to npoil the intulels, ami g^t what
he could from them. But now, how this
would come in debate to make a llei^^tutioa
about the business of trade, 1 do not know ;
probabiy it might be as is there related ; but
vrbat is in tbf book is only an occasioual say*
in^^ of ray lord Coke's, u|K>n the motion for
this probibitioQ. So that a man that wdl laj
any great stress U{H>n sucli an autbonlyt musl
be mighty willing ; for it is only an CMH^asiofial
sayiu^f and uotbtng relating: to what was tberf;
brout^t iu judg-ment, which was dbc»ut a com-
missiuD to take away j^ooils, perhaps from
enemies, by letters of mart, not ab^iiit trade ;
and HO I boi»e there is no gi-eat matter in tbtft
report.
Tbe next case, my lord, is tb*t of Calrio,
where it IS said, thai an iuHdel is ^ per pel um
iHunUui* can matutain no action, or ba%e any
things; and that tbert; i^ [leipetnal bo»tihties be-
tween C'hriKiisuui and liueb^ and uo peace cao
be made uiih them,
My toiMJ, 'tiN true, that thin U said in
Cavilrs ciuw*.* But i mn*.t nSm say, »s there
was no tK'casion in tbe Ibrnier report fur
saving of that, uo more ii» there in Calvin*s
ca%c' ii#r*ayui^ of thi*>; tor it made uoLhiug to
the mattiir in ijtiestion abou^lie Put^t-nati, or
were they af»y wtip ltd to it, in tbe dtfbate af
that caiM*i tb»re was iiotlkuu? tberr in juilflf-
mt^nt that ipifc ooeiutosi for ii, so that 1 oiiiin4H
think It waa much coii«ideiud of U^^l^^reit waa
Hinikeu.
i lie i*ooka that are there died, f haveliK>ked
upon, to »»^e if they woulJ prove any such
fill'*:; a> they are iLece cjt«:tl tor, audi thiDk
•»o r in}, and all that
a VI fit of prolectiokt
wf new members arc ct ery year,
r jn ^ t • t »: xaimne, or take
[ ivs Is Im ssSisti iu«e are in their
illi^dsiij ^«-<- ;■• > >^-*d bow then can
tbfs k< osflUde^ io a UMJy politic, which
tb# liw t«v« bas niftllier soul ttor con^cJi^nce P
W kss coiiuileiicc can be re|>oi»c4 in such a per -
iirundlyt Bendtfi, it is not only the mem-
bn uf the Couipsuy, that at the time of the
iBW|PiiniiSii #fff> tocorporsted, and their sue-
mmmrm^ tlnil mm tiius privileged > but their
wtm taii s|*fi«eDtioe«, their factors and servanti,
b«c bemee hy tAiis patent to tradr there : and
•k«iBB«iity<.*3if ' ' * .bma;^not
iW SMVfniDf :e their re-
IpHlf UT lliia liwK i«i:^ u« lA u u^i uud prero-
|Mii in iIm: )^t)i^n to b« git en t«t such persons
■ pIiosb |1i« kiug can have c6ut)deiice, tbut
%y wiil ttot^ by converge with iofuliU, c b:l^^^e
ir|n|Uilice ihcir rr!i«i^ion. Sec lhi?i cannot he
fsit>J to al»<^ nid their successors,
stec^ iB4y ba« voce for ever; and to
liar mum. llArtor^ apprentices and servants,
pBmmm sltojipstlitr link now n« not bom, nor in
nirwB nAlMJ-A wheii these letters patent were
' tsyiHi, to trade with
•at tbe law hasesta-
' LtotJ prei i " ■ ,11 tbe
.ionof reh- rnsej
4i,i I* f*-i '>'■■ r.-|;^i.,i_- III you
«(l^fst-lndi» C' Uiit yon tshould
AMrs|siivru> i^rur.. ^..^..i:* to whom you
«0r JfiaU tliis is done by your patent ; fiu-
ilsfsffci*^»bv iwwer granted you for your
^l||ri (»r«andservsnts, which are
■«lL< , traelve^ nominate and ap-
l|«ilBl7»«*r iltivcteUNrnM, and undoubtedly very
I otliers that } ou brings into your
tht« pow*er that tou hjive ex-
'<^ horn
luse^
or
443] STATE TRIALS, 36* Charles II. I684.— 7)li; Gi-eaiCase o/Manapoliet: [444
^nnieA to the prior and brethren of the Hospi-
tal of St.. John at Jerusalem, and their a^nts,
it is said, That that hospital was founded in de-
fence of holy church, against the enemies
of Christ and Cliristians : but truly how to
conclude out of that book this, that infidels
should not have an^ pro|>erty in trade, or be
ferpctui inimiciy with whom no jieace can be
had, I know not, or that cau maintain no ac-
tion.
Then fo. 1*2 II . 8. 4, they also cited, that is
only this, Tiie original case in an action of
trespass for beating his servant, taking away
his dog, called a blood -hound : And there it is
said. If a lord beat his villein, or an husband
beat his wile, or a man beat one out-lawed, or
a traitor, or a Pagan ; they shall have no ac-
tion, because they are not able to sue an action.
1 must coufe»i, my lord, this comes in very
oddly, from a dog to a Pagan, and there is no-
thing to lead to it in all that case, that 1 can see ;
and yet this is all the authority that is cited in
Calvm*s case, to prove that they can have no
action. So that all that a man can make of
this is only discourse, and sudden thoughts and
opinions, and sayinpfs of counsel ; nothing of
debate or judgment in the case.
It is true, my lord, the Christian religion
and Pajg^nism, are so contrary' to one another,
diat it IS impossible they should be reconciled
any more than contradictions can be reconciled ;
but because the religious cannot be reconciled,
that therefore there should be a partition-wall
between us, as to property and ommerce,
perhaps is a doctrine as irreligious as can be,
and does destroy all means of coming to con-
vince and reduce them to the faith. But now,
besides these extrajudicial and occasional say-
ings in these books cited, which an* of little
authority, I cannot find any books or cases,
much less judgment or authority, for such opi-
nions in so great a |H)int as this is : but on the
other side, it a man considers the general cause
and practice of trade and commerce, and legal
proceedings in all times and ages, one would
think my lord Coke could not be in earnest in
what he lias said in Calvin's case about infidi.>1s.
Let a man <-onsider what a great part of the
world wc have commercf with, are infidels, at
this day, as the Turks, th;» Persians, the Moors ;
and otIuT plarch in Spai.i aiwl I*oiIii„mI -.vrri*
possissed by th»* 'Mc ;ir.s, \tliii won' infi'lvl*, li'l
about '2(X} yrius «ulo : for till tUc y iir 1 17 J,
tJie MiHii-s lind po>S4Ksiou ot' hoth \Uv>v roini-
tries for tlic .space fit' ruuir 70(» years ii-lorr,
and have we not aV.v;iyi. h,ni ii\;Iiin:r with all
those? Ilav.: wv. not Um,.;u<s nuil ti'cai'!(*s ultli
the pi'inees <ii" inii-.h ! «.'«M..Miirs.* Do wr not re-
reive amliaKsadors tivin t'.iri;), :uid send am-
bassadors to thtm, and nniiisuis r«<idin;i" with
tiitin ? nav( we not, trtiii linu! tn t inu , uimI this
in all times and ii^os, :iiu! tiiii! in t^iron Kti/.n-
betlf s time, in the be»t anJ nir;st rtiii^ious time,
for many hundLXMl years P Uai e wie not like-
wise war and peace with them, in like manni r
ai with Christian kings and countries ?
And let a uian consider the coiviequcoccs of
this doctrine. If thejr are perpetui tHindciy
then we may justify killincf of them, asthos«
wc are in hostility with, whercgoever we meet
them, and justify the taking away wliatthey
have from them, as 17 £. 4. fo. 13, 14, it if
adjudged, that a man may seuse and take to
his own use the goods of an alien enemy,
wherever he can find tliem ; for it is the priee
of his adventure to take them, and of his vic-
tory over his enemy, if he have taken him.
And 2 H. 7. 15, if an infidel bean alien enemy,
then any man may take away the goods of an
infidel, and have them to his own use ; and
this would be a good trade, if this be so; any
man may kill and beat him, if this be so.
Mr. I^licitor, in his Argument, was pleased
to use many ancient rolls and records out of
H. 3. and Ed. 1. and about those times, con*
ceminpf these princes dealing with and band*
ling ot the Jews ; and I believe he might have
cited many more.
Mr. Prynne, in his book which he ciBi
< The second Part of a short Demurrer to the
* Jews, discontinued and barred RemiOer inii
* Bngland,' printed in the year 1656, has a
long^ treatise, in which I believe an hundred le-
cords and histories are cited to this pinpose^
That the Jews did exact and enrich themselves
by usury, to the great impoverishing of the
people ; and that the princes of thMe timas
polled them, taxed them, and took away the
estates of the Jews from time to tiue^ aoi
thereby a man might think that these ki^gi
used them but as spunges, to make then gripe
what they could from others, and theu sipMMd
it from them into their own treasury : and it
j must in all probability be so. The story is
i true, my lord, as he relates it, and in the rolb
J there are a multitude of them cited to that pur-
' pose.
! But birsides Mr. Prynne, there is a statnte
* of Morton, ch. 5. made 20 II. 3. my loni Cokein
I the 2d Inst. 89 says, uas piinciiially designed
against the usurious Jews. The statnte de
Juduismo, 18 E. 1, nhtes, that the kii^i
I people hud lK>en disinherited, much injured SM
j inipoverii^hed by the usury of the Jew-S ud
I enacts, < That no Jew tliereafter sIkmiM take
* usury upon lands, rents, or other things.'
I And iiitli.! 2d Inst. .^07. my lord Coke, inUi
cornmeiit upon that statute, says. That 15,060
; Jt'» .H thereupon went out of the realm.
' Nil tlKa,niy lord, we do not dispute butthit
, the thct J lodged may be true; tliat the Jews
j lu.icM'xtorsive, and the king took away their
I •ish.-.is : hut liic matter is the use andapptiei-
I tion ot that i'act.
I Tor, tirst, I think if it he known law, ui
I takfMi to ht? according to any known law whidl'
I we \vd\ e, that they were as alii^n enemies, thai
as the king might take away their estates 0
thr subjects may take them away too ; so tbflt
is no such iu>e to he made of it as the other M^
would have, as 1 perceive. 'Hiey say u i*^
fidels the king would take away their estaM
because they arc * perpetui inimict ; and I iV-
ifthey wtre alien enenuee, then thesnl^i^
i] STATE TMALS, 36 CaABLES IL iGB^^The E, I CMpmi^f t. SMidy9. [44e
tii^ht Uke tbem aw&y too; for satUe book u^, as upon the kind's eneroj ; tknd what he
I can take from him is bis own acquisition, as
Htnextt my ford, I do use il another way ; ^ the price of his adventure, and conquest otot , (
his enemy.
The Books cited 17 E. 4. 3, and 7. proT^
this.
Gut by what m admitted by them, that they
were great usurers^ and had ^eat estates^ it
Latl tbcsn? dealings with Jeivs shew, tkiat
I not alien enemies, but treate<t as \
8, SO long" as the king pleajied^ For,
tlord, if I bey were alien enemies, and the
i they dte are true, as Calvin's ease men^
all their contracts and dealings \ is evident, thai they were here treated as aliea
pall absolulely voitl, they could never have
f property'. How could they then be guilty
liiiry ? How could any man living be ex tort -
9|Kia by thent, to pay any money due to them
contracts, or bargains, unlesi; these
amies : bow could they else in such multitudes
live amongHt us ? How could they be usar«r«
nod get estates, if they could not make cou«
tracts ? How is it possible they could preserve
their bodies or estites against the king's sub-
were treated as aUen amies ? How could i jects, unless they had the king-** protection
ibxy have the benefit of their contracts^ as
*^^ Ucn aiuies have? So that 1 take it,
[ strung evidence that they were treated
aie* ; otherwise it is impossible that
l»u say could be true, that they could
' ring's people by extortion and usunous
lets; when, acconling to your law, they
I not able to make any contracts, or have
ty at all : is it possible the king coubl
ly their estates timt had noue ? And
I none, if your doctritie be true. If any
o^i^ed theni money, they could not re-
r it, bec^ise they cuuld nut bring any ac*
and the king could not have it, because
'nict made with one not capa-
mtract. So that, my lonl,
, make use of, are^ I h(»pc, in-
tftiid strong arguments a^inst them,
— ^ They were taken notice of as alien
r of making contmcts, which the
s were never bound to perform,
t dvey were legal, and they obliged by
_ em b V bw. As for ihei^e ancient records in
reoecil, lime had bidden the knowledge of
Utelairs, and transactions of those times. It
ttibte to know what the laws and
t of those times were, or rightly to
«^ecii legal and violent acts,
r references from thence to con-
^ ncnt now, is ' nolum per igno-
iikc dependencies, which unless latter
Liujncurred or agreed witli, are only
»rder ami cunfusion.
But that which in deducible from
is not, OS I coaoeive, what has been en-
fctoorwl ;
ITljfli they badmo property, because the
nct*% of those times took Irum them their
iien they pleased, and ta^ed tliem how
"nil what manntr they pleased.
■' .iij« the reason %*as, that these peo-
f It^r the curse, and bt^ixig a vagrant
J^^iHi, v^jtliout head, prince, governor or
country, it was no difficidtv to tax or take from
at pleasure, being hated of the people
L* they hved.
liot, it c*udd not be as they would have it,
tbw they should In; ainun^st us alien enemies,
i«f in nlii-n enemy irau neither make bargain
, nor l*e capable of property ; •
1 -ubject may, at will and pleasure,
upou Aud tike all tbat be bas to bis own
and were treated as alien amies? And ©flatter
times, how many of them have Hved amongst
UK, driren great trades, have had, and have at
this time, considerable estates ?
Let it now be adjudged, that any man tliat J
will, may take away their estates : thai they
can have no remedy or action for their debts
owing to them, but instead thereof may b%
iMfaten or imprisoned as enemies to the king^
And we shall prohahly see, what the success ,i
of such a Judgment will be.
My lord, that they are taken notice of and
handled as other aliens, without any distinction
between alien enemy and alien infidtl, I would
offer this as an argument. The tptestioo* I
confess, is new, ami so tliere is not much that
I e^n find in our hm>ks about it ; but tlie Act
of Navigation made in the 12th year of this
king, a year before this charter now in judg-
ment before you, concerning trade, shews tljat
infidels have the same liberty of trade as chris-
tians ; that act being made for increase of ship*
ping and navijption (it is ch- IB) prohibiting
gi)ods to be imported by any foreign ship;, J
except ships of that same country^ where tiie
^oods do grow ; and distinguishes not between
mfidel and christian countries^ but expresdy ]
says, * That no currants, nor commodities of J
* tiie growth, product or manufacture of any of
* the countries, island.s, dominions or territories
* in the Ottoman or Turkish Empire :' and
does enact, * That no goods shall be imported
* from that country, but in our ships, or
^ ships of the country of which the guods ,
* are; and those ships to be sailed by a master,
* and tbree-fourtlis of the same country.* This
must be an admittance and an allowance, tluit
the masters and mariners of that country have
the samefreeilom and privilege of trade that
other foreign abeiis have; and shows plaiidy,
that the infidels of the Turkish empire hava
liberty of trzwle here.
My lord, the act for Tonnage and Poundage
has general rates and imfH>sitions set upon the
comtuodities of all infidel cnun tries, without
saying, brought in by, or with any manner of
distinction. Sn that I thinks that this opinioD (
of a difference between alirn inttdcU and alien'
cbri«tfanK, was not taken notice Qt\ nor koown^
nor thought of, till now : For, my lord, if it
h^l, it is unlikely the Act of Navigatiott
should provide aud ^ve aUowAnc^i foe tbt
447 J STATE nUALS, 96 CflAttSl It. iSU^Tke GretiCsmMffHUMp^
masters and mariDers of mfldel comitrMs to
come hither with g]Oods, when hy law ther
could DCTer come in, biit were enemies, aniil
to be kuockeil on the head if they did.
My lord, pray let tn consider of late thnea
what a number of Jews ha^e lived among na ;
should we declare this for law at tbia
day, that the people ought to oae them
as alien enemies, strip them, plonder them,
knock them on the head, kill them and alay
them, what would be tlie consequence ! WhiA
work would this make ! For if this be true,
what they assert that they ar^ perpetual ene-
mies, then we ran hare no peace with them ;
whoever owes a Jew any thing mdy play tlie
Jew tiitb him, never pay him ; whoe^'er has a
mind to any thing h^ has, may take it away
from him ; if he has a mind to beat him, and
knock him on the head, he may, there is no
protection for him, nor peace with him.
My lord, I do believe that it is true, that the
Jews being under tbe cui-se, and having been
a vagrant people for so lon>^ a time, and having
no prince to detend them, it is probable, they
have been made havock of, and uur kings and
princes have msidc bold to do with them ac-
cording to their own pleasures ; though what
is recorded of it, is so long agfo, that it is hard
to know the whole truth : But I think they
are no precedents to be followed now, unless
they had been folh»wed by a succession of
practice and authority in our books of law :
tbr otherwise many times a man might argue
nfold books from dark things to darker, as
long as he will, and never make any thing
<rliar. In the case of Southern and How, there
was occasion for this to be taken notice of, if
this opinion had been true law. It is reported
in 2 Cro. to, 469. A man employed another
to sell jewels in Barbary for him, and the other
])crNoii did sell them as true jewels, when in-
deed they Were counterfeit, and not above
100/. value, to the king of Barbary for 800/.
and thereupon thekin^ finding himself cheated,
imprisonctl the plaintiff that sold them to him,
till he repayed him his money ; and he brought
an action against the person that employed him
to sell them. It would have been of use in
this case, if the contract and sale, and the law-
fulness of conversing in trade by Christians
with infidels had been questionable, for the de-
fendant in that action to have urged against the
plaintiff. What reason bad he to sue him ? For
what had he to do to go amongst the king's
enemies ? and he ought not to recover damages
for any such thing. 1 say it woutd have been
of use^ if any such point of law had at that
time been thought of
In that case, it was of all sides admitted, and
not so much as objected, that this contract was
void, because the king of Barbary was an
infidel.
8o tliat this opinion, that infidels are perpe-
tual enemies and in perpetual hostility, can
maintain no action, nor liave ady property
tmongrst us, has no authority for its foundation,
extrajudiciil aayings, withont
but only
and H ft 1
continual practices of princes and p
t
Pferinpe it i« no small nait of re!
men shoaM speak, atid deal plaiid;
rightly one with another.
We know that 'religion too oftei
made a ekiak and veil lor other tahi
poaes. ItsboiridDotbesOyaiidl bfl
be so used in this case.
My lord, the statutes that I hare
have made no manner of distinctic
infidels and christians in matter of i
it is hardly to be thought, espedaHy
of the hitter ones, but that there was
infidels then ; For it is scaree to k
that our princes abould go thither
swords in their hands, to make war i
and afterwards to make peace with
no notice be taken of the law about
cerning infidels.
The statutes I have cited of Hag
cap. 9, e. 3. 25 E. 3. 9 and 11 R. 8.
and enact the freedom of trade, in ;
words, except only such as are i\
the king: Innoneof them is there :
tion of trade with infidels.
Can it be iraflginedthat in those d
no trade with Turkey or Barbary' ?
went with armies to the holy land, a
hath made war and peace with t
Had we no trade there but with our
But to look nearer home, Spain i
tl were infMels, and in the ha
[oors, in the year 1494, which wi
Can it be thought that in all these
twecn Magna Charta, IT. 3. and £.
no trade with Spain and Portugal f
Stat. 12 H. 7. cap. 6. was made i
1497, which was but 23 years after
were driven out ; and in that statute i
that the merchant adventurers, d
divers parts of England, out of L
shew, * That whereas they had the!
' sage, course and recourse, vritk tl
* wares and merchandizes, in divers
' parts beyond the seas, as well into i
* tugal, Venkx, Dantzic, Lapland,
' land, and divers and many other i
* countries, in league and amity
' king ; that they were imposed i
' company of merchants inlLondoa,
* to pay cTuties.'
I only make use of the recital, ti
free passage, here mentioned to
Portugal, and to other regions and
There is no distinction of infidel coo
Christian countries, though Spain i
gal had been so lately infidels. It k
bable the trade they hadthen was i
and Barbary, as well as vrith Vt
words ^* other regions and couniriei
imply as much, and the freedom
that, I think, as to this objection, T
are p^petual enemies, that we ct
peace with them, nor they maintain
or have any property by o«r lair;
t
STATE TJUALS^ SSClUlti^ IK lenu-^Thc £1 /* Cmpm^ r. Smd^i* [450
J W mmMbmkmm^ bI mil.
H»tfyc>ift»,i» wyll tijr pritiocs si
Tlieeon-
IV curiflrji llul they h&vc cited to Bur
tmj avd ctfMr pbciM, tiHiK* tif them are Mufi^
la^iaflms and im^ae
Hkn BOlicrof ibf^'' ''^ ^" ' ' I ^ '•'[;"': uid hi-
Ml niwiliw* ; ftt> tltftl, ui> kird, tukiri|r ulf
^ tylliiT llie %ht, or at hmit ibr weak uuUio-
^^^Hlii JittMwtitiii of infiifi 1 m CJlinstmo, in
^fmUwmd^ r^ : ' > dv Imt Itttlc ; anti tlje
■ mm
nmOi
mit tim<», wJierdn if e
of
■. ... .i^.:^ ,:j i....tii.iii]eiitf
, secaii to be a [jracfi**-
«*uvitiirs. Umt arc pir-
< .illiolic uu-
r;iiher tban
ibiit they can he
'ti«*n; einKxkilly
U i*utlujcal^S!9 I naiil,
vunJ 4ih*s time were
by imin*'K aii*l yet i cannot but
Ifcrj must he tmdttl iritJi, jiBii uo iiinit
wi tty Uuiftg of die tiiatiaolimi btit uuly
■A^ dfcwe occaaigiiftl mymgn in Calvin's
ilir»v( tht**r
LL
I 1^ MNli.
■i (mni <»f tnuling with or without
cii I menlkfiMftl M'grc) liow it Will,
jtoint wijj iK»vc*r be Kutfi-
! :i.L> snma m\c tni«lt% or to
b • iii^wiyfity it|ion ; that etinnot wjurant
t^ mm»Ut\nu\i% sole buyint^ antl soli^
r to be ifraiilcti to you anu your suooes*
w •■»« lermcitif^ a|i|>ientict^ factors,
L m ymk nknli heern^ for ever : There
I i^nuuin perjietoity, nt^otily to
were, but to tbeir sQia aod sue-
I ibftrntr whom they vhiiU Iteenoe ;
> • f cry gre^ pan ol' the world,
m sunr rctaon all Tnrky and Bar-
I MTl of iht' West- Indies, and
v&iiLt^ IjemoQopolijced;
kail Cbii uhu^
»«f mvoopr i allowance
» iir oa^niApoltr ^1 countries;
IpiiAall mUm buying, taie seliiog, or
\ af aar tbiii|r.
I TavCy uada was used long before
aa bf c2t«n«r, giaoted !id £uz. Bo
ftawbav fiaile, a« by the charter
mk I biiafvio tbe Eattt-ludies also,
■ iBtale •ToMiQapolica baiii^ so ge-
mymabl y ooutniable
J ontof Oiaei^Bot 0f tbat
k al pabmta thai inay be granted
I af aHHKpotiai, are by tual eoi*
"» ^was «il of tbe atetnte) and de-
l^ ^a ■pBfiwmg an gr«ai eirila aa
■a, aM alwaya bafe been ae*
•^ Mlbc BfMeA ti|>OQ iBjte'
ginarv difTerenre in law, helwixt itifulel and
Imlteic, )ur the Wetti-lodit's, L thiuk, the«
grpaiirr inirt are Pagans,
My lord, I liaie looked over the cases that >
wt^rc here, and the Dc4)ati'!i that huvc l*een
printed in Sd and 4th of king Chark^i t, AlM>ut
the kiug*$ poM cr of iiu{>o&4ng rute^s and iiiiisi* .
dies, and iinpoJ»iliuus ujioti nieri'handizea, in <
Bates's Caie in the exchi'^ucr, 4 Car I. 2
lo&t. 63, and Mr. Ha»liwottb*s account of the
Debates in parU'^uncut at that tiuio about that
tnaittT: niatiyihti * ' Mft|^
the king ^s powct isjjf
oi'tiade, auU the ^^m A»f » itar iL<^n ^/t, .ind
from tlie^e reason^i tht^y thai ai ifued fur the
king", UFj^e rcasonubl^nf-^s id invno»<stiTinH upon
niprrhandize. That cn%e arose from an imoo*
siljon U|>on currants, and metliinkv il tiure fiud
been known any %uch distinction, aa thi'y
would iiere in«tn\tatef it had been of ^f^at use
in that oaae as w ell as tliis ; but ihioughoui (he
ar^imentv and rt'a8<.ius ttiere ilehaU'tl, they did
never make any lii&tiikction tfctwctrn infidel and
christiau, bnt uatirrc and foreign cotmnoditios ;
and did endeiiTour to have a prero^jatiTe to
iutpoae ratfFi npmi lit cm : anil the re anon ti wera
tlMMie, and all tUo iir^rumcnts rnn thuji: The
king' can prohibit and rc^tr;iin any iDerchanitO
^ouut of ih<'coaniiv hv writ, Ar / » R.yj.
uuNi ; the king; c^n proliiliit uuy la-
rmvdities to beiinpin'ted ; then n^'L _, .ml
without licence, nor import without itc<*nce,
and con^nently it Ih a le^ thing, wht'n thia
licence is grant*,^ upon the pa^nnent of such a
duly or iuiponition, or undor sttch a ralcav can
be agreed m l>eiwecu the king and the incr-
chimt; and therefore Kuch an impoaitjon or
farm is lawful.
These were the arguments in thai caae, and
in thcae argnnienta it i ' ^ i ' lint
in con«6qnenee doe^ ini i m,
foi a dispensation withiii.-« »t>i. <«,*...
For if liccM3ces ito i Lvpiisiie, it is worth con*
sideration, w hcthcr that will not intrudui^e tba
inipoyrng of ratt^ wiihout parliament, or other-
wjse tlian in a f^artiam^^ntary way. This, t
tay, is worthy eonaidermtion. Muppoae it tract
there have n^fcn licences to go into iulidel
countries to trade ; so there have been to gn
beyonit the seas, and Itavebeen to other traoe
beaides thia : ytft at does not follow as a trua
consequence, that tt ta unlawful to i^o or
trade without liceiuxm ; mucsh lass doea it ltd"
tow from tbcnce^ thut such a patent as tliia tn
any one or few subjects, or to such a c<»rpn-
t«lion, tn bare the whole and »iok! tr»dr tuUt
any plaee, and power of hcensiag otbe(»i am
be warraiilaibyit.
I do not fOMkni bat the kiag may r^atraui
the paaaagn oToict^hsnU and merchandise in
some caacB* and to embargo ships in
Ent tiieae are tipon special
L In the irate ol' war
ibl] STATE TRIALS. S6Charlbs1L iSM^The Ortai Coie tf Mm^pOkB: [tSff
8. Fn die case of such merchandizes as are
n^oestery for the defence or safety of the )ang-
dem, to' teMrain their exportation.
3. lb case of a plague from particular places
to imfiort.
But then these prohihitioot ire f^^eneral, and
their particular reastms and grounds aie ap-
parent.
But if nrtder any pretence any sole trade to
sotne one person, hody |)olitic or natural, be
granted, excludinpr atl others ; that grant, I
conceive, is in d^eit 6f the king, aud to the
prgudice of his snhjecfs, and roid.
Never has such a grant hitherto had any
judicial allowance ; nay, so for from that, that
as far as I could observe, no opinion has lieen
till tvltliin four or five years, Uiat such ^nts
\ftt\-e giK)d to exclude others, nor aiiy action or
suit ever adventure before now, to be brought
upon any such gronud.
80 that, my lord, as to this great point, both
the old common law, uiid the old statute law
and the statute of niono])uIic8, with submission
are a^inst this grant of the sole trade ; and
the distinction between infidel countries and
ciiristian, is so thio, and upon so weak a bot-
tom, that I hope it will never be strong enough
to hetac the weight of so great a consequence as
this is. Forthoufifhat present infidels be dis-
tinguished from christians ; ^et from their ar-
guments anil kind of reasoning about restraint
of going beyond sea and trading, Spaiu and
Portugal may be brought in, and France, too ;
and so the argument will run from infidel to
christian at length, and I know not whei-e it will
stop.
So I humbly leave that point to your lord-
jilup's judgment, whether such a grant of a
so\e trade appears to be such a grant, as is
good arcorcnng to law; and whelber or no
notwithstanding what they have said, it does
not appear by the old common law, and the
old statute law, and by all our late acts of par-
liament, to be in law a void grant ?
Tlie next thing, my If^nl, I come nnto, is
the scccmtl point, which I shall be but short in :
about the first, I have taken up ihostofyour
time, and I beg your lordship's pardon for it ;
because, if I mist-ike not, it is a most weighty
point in the consiijiicncG of it Kut then Mip*-
jposingond admit ling their urant tt> lie n good
grant, whnhoror no, cau\ou mauitnin'this
action ? If the bw should 6e so, that the de-
fendant ought r.dt to have traded there without
licence, tliini he inny Iw punishabh* at theking>
8uit,bv fitie an.I iinprisimmcnt ; but that you
Sho;i!d miiintnn ^n action :i^^.:nst him, \vhat
cause of acti«»n, w!):.i dutiiage or loss to you,
have you laid in y(»!ir dcrlaration ? You say
hi your decliiratiou, that the defendant Sbndys,
notbfinga ir.nnJjorof your company, nor a
Son, factor or scr\*aiit, nor assign of yotir oim-
|mny, trailed into the East-TntSfS in "the places
within the limits of yomr charter ; and has there
bought wari's, and bargained and sold mer-
rhandlces, and imported and sold thcih in
EnglaDd, a^insl tlic will of the Company, ted
to their prejudice and impovcriibmeiit, 1 „
the form of thek charter, and to the Company '•
damage 1000/.
Fust, You have not alledged in all joar
declaratwn, whether er no be bad a hi^nea
from the kmg, and that is nought : for i think
though the king is pleased to say in hia letters
potent, he will not grant licences without Ittnm
of tlie Company, yet he may do §•, if 1m pletfa,
notwithstanding f iiat grant.
Secondly, Then yon have not shewn uy
loss or damage you have had by hia trading
thither: did Ik: bny so much of the merchan-
dize of the countrjr, as not to leave tbere snfi-
cient for you to furnish your ships wiilial, aa
that they came home empty ? No inch tMng
is alledged. J >id he hence export to sell there
so nnich merchandize, as not sufficient left
for you here to bny P Or, did he bring home
here to much, as that there were not ^OYeia
sufficient for his goods and yours also ? There
are no such things alledged ; or iathe truth sa,
as tliat hereby ;^oar imposing yonr pricei npan
your commodities, selling at ymir own pricMi
and exacting what you mugbt fit, waabin-.
dered ; and for this you wouU
action.
I think it will be the first Ikne, that
man recovered damages for
from iroposiog and exacting his own prices, or
having the advantage of his monopoly^ or for
anotlier's having an earlier or a quicker tnday
and under -sellmg his own coroaaadiliea and
merchandizes lower than the plaiwtifc aaa
afford them.
You agree by your owa iaetiratien that
there are many others that are ooaeefnedas
well as you : you say, you have the aolo ftadt
to yourselves ; your factors, your aai>anii and
your sons, as soon as they come tvtareuty-
one ; all that are of vonr Coro|nuiy, oUlhBt you
gnint licences to, all that yuu ahatl areigtt your
trade to ; all th<»e have an interest, if yon ean
maintain an action. Other people have tmda
thrre as well as you, can they maintain an ae-
tion.
A comiiYoner may bring an action npm
the caw against a stranger, tor putting hia aallk
into tlie eoinmon, provided that thecomsMM
thereby be impairra, and the oomrnoncr bare
nor sufficient common as befbre, and haw 0
dauiage, otherwise he can maintain no nelMi.
In itobert Alary 's case, 9 Co. IIS. h ia Ihm
resolved, That for every feedmg Of the ~
of a stranger in a common, the
not have an assize or action upon the
an artion does lie, if the feeding be
the commoner cannot have common pattarelbr
his own beasts ; and then it is the conheqtirefe
the loss of his common, that giv^ hitncnuitw
aeliou.
It is not alledged m the declaiaftkm, Ml
yotir trtide was any thing the Worae. 'Ifa
ilaroagR appears to you by it : what tpeM<»
thkt you should recover damagea, wfteiv Jtk
l.avc'uot sustained any loss P uidyoa-hsvfrd^
itdj;^liOB6byottr^MnratiOB| hffmtmfm
\] STATE TRIALSp aCGitAatu tl. JfiS4.<-*7l£ E. L Ompint^ t. Samf^i. [4$4
i h^ §9qA f ^ il tiiaB canlMtis no cauve Aicts ; 90 thai this ti( ti«n <^iitiol» «$ I ciuim^t
Y«u slMMild WMir, If you wotild bftre in^tie a
teiinlMifi^ liiti ilMiuW biTc luttttMt you to a
f^am «iCMioo« kai»« sImwu bow )o«i ettilfcrod
ly Sbo^I^ « ^irQf»ir«r IruliTtLT to ilu' East-
J ootiKI
•M biatt Ufti ' ; 0 you
%i0Hi my lii»^ ^»J u aie ill
yiur 40Bljii«l4(iti : k^jw 1 1 ] , that
iIkvv no csa«e «<i firiiOH
(n tbe cxsr of Moei i8. b.
■ftUiAbr. Ulpfljrt. !^ oiut iu
dacstebalitll :i> : that
_ ikr n«tf i' '"le
and MMiioi; ']
liOwcy fwr l2)^-;j
B 1^ emm^ ihoo^b tii
it wi» s iiiioCi)Wily, mal ti£a4!iit voi<J : that ii ilia
mmm^ hmd barn fs^tM. yrf do action would
btefauoa^i' iuponit*
My lunl, I) Ls duebreil to be
M IliiftI CMPe, Hi lilt- la>i point rL*!>olirc>i) by the
UT tiiai EU:tiiin wouM fioi lie lh<?rei this
ani be ; mpposbg^ his ch^rtiu' to b« ne^er
uftN4»«iid lb« 4diettflatit has (iDue comrdj-y
liA.
My brd, tliisrs U ojsly od« otLer n t^n (ov
•lis llNt actiou ^viii u*,» h»> r.n,i t)|,jt j^
ll|>aii tlR' <y nni
i yo4j, I I )f, it is
Intety , but .mj^ iinHh grat\Uii\, that \on
I Mlbtvc till' stik tni Je ; and that no oiltn
■ IHiSiinM Imi* tli«r«t, under (lahi o( forfcUiQ^
H ^ii^ IT^*^ f <'"^' b'^^f ^^ (1^^* kiri^-f iuuilhcr
^■*lMtti llie c-ompaiiy. ^ ty Javd, the
^■'•ordtn/ rrslmuit :uv i' % but aoly
I Umm^ my kii tltis patoiit
F H bi»» aii Mttt iuTLv a iin • 1 hit tUey can
irtitf' poitanuwl, penmii ^ ...auner^ tliut
M 9mitwm ttU pervucis Jroni trading to the
£li$^lWi«^. i ^Lt*, i,t iht Company J t>r»ilti^ f^'in
{[■•tlvis. umgiiufihi 1,
■10 taJE« t4 in tliai niuiiier as tbe aei does
Ml bive any atber [letialty
but irhat the luit ^ives. For
Hw t% m;id«?, you must tnke it
o " lor new law
Au Co. 37, 11.
16f aiiil ^#f I'louu 1. 0111. yuo. it oatiuat be
abrrad witb^iH a disw hw.
Aad 1 itmM bot only auppoie u}iou the sta-
Hm jif R4iir. d, Umi grivc* the ov^net^ ot tubes
lnbl# ^aatgia a||mMt bim that sets them not
l«tk 1 a ngsA bfing'i an action ti(iita the c3itt«^
^^MM llial be arnli f ISio, h«? tuust talu: the Uvy
^^^Bbfi mfib am aiCtio«i iieter waa borou|rht, nor
^^Bk|r^ ^lOmhi b^ OMsotHiiKMl s yet b^re the
^ '^BUlii aiv fpi'stt to Iba pai ty .
IW bba oJ all a«li«r (leual itutuuai, a inau
Iba fMualty ib« ttiisiiti^ ia-
not the sole :
>ou
besides yoiij
vuntii, aud soni» are to
not luid auy piuticuhn
cannoti by the reason '
maliitiiin a,ny »tieh aen
And iryou will take ;ulv.iul;ige of tbii» gr^Xii^
it is reasonable vom sboubl take it as tlio i^rant
Iftves it, proceed lor the toHeitme of aUiy and
goods $ but tor tl»e action of the caso, yotir
charier does not give it ; nor, ii'an act of par-
Itmijent bad been pcnofd at'ter this maimer^
would iiiich atj aclioti have Jaiu.
80 that to coi^kciudei
V\\^t, That thai which thb Coropauy elaimti
case by this patent, lo have the mle
' ttie East- ladies iu Uielr [K)hiic capa-
e, iug' others, is a Mouopoly* and m-
|q» -cua(»t the coromon tnw, awi the
aiiiieiit ifeUitutes, aod theStattite of {Vlonopolies,
ii JojOoU, and there tore they have no right to
ha^e whul ^) 1
1 tlu' defend ai>t ba^ diii|e
MluUy dune, ajid iberelbre
hiL'condly ,
in thiiLa ^ . I , !
jlOt to Ij-' j/»M.I-U'_'
Thiidl^>, ih^i
lawful chiiiu to t
iij ihcir diHilaraD^
ujfler, aa
^. . ,. .,,, .....: ,..^ iklead-
aut done vvhat he ou|^bt iiul» yet Lhey canHot
niaintaiu this action.
And upon tlie whole matter, wbeitier brs^t
for the CunipaDy to liAvejud^ient Iim' liieni
or a^^in»it them, may ilexerve tbeir Uiou^bta*
Jiut U)i«i being so gi'eiit in the co&at^fpieuoe,
as the whole tt tide of the kingdom UejienUiiig'
upon if) 1 ha%c laboured Uie more,
Theantient lawit^ the autieut vvaya* in uhul I
endeavour^ and ai^iuKt new \sayb upou or^y
pi * ^ it!soever.
ire, aiy lord, 1 hutubty br|f yottr
juu-.M. .... iMi the iklendaiit.
Lord Chief Jutt ice. Do yoit intend to have
another Arg^nnient in it, geutleuien ?
&iiicu^ GtncruL U bat your Ititrdabip
plcaaet*
I^rd Chi^' JuMtkc. It 19 a case i#f great
wet4ht and consequence, perbaps, as awer any
case^ that liaa coiue iiuo Weatmionter-HaU. I
must n3e<l3 say, it l^s been extraordinary wdL
argutd on bcHh sides -, 'nJ it must Lie 1
sardy tuken notice of an a point of g^reatca
liueuic, w herd 11 the kiog^a pi-erogative,
the privilegt,^ of the East- 1 tidia Coinpjmy ^ 1
this j4.>uii' trade, are concerned 00 the out a *
aud tlie b«iuriit of particular persons, and
hberty ot tree, uncontrou table tradtttg ia ooa*
Ctrjrueil OU tlie oltirr: :ind it l!i ttt thure hhiiuld
be ali the eoi , and all Uj >an
uponau^atie, rc«l mouK'i; , ^vi*
biy can be. \ mauuk be ho wimderliilly oafi*
ti7at«a nith the dLllcreni;«», that hare beaa
iiia4a betwcaa tba cbact«r to tb« £aia*ioiia
455] STATE TRIALS^ 36 Charles IL l684.— IXeGrMlCm^JllbMjiiifef: [450
' Compmny, and those to the Tarkv Company
and tne others; and though I have heard mucn
in the defence of Charters and Corporations, I
am of opinion there is no such great matter of
commendation due to them : but I take the
Common lair to be the best law in the world.
For that Charter, that you Mr. Pollezfen de-
ftnded here so strongly afler judgment ^?eu
against it ; the corporation became as invisible
within a few days, as you say Ibis was, no
duns could sco it ; though there were duns
that went to wait upon that corporation, but
came away as empty as they went : and I wish
the duns were like to be as well satisfied from
the one, as thev are from the other ; and there-
fore there can be no great matter in that. But
there is another tiling that very much deserves
consideration, it is a question wherein trade is
mightily concerned : we know we liavo a po-
tent neighbour, who has both experience and
industry, and are our rival in this trade ; I
wish we had as much industry, and were as
diligent as they; they have found by long
experience, that a Joint-stock is the only way
to carry on their trade,! mean Holland. And
it is rery well known, if it had not been for a
joint-stock, the trade had never been so l>ene-
ficial as it is. And Mr. Sandys wouki not
have had such a desire to the trade, for it
would not have been so well settled and fixed ;
and therefore, I take it to be a wondertiil thing,
and to carry a great consequence in it upon
that account, that we should consider how this
trade comes to be so great, and so desirable.
Now that by the joint- stock, and industry, and
expencif of the Company, tlie thing is become
facile and valuable ; for pailicular persons to
come and sweep away the advantage of ir, that
ought to be well considered. Mr. Sandys and
his partnci*s arf" very zt'Rious now tv) reap the
fruits of the (.'ompany's labours. But sui»p se
consequeooes are not one way or other to ov«r-
rule it. The main point triilv is a point of
great constderation and weight; per naps as
considerable as ever any that oaa come in de-*
bate here ; and therefore it is fit, that all due
deliberation be ttkm to have it debated.
Mr. Just WUkins. Mr. Pdkitfen, you seem
to argue that the king's grant to than isa void
grant, and against common law, aa being a
monopoly in granting them the sole trade;
then that does not come to the point in Michd-
boume's case, about trading without Jicence
with infidels ; and therefore you go upoa an-
other ground, thui what Mr. Solicitor did.
Mr; PoUerfenfl go upon the particular ease
here before you.
Mr. Just Wilhins,' And yon have not given
any answer to the Petition of the Commoos,
cited by Mr. Solicitor.
Mr. Follexfeiu Truly, Sir, I think, it does
not need any answer ; for I go chiefly aniMt
this grant, which is against law, and void.
Lord'Chief-JuUke, Truly, Mr. PtoUexftn,!
am not much in love neither with your othv
point about the action ; for what became, pray,
of all the actions tiiat have been brought upon
that statute of monopolies, by the patentees af
new inventions, as there has been muhitadw
in my lord Hale's time, and at all times ?.
Mr. Pollejefen. In that case, there's nobo4f
but the particular grantee, that has that inven-
tion; and he brings the action, liut iiere, af
your own shewing, you have intitlcd othcn to
the trade, as the sen ants, and t.^etoray and
children ; and tberetoru you can never have
such an action.
X. C. J. ^\ hen ^viil you have it aigufld
again ^
Mr. Pollcxfat. ^\c shall he ready for the
defendant next term.
L. C. J. That is a little too roon, thcreiafant
a very slioit vacation, ami that is but a diort
this question should be asked, Will you l>c eou
tent^ to come in and pay yi>ur proportion r>f j term ; 1 think you had best have
all the charge these people have been at, to put g'umcnt in Michaelmas-teiin,
the trade into this capacity it is in ? But is it |
fair, afler they have reduced it into so ijood a
condition, at 'a vast expense and trouble, for
othcr particular persons to come and suy. Let
us have the benefit of it, that have had nothinic
of the burthen and eharcre? And then there is
another consequence of ^reat concern ; peace
and war, no one doubts, arc actually in the
power of tliat prince and people with whom the
trade is. I would desire to know, supposing,''
an injury should }k> <!cMnmitte(l by any parti-
cular person to the intidels, and the '^hip get
away; will not all the rest of theCJompany's
stock, being of the same nation, be in danger
of suffering by itP Certuinly it would; and
therefore since they are likely to answer for the
wrong, is it not fit they shd'nld have the ma-
nagement of it ? So wc may, if wc come to ar -
f^ by consequences, easily find out a great
many inconveniendes on both sides ; but they
are not to over -rule the law oneway or the
other ; they are specious pretences by way of
Arguntot, but the law is a certain rule, and
iS»/. Otn. Yes, if your lordship p](
.'Mr. PoHcrfen. What your lordship
ue shall be ready, if your lordship
hear us next to.-m.
L. C. J. I know Air. Sandys is in very greit
haslc ; hut the zeal anri transport of any parli-
eular person must not think to oblige us to go
hand over head in a case of this great weiglt
and moment ; there is great coiisideratien te
\u: hatl of the length of* time that this Company
has coniinuf d ; there ha.^ been an East-India
Com|iauy in kini>^ James^time, in the late king's
time, and in tins kint;*s time.
Just. Uoilozcay. And here is a great trade
bctthtd, wc must not destroy it presently.
L C.J. We must not gratify the anl and
transport of Mr. Sandys, by being over-haily
in this matter.
Mr. Poliexfen. My lord, we shall be wcB
content to stay till Michaelmas Term.
L. C. J. Ay, I know the counsel will ; M
whether your client will or no, I cannot wd
tell, nor do not much care. Wdl, mwil
MR. ATTORNEY GENERAL,
StR Ro£UlT SaWYEJL)
[!? ARGUMENT*
s Got em or and Comi
ti^. Thomas H&nitys, UefenttauL
! i&imnQ S, M*cfiaelUi Anno Rcgai Regit*
w^ Lav. 2. xxjti. a. d. 1684,
tomy :
tSI] STATE TRIALS, 56 CmaklesIL i6U-— The E. I Cmpan^ v. Sandtfi. [458
cnaidcf oT it» mm) bear anotber argutiient iu culn, as I hope to shew ; 1 iliall, m exatnin-)
Ifidiaeitiias-Tertfi. ing Into tbe point, use Uie utmost eatition, bjf '
averting the kio^'s juit prero^ritive in thi«
matttr, ami not to depresa the subjects tra#<^
lilwity of trade.
The subject matter cif t\m question, onlj re-
lating to a toreign trade with Itifidels, not ii] j
amity with the kiug of England, <loth not oe- !
npuTJv of illerchants of j i'*?ssarily oblige me to enter into the consideni*-!
the finsl-indies, Plain- *«>" of 'any other trade, or of the king's prc« I
■ " rogutive, or the stibjects liberty in relatiofi f
thereto.
Wbicii would much shorten my task in siin* j
porting' thi^e k-tRi-s patent, and tb«; trouble tn# j
court 18 like to receive thereby.
But becaiiflc the gr*?at torce of the ar^ru.
ments, made use ot on the other mde af^amst
these letters patent, haTe been drawn from
principles and preceffertts? of law, which coft-
bcforethe court upon the PUintifls' cent iks wdl the itdaod trade and IraHic of this
kin^ilom, as with oiher Christian nations in
n|>on the cii^Je bi'ouijhi by the
.1 tlic Uelf ndaut, fir tradioQf
SI i 1 lilies cone rary to their tjram,
of ihejt trade) aoil to their damage
Utmt 10 the detiendant's plea of the Statute
Hie nsoord having been bo oflen opened at
drgi:, I oliaU only put it as a case upan the
Neord*
^ The kinp by his letters patent, 3tio Aprili^:,
IS Car, ?, rec^tin^ that the Company had long
leompany, and enjoyed divers liberties
Cfilc$r^ under tlie charters of queen Eh -
I ami king James, gra^its the Compntiy
t^mlm trade and traffic to the Ea^t- Indies
heior an Infidel cooutry ; with a pFohdiitton
to all others of his syli)tct5 to trade thither,
tithoot the leave and Ucenoe of the Company.
The Defendant not quali6ed as the charter
^4irecta, without the leave ot the Company, and
t their wills, trades to the Ea&t-fndtes,
» the prejudice and damage of the Company ^s
I this case, the points which tiave beet]
land argued, are two.
f baihrr the letters patent i^vto^ licence
" oy to trade into the Ea«t-liidies,
\ the sole frsde there, with pro-
other subjects tu n^e there, be
^lawf
I ^f. lu^r tdintttinf^ the patcnit good^ this
i the Coinjiany ?'
'[ the 1ii%t ^K)iut, t si tall not go
L to mairiiam the vahdity of these letters
|iARit| or any such of like nature, to bind up
^ kmg fttim gmnttng licence to other of his
^Ukjceti as he shall pleaae ; but shall content
^ttymWy to shew thai all the subjects not Ii-
by tlie kJJig, nor authorized by the
n patty (as the defendant is not) are bound
► letters patent.
r'here the question will be between the
prpro|^atJVe (and that in one of tlie
I points thereof, which conceras the de-
1 pral«etioa of his kingdom )» and tlie
oiirse with forei|;Ti nationt^, on the one
i ; and th« gfeneral liberty of trade, which
%s a tender point, and merely concerns the iu-
^^erest of his subjects, on the other side.
It therefore being a question of great cotise*
^[o«D«c, and of greater consfquenoe than difh-
amity with the king of England, with whotQ '
leagues of commerce have been made by our j
kings ; or to whom a comur¥>n trade hath been ]
laid open by several particular laws :
It is made necessary fur me, from tlie other j
side, a little to consider these trades, aud hoir ]
far the subjects liberty or the king's pierogv* '
tive he concerned io them. '
Whereby it will appear, tliat the argrutnents]
and authoVities produce^l by the deieudant'sj
counsel, will lie of no great turce to imjteacti |
these letters patent for the mauagemcut of m
foreign trade with Infidels. I
I shall theretorc briefly consider' tlie inlandl
or native trade within the kingdom, and 1
the foreign trade with other nations.
The inland trade is either tor nianufactiireg ]
or merchandize
Under the trade of manulactures falls in lli^l
husbandman, and all sorts ot' artificers; whe]
have full right by tlie common law, to eYercwie-|
what, and as many trades as they olease; sof}
as no annoyauce-liappen lo the iieighooiirhood;
and with theite the king's prerogative is liltle |
concern t^d, it cannot restrain them, it bein^^
their livelihood.
Nor is the public weal otherwise conceme
llierein, than that all its n^embers should live!
by tiietr honest labour and industry. As to thel
Imde of merchandise^ or inland commerce
every man (t^enerally speaking) might buy i
any man, w nether native or toreign> an^
many kinds or sorts of merchandize as he
pleaseth, which I take to have Wen the com*'
tnon law before 3r Ed, 3, cap. 5, wliereby tM
trading merchants were restrained to one soitl
of merchandize.
But that act continued not long, being
pealed 38 Ed. 3, cap. 2,
Vet this trade of inland merchandize 1aj4
under several restrictions at common law. £;
NotwiUiitanding &uch general hberty of buy*
ing and selling* uo man could in gross any on
eommodity. 3. The ancient eomtnoo la
confined this sort of trade to oertttn places,
towns, cities, or other pubUe- plaoas appoiuted
159] STATE TBIALS, StfCHAUBiII. l6S4.^Tk6Gftaia^§fMmi0p$lieM.
hy the king, Co. 3 Inst A>. 196, in the Chap.
ForesttUing.
It was punishable to buy above the value of
twenty- pence dsewherr, or to anticipate mer-
chandizes before they arrived at these places.
d. No assembiies coidd be held for the
traffic of buying or selling, vrithout the kind's
licence; for though some markets and fairs
are held by prescritition> (the original grants
«ot appearmg) yet these were derived from the
crown, by some royal licence before time of
memory: they all de^iend uoon the same
crown, and may be forfeited to the crown.
^ This is so fia^neut in our books, I need not
cite the authoriues.
And here the prerogative of the crown had
a great stroke.
The inland traders, in bnymg and selling,
Bttght buy and sell in iirivate places, and could
not be restrained: but they could not hold
assemblies for trade without the king's leave
and licence ; marts, fairs and markets, in their
true notion, being no other than ro^ral lioeuces
to assemble for trade and traffic.
And these, when granted, cannot be resumed
withont cause of forfeiture: for I do admit,
that a licence to trade or traffic carries an in-
toicst with it, being a matter of profit.
And I take the law to be the same, whether
the fkir or maiket be erected only, and not
granted lo anv one ; and where it is granted
to a subject, ail the king's sulnects have a li-
berty and right of trafficking there, and cannot
be prohibit^ by the lord of the fair or maiket.
The reason of these restrictions of the inland
trade of merchandize, and the king's preroga-
tive therein, is from tlie concern the public
|waee and justice of the kingdom hath in this
sort of traide, more than in the former of the
manuftunures, viz. to prevent all manner of
dieats by false weights and measures, corrupt
nerohandizes, and too jjfreat enhancing of the
prices, and breaches of the peaoe, occasioned
Dy public concourses, thougli under colour of
traoe and traffic.
^ And upon this ground the common law pro-
vides. That to ail such licences for public
marts, which the king may grant when and
ivhcro he pleases, being not to tlie damage of
others before granted, a court of justice is in-
cident of common right, for presenation of the
public peace and correction of such deceits
which generally attend the trade of merchan-
dizing.
Fourthly, There was another restriction
upon the inland merchandize taken notice of
in our books, which was more particular, and
to certain places, viz.
The claim of foreign bought and foreign
sold, by several cities, towns and purtii, some
by custom, and othen by charters; and there
is no great question to be made, but before
9 E. S, c. 1, the charten as well as customs
did prevail for that liberty, but both were taken
away by the Statute, and divers subsequent
laws taken notice of in the oaaeof the city of
LMdoD, Co. 8, fg|. IM.
And between that and 9 H. 4, thcfi
fpjat strugglings in parliament betwc
foreign merchants and the city of L
and other towns, about that ouotom.
'Till at length, London prevailed foi
vate ace of pariiament for establishing
customs, nbich they liave ei^yed eva
9 H. 4, 30.
By an ancient record of Henry 3. it a
that the abbots, and others the religi
the county of lincoln, under colmur of
their wool, which arose unon their dc
lands, turned merchants, ana bought up
and sold them with their own wools:
were prohibited to do it by a writ out
chancery.
And u|jon the complaint of the mercb
Lincoln, m the time of Edward 1, the hi
of prohibition issued, Pla. Pari, in the Ap
G09. By all which it appears, that the
traffic of the kingdom, which was wit
care and cognizance of the common la'
not unlimited, nor tlie subjects liberty 1
never so large as it is now insisted upon,
foreign parts whatsoever.
And that the managery of the princip
of the home traffic, niiMli consists in the
fairs, and markets of the kingdom, dcpei
on the king's prero^tive, and is m
under it, the law having entrusted thi
witli tliat power for the benefit of hia j
and the peace of the kingdom.
In the next place, 1 will take a view
foreign trade.
The common law, and our law book
notice of but two sorts of furdgiien,
friends, and alien enemies ; Calvin's Cm
7. 17.
Neither can there be any other sort ixffa
ers generally speaking : for if thcqaestioi
whether alien friend or alien enesiy, it
be tried by the leagues with the priuee,
subject he is ; which is, or ought to be ci
in Chancery. And though there be not
war or fighting between the two pHno
their subjects, yet they are * in statu bell
may assume arms when they pleaw
seize the goods and persons of each i
subjects.
1 shall first consider what the oommo
determined as to the sul^ects trade and
with alien friends beyond the seaa, aw
what foot trade stands ; and then partic
consider how it determines in case of com
with alien enemies, and incidently of infi
I conceive the common- Uw hath OM
expi'ess provision, nor given any al
right for tlie subjects to trade with any fo
ers beyond the seas.
It will be of Uttle use to discourse h
the hiw of nations interposes in this n
whether every natiou be obliged to en
trade and commerce with another nation.
Ami antecedent to all leagues and treat
commerce, little will be found hsekici th
of hospitaU^, which do not givu any da
aUeright. *"
J\
, m }m bank d4» B«yub. Ub. K cap. 6,
inetsi juif! gc^liifm esse ri-
ai, tmoea scfie a iirincipibui
bocik lie ritffiiib, lib. 1> cap. .6.
Mil** Until U tavvrul to forbul fom^c^rs
*faftiaitHat!^ 1 1^ noi tmly if a war
*ki«fiiolf l»ui I peat-^t^tlmUlieman-
L^MOQl' iIr ittltttlMUoto mA)/ uot bo oocriipieil
I* b tmk^Krm with ^tmn^rT*' '
I Am] ifi lit« btiok <li- ^< lib. 1. cup. 6, 7.
"'Dlfli ii»e biff's nt '< are cotitaiii<ed
|Wilki»l»r cooipaciH iutd agreenieTkiB of
AIM il<4lirG8 to b« tb€ law of na-
icdjr l^gMet wltlt th« laws of this kin^-*
i; hr ail itnnn^ri ontoe hither untler saic
<BiM« ivlikli oommed both the kiogV U-
«Hia«4 |w«ilcct]ini of them.
Ill* m^ mijfbt inhibit fbrcigners i'rma
mtmg mu» %h^ roftloif uul lai^hi rcsmaiui
C hiirUf tmp, 80. wfaidi b t general
fti iii«r«hdQtft^stnnfftrS| reierres
« to the kin^, ^ tdn pnUice pfo*
fTplkil,
TIUikLS^ 86 CttAittiES 11. 1684.— TAc £. /. Cc^poi^ v. Sm^t. [
the king^ 8al«-6omluetSt whioh are ia ex^
wortls maiUooed to exteoil to aUeo enemies, at
u^ctl }is alien Irieods ; $ H. 5» cap» 6. snd Sa
IT. 6, cap, L
It is held b Horn and Iry't case, Hill. 31
and 92 Car. 8ecundi« Banco Itciri^, Sydertin.
That at common law the kit jimhibit
the irnportatioii of foreign c« i , bef cKm
tlic statutes therefore miide.
So^hen as the cn^e stood at cotnmuii Iavr»
foreijl^ti prin€f^ and nations mi|rht proiubil
the subjects of England to trade with theiu;
kH the king ttiighi prohibit forci^eni to tmde
bete.
Thekinj^ ^ilT'^t inbtlnt any of htsanbjeati
froDi going- l>t?y'md sea : and this mitjfht ba?«
been by particular writ or geaeral procla*
matioo.
Our bookii and precedents are so full in Ihii
point, that it was admitted on the olbcr side ;
tor there could not be produced any autitoriM
that renders it the least questionablei but luul-
titudes are for it.
Rot. Claus. 7 Ed. $, mem. 10. A writ U
the sheriff of York, to si he the bodies mmd
landi^ of Hucb ns hod ^one beyond sea, conlrtrjf
to the kioi^'ji inliibitifm.
Rot. Claui. 41 Ed. 3, mem, 24, dotso,
writu to all the maritime towns to take oavt
that a proclamation probibitiugf all his siubjficli
(excc[»t iiotetl merchants, and those unarmed)
bejnit iue.\ectitioii,
llercby it in evident, that it was penal to g#
beyond sea, cuutrary to the king*a inhibitioii|
before the statute of 5 R. 'i, cap. 2.
AH that that statute adds to stren^>en lli»
kiDg*s inhibition, is only a point of iurther pe>
nalty, v\7., A forfeiture of the ?oods of the pa^
Beniifer, and of the vessel of the master ex-
porting : atid thou^ there be three aorta of
oersons exce^jtinl out of that statute, fis*
Lurd!4 and otlier ^eat men, true and ootaNe
merchants^ and the king'f soldier* ; yet tbal^
law n-ave those persons no other libeity Uia*
they had before, only leaves them out of the
penalty proTided by that statute.
That Wtbre lliis statute, noblemen ami otbsr
great men misfiit be prohibited, apjiears by mj
lord Coke's opinion, 3 Inst. 179, m the ease A <
fu^tives ; ami the records there mentionsdiy ^
especially thai of the 25th of Ed, S, Rot. oteoi.
niemb. 15, dorso, where the king, by hts pro-
ulamation, prAhibits, that * Nequis Cumo^
* Baro, Mite« reticfiosus Sagittarius aut opera-
* riiis, extra Return ee transfer ret, sub i>cBna
' Arrestationii, at Incareerationiii.*
And for the kin jf*H soldiers, it is plain they
could not dspart the realm without the king^'s
leave: but his raiaing^ of them for his foreign
service, was a sufhcieot licence for tbem in
<}cpart the realm with their several captains.
And for tha. tnie and notable marrbanti
tjroepted in the statute, they are the sattt© witli
the noted mere I mi its enx^ptcd in the proda-
roationof 41 K. 3, who were the merchilrts of
the staple, who were admitted find wmm l»
obsen e the Jttfw itt the 4tafie | «Bd
My IdnS Colto, la hts comment upon tliis
^^fmr^f li»i, 5. T,adt?i * ' iiiffht hare
■a pobibitcd l>efc>re n but con*
svia^ of thib j'>w4,iu}»iva by act of
t^^Ub cooflrQetioa, sj* it i^ \tW'riniii uny
eiitor authoiitv. u^iiSt
I ftncam of prccedi i ^ rnetice
9* 24 H, 3, dorso, which wfts after
, the kmg trnt hk writs to i*wreral
Mftii^ omaiUAndiog^ that all the mrrchatitf,
i/ should depart tfie kingdom
Mad in %hte mami roll, dorso^ there ts another
^>i»i tlM mayor of I^Aiidan, i^ivin^ leave to
!■■■•, Klnrrsiifte ftiid some other mcrch^Qts,
^f till ibc Itatft of St NAriiii in tho year
ani pmelice in every kinp"'!;
, tuuii been bsitb by pfuclamation
ol* council, to command foreigners
I tW n«lm.
firsldrm, ike coniilniet 1 ^ ' p u Is
ifHi ft, jBiAii the dauftt > -
Atl <foe act of paHtuiuLiiL iihauld provide
kraamritt^ by * n»iI.n.'<^ii(m.» »ct which of itself
«VlM W >rrp«ti] '"■,'' ii.cr«
fSa wlkrrv- iti ut prohibited fo-
B^f&tim to cofiu' in, i\ir King by his safe con*
Ans oihtii 1 1 loetif ^^ 1 1 < cm .
IW C^ocncutMis in parliament 1 H. 5. pray*
■" ' ! mode by Henry 4, for avoiding^
if M«BV«r« ovt of ih« realm, mijt^bt be put in
T1l» Mug mnis it, savm|^ his
lfoen»* whr>ni bi- tilrHu^. Tlie
as no
<6S] STATE TRIALS, 56 Cha^lbs IL 1684.— 7]b Gtiai Que^MMfoUmi
boiiDd to rtpnr thither, and not elsewhere,
without the kuig*8 special licence, as I shall
afterwards shew.
By the statute of 27 Ed. 3, which settled
tiie laws of the staple, rap. 23, all merchants,
as well aliens as denizens, repairing to the
staple, are required to he sworn before the
mayor and constable of the staple. After the
at^le was at Calais, as it was 41 E. 3, and
5 R. 2, the same laws of the staple continued ;
and these merchants are in many records
taken notice of.
37 H. 8, cap. 15. All persons are prohi-
bited to buy wool in Kent, and some other
counties, except the merchants of the staple.
And 1 Elis. cap. 13, provides, It shall be
lawful for the merchants, called merchant-
adventurers, and merchants of the staple, out
of the river of Thames only, and twice in the
year at most, to ship out and in foreiflrn
Mtoms.
Now 41 E. 3, and 5 R. 2, the staple was
at Calais, and all the merchants of tlie staple
5rere bound to repair thither only, and had a
genefal^ licence so to do, witliuut takin^f of
vatsports, as the form of the sUtute of 5 R. 2,
directed.
Bat these notable merchants were restrained
to tra/de to any other place than the staple, as
I shall aller tiiew.
As the kioff may inhibit any of his subjects
goine beyond sea, so he may at any time
recall any of his subjects, under penalty of
forfeiture of gowls and lands, durinjf life,
Dyer 12, 8 parag. 10, and 276, and 375, 3 Inst.
179, in the chapter of fu^tives, and 25 and 26
Eliz. Cater*s case in the Exchequer Chamber,
Leon. fb. 9.
Upon these grounds it is evident, that the
common law did not ffive any absolute right to
the subjects totrade bevoail sea with foreipfn-
ers ; for no man can have a full ri<rht by law
to any tbing which olhet-s have a right Sy the
same law to hinder him of, or to obstruct him
in the using or enjoyment of it.
And Mr. PoUexfen did rij^rhtly observe, that
tliis fundamental ri^hi of the king", of prohi-
biting his subjects from going beyond 8«.*a,
equally respects the tr.\'\c \^iih Christian na-
tions as with infidels ; \W both have a right to
debar the Enc'Iish from uiulinu with them, us
the king of England h-^i i rit^iil, at cdininon
law^ to restrain Ill's sui'jtcts witiiin the realm
from passing over th.' sen to tmde with them.
'^Thich is^ fuunde<l upon the kinpf's light of
protecting his kingdom, which could not lie
dischaiged if the suhjecti* had such general
right as is pretended, ot' uiphdrauing tlieir
persons and estates as well to intidel asChiLS-
tian coontries.
And if such general ri^^ht were by the com-
mon law, it is marvellous ; aiid that no rceurd
or book-case can be fount!, vvhci-c it was ever
•0 resolved.
Notwitlistanding great occasion has been
Ifiven in ail times, by prohibition, for the sub-
jeottohave asscrted'suchnght;
The only authority |Hrodiibcd it the s
of Fitzherbert in Nat Brer. lb. 85* wh<
words of Fitaherbert are, «That by thet
* of the common law, every man may |
* of the realm for merchabdiae, or trai
' any otiier cause, as lie pleases, wiftbo
« manding hoenoe of the lung, and shall
' punished for it'
By this opinion, the liberty the BubfOi
to travel, or to go for any other cause b
sea, is the same as to trade.
And this opinion imports no more than
imponity, that the common hiw made i
press provision against it, so as to POBis
an oflenco at common law, but left it
discretion of the king to prohibit, or pert
he should sec cause.
That tliis wai tlie meaning of Fitzbi
and that he did not intend any right the
mon law gave thi^ subjects to sro beyon
but only that the common law was
therein, and left it as a tiuug indifferen
tecedent to the king's inhibition ; is e
both by Fitzherbert, in tlie same place
the CO- temporary opinions of the sajges (
time.
For immediately Filzherbett ezplai
opinions, that because every suly^ is
to defend the king and the realm, the k
his pleasure may command the subject
eo out of the realm without his licence ;
uiey do contrary tliereto, they shall he fii
their disobedience.
Here, by Fitzherbert, that liberty wh
had assertcMil for the subject to trade or i
as it was equal, so it might lie equally rest
by the king at his pleasuie.
All the Judges at that time were of the
opinion.
31ieh. 1 Eliz. Dyer 16o, in aaamemi
the judges and others, the question is
stated, ' whether a subject generally
withdraw his ()ers«m out of tne kingdoi
inereliandize, travel, (»r other cauie, 1
sole licence or |iorinissiou of the commm
^riie question la not put upon any rig
subject luul t<» go, but upon a bare pen
at eonimon law.
For all thejudovs I'^niHMl with Fitzhi
that thckincr might prohibit tliem
And Fit7hcrU'it\s opiuiou for such pi
sion only is urged ; and ut tliat time Id
a qu&Te upon it, witlitmt any allowai
such pcrmissifui from the judges, but
iiigly to the contrary*
But aflerwards Mieh. It and 13 Elia.
VJ6j a pai-ticular case of a merchant tha
beyond sea to live, and not for roerclia
v\i\h(>at the kini^'s licence, came bcfiu
judges ; and it was debated before the j
of both benches, and tiic chief
this {K)int,
Uhetherjt were an offence ponisba
conmion law Y
Two of tlie judges held it to be an el
and that tho common law did prohibit it
Tlie rest of the judges ooncurred with
itfWrtf BUid tiettlf that before an expt*c^ pivilu*
biftuin by llit kfiv. tiv nmrlLutittirtn of ivrit, it
i^nut notau o|1< i trft by the
common bvr ,i. ; whicfi im-
po'ft5i tin H^ht, Uui ik bure luiiiunilv.
But all tliejml'^^, alter a pmimhition, held
It ill} ofTcnct ftiid oantcrapt piiiiUlmbte aX com-
Wi'm law ; whereby that jioiut in settled by the
ojfimou fit' Filzbr>rrMLnt ntui this judg^ i»^^ iJmt
time, that at the ^oninitui law HceiK'o WdH but
»b»[ ■ lon* im|tortiiitjr only inif»nnity^ in
lJl4i Lft silL'nt (lelore an < xpp'ss pro*
biifiUo.i K,, M<t ktniiv, whi*'tj iiillir linvis) ilei^-ey
elpprmmion token notice of in b^^jks ol law
UfOtiofi, in III* U>il »>. I.rn^ k. Ill ♦ » Pn ,^,
lib. |!». 3. No. % «l.
iOodW, • Pcrroi*
'rtt L<::^s, sed aci! i qu.Ui*na9
'ilud ftb cOf cui jKtt _ \ oc Impc-
'dtmeDtum pontit' ^
But ihiK pcnitis&ion of the common bvr goes
Ml 90 lar as to nbiii>v or fb'hur othei-s from ob-
itottctingf the aclton, uUn h nuiy be impiidcHi
bcb bj ibe Jyug siMi other nmicu«| b« I liskve
h CBTri— —'- • -*' "lih it, aoil t!iis
Jiheity t»i --f «tiiiiigers in
, •Oi;.,.,..,^ ...^.,.^.,. Liwit liberty whit^h
mmon law allows one i^ubirit tun aids
r, tiz, a free patwage |o his hi»tt*»e» to
or tr»^t with him, which suundv <iidy in
1 0f trespaiSy and triay be proliibitc^l by
Hcoinicr.
P E*l. 4, f«, 4, par. 15. In ti'e.<4|)ass for break*
[n^ 1^ ^ he ddend&at pleaded a ticcnec
nir ; who replied, that al>er the
ih ^1 the defendiint to come.
tt ri express from the party,
ler mig"ht deter -
naniiMPiiiaw 4id iiot ex'pressly
• ^iii^ t>eyond sea without licence,
fib it as'au *ifreoee criiiiiiially, yei
UHefiAnce all g'otnof }>eyond »e>a
he tloff's licence, in a^ljudcfiai^ their
rsuch a depailnre, aliena,
iothe 1'Ln^.^ljJih 1au!i ; aa
ilvi^ utter Hide ^ Hill. Uillar. ^5
^.B* Ra,
»♦ 3» Tliat rf fin TOO nrid Frjoe go beyond
Lti Ucenee, and birrv tiierr aSier ibo'tiine,
b\ ' ■ lice, iiml havt^ tstuxe bor»,
tiger abal] ind not inhenrable.
^^H UMid«ia iiiuKit; ptiMeraor pnt '
^^pilb the c««iii&ofi law entru^^v^ i
^^Mffeneeoftlie r^"^''^ * v to ji^^..^^ ..m.
^^nvn! jiiic itM» to -in iVuto ^x>tiiir« and
^Hki recall hta ou .. ^.^^ .^ when jjouc ky ood
Thf* ff^w rt?;tB ttie sole power of uiakiog'
Icmrii ei^nent in tlie king alone,
i\ ii <^• firit atep tiiward^ a foreign
cotniiiOQ law adntitlingr of no trade
, etieuiies are made frieudt only i
leaguA 10 b« mado capabkr of b«ug
iwil^.
465J STATE TRULS, 36 CuAur.Bs fl. l6S4.— 7%« E. h Compmp v^Sandi^s, [466
Art J as the making of all leagues, so the
wodtJJirig' aoU limiting of SQch leaguea are by
the king: alone.
As It is to be obserred, that no leagucf wera
e?er yet madt; for ao onUmited atid universal
trade, but in ali leagues the particular, munici-
pal laws of each country are excepted ; as tor
ei^ample^ salt cannot be imported into France ;
and most French commodities are retfti-aioed
from beiiig^imtHirted hither :
8o it was resolved. Paseh. 36. Elia. (i Inst,
5.} .J lust. Henrj- de Vale and Tomhnsoo, upoa
a seizure of French Koods, and a complaint t^
t lie council u[H»n it^ That the laws uf either
kin|>doin h ere excepted in the leajfTue.
I^ltuch hss dolli the kin^ in any league con*
elude or build up his own prero^live tuwardi
Uis own subjects, in i^rantin^ th«'m licence*
l<* trade, or in restrainuii; of thein fioui going^
bcvond sea, though in ordi-r to trade.
l^Ioreover, the rules of the common law ar*
not adapted to iletermine riiatier« of loreigit
trade, oeither can ♦orcigners lie presumed to
hare cognizance of the municipal laws of thi9
kingdom.
Ihc pnndpat part of forrign tnide i* trans-
acted beyond !»t>a, where lite ci>ninii>n law ean
havi! no cos^nizancc, but t^eonliaed within tha
contpiijjs of the four sea*;.
The law was hm sUii*t\ that an obLigalion
hearing' date at a certain place beyond se»,
toidd nut be trietl in England, Ul £. 4«
fol. 74.
Service of a privy seal upon a sijfij^cit be*
yond sea, commnnding htni to return, when
certified iuto Chancery, ami sent by Mittimug
into the £xche<juer lor f^eizlog of goods and
landsf, is not tmversible, liecause not triable in
England) 2 Eliz. Dyer 17(1.
In the case of the king and Oiisack, 17 Ja*
cobi, llolb rep, 2 part, fol. 112. Serjeant
Davies argues that the municipal laws of any
realm are not sufficient fur orderiog the al«
fairs and traffic of merchants.
And upon tliis ground, when the staple w«i
removed from beyond sea to several towns io
England, by the statute of 27 E. a. it is pro-
vided, That' the trade should be governed by
I lie same laws it was before.
Ami by 7 I'liapt it is enacteil, * That aU
* merchantii crtmnig to the staple, shall be
* ruled by the law-nierchaut «f all thingsi
* touching iht^ staple, and not by the comtnoti
' law of the land/
IV hereby, in nej^ative words, the com moll
taw wiui exihided from inlcrtnrddling in tlift
atfjirs of mercliitnts ; as uol proper to detnitt
Uio^ft CO at n» verities, ami wherei*f forefguen
could have no coguixanee.
IS} ull v% hicli it ap)N:ars, that the oomtDon
law made no proviitton for foreign trade.
The common law iberefore havutiif given ti«
right tn the stihfecta to trade lieyoud the h*jiii.
with forrignrrsf, nor prc*scribed any rul<^^ lor
(tie
|ffie>4dv
tho managing of Utat trarle, biit leJI that mat-
ter Side I V to the kiog, fur iltm hmd jtfotlt of
bis people I
I
1
467J STATE TRIALS* 36 Charles II. 1684.— 7%f Great CateofMrnufpoUa: [4fi8
It may be proper tn consider upon what | liament a^inst the meu of Flanders ; ^t
foundations the foreign trade stands. ' |
The foundations are two.
ti Leagues made by the kings of England
If ith foreign princes and states.
9. Royal licences, which are either solely by
grant, or by act of parliament.
For all acts ot parliament in matters of
•rerogative, and which move only from the
king, are ))y the king's grants in parliament
■atified into law.
By leagues, foreigners arc bound by public
compact to ailmit the king's subjects to a
IreeJom to trade with foreigners beyond sea.
I have already spoken of leagues, as the ne*
ee»ary preparatory to all foreign tradr, and
without which no ibrci^^n trade could be en-
terpnzed by the subject.
What I shall add, is only concerning the ne-
cessary dependanoe of that trade upon le|^ucs,
in its continuance and regulation ; if the
league be broken, let the sulijccts right he
what it will, to ti-ade either singly by grunt, or
by actof imrliaracnt, icis suspended, and uher
]>roclamation made, beenmesuiila\Uiil and pu-
nishable, as trading with enemies.
The leagues and treaties with foreign princes
for: trade and commerce, whereof tho sole
power is in the king, to bind the subjects of
Engkind.
They are the only laws betwLvt nation and
nation tn direct tlieir trado and commerce by.
An«lbyjhc said leagues, trade may be limited
to certain places and cummoditic^, or other
restrictions, as the two princes shall aj,Tee
upon, who are the only masters oi' their
kiaj^ucs.
A clear and full instance of this, is in the
leagues for 1 1 udc with Fluiidevs and the low-
couiitries, between the kings ot'Kiigland ur.d
the dukes of Burgundy ; whereby the btaple
was settled at 1]rnf^rf.->; ; und that no wools
should be sold i:i i'luuder<i, but wIkiI came out
of J.-'iiit;lanti ; and that r.o Jjnnlish cloth
«bou]d be sold in Fhinders, on pain of fur-
feiture.
31 {']. 3. Complaint was minie in parlia-
ment by the iiK-rciiant'^ of hpwnd allM^^'^ com-
mitted by ilio iu(;n of ilruviPN. in lesl raining
•Ht mcreiluuLS from sell I n*^* tlieir wools to
whoni iliey pleaseil lI Jiiiiges ; au'! prayed
icmedy.
The'king*!* answer w us that the oidinancc of
the staple slioiiM be viewed, Uiid that Thomas
Mlchelborne u ith w hom the (utent touehi')<<;'
that ordinance was, be called to brihg the ;i.:iiic
with hiikiy and some of the ni< rchants of the
tovaairyy wlie best mider.^uod iliis matter ; luid
the king by advice of his council woul«l pro-
vide remeily ; Rot Par!, ill K. J. nii. 10.
22 E. 3. Another complaint is made in
Eariiament agaiort the men of Bruges, for pio-
ibiting the merchants to buy staple wanrs
kerc, and pray redress.
llic king UMWers that he will speak with the
Tie miih ambMsador abdat it, 92 E. 3. nn. 1».
% Ht 5. Agrievow CO^^laint made in par-
though Englisli merchants obaerred theandent
leagues, that no wools but English shoukl be
sold in Flanders, and no En^ish cloth soM
there ; yet they permitted the wools of Soot.
land, Catak)nia,* Arragon and Spain, to be sold
there, and pray remrav.
Tlie king answers, tliat search shall be made
for the alhance.
And upon the like complaint, 9 H. 5. the
commons pray, the king would fdeaae to treat
with the duke of Burgundy, that no oAer
than English woob; should be manufaotnred
there, or that the English might sell their doth
there.
The king answers, he wouM treat that the
English ctoths might be there sohl. RoUi
Prerogative, 1 ib. 14 title, League.
But this treaty came to little pnrpofla, tiO
after the acts of pari lament were made, S7 H;
a. cap. l.(QO H. G. cap. 4) 4 £. 4. cap. 5.
for excluding all the commodities of Flanden,
until the duf:e of Burguudy recaUed hia pro-
clamation for banL<»hing cloths out of his do*
minions.
Those statutes produced a firm league be>
twecn the kings and the duke of Bufgyndy \
who in the record is called the duke of Hans,
or of the Styll-yard, Irom the merchants fait
subjects, who had long in England obtainol
those names,
By that league a free trade for dodi was
agreed upon for the English merchants in
I- landers to continue for ever ; and the king
confirmed to the subjects of the duke, as well
tho Iibcn-liei( gi-anted by J*idw. 1. tu merchants-
si rangers in geneml, by his Charti Mercalona ;
as those granted by Eilw. 3. to the merchants
of the Nty 11. yard m particular: wliich [eagne
was cnniirmed in parhanient, 13 E. 4* nu. 2.
These leagues may suifioe to shew the dt-
peiid.mce foi-eign ti-ade hath upon leagues, M
to- it's continuance and r^ulation.
Hy this lea^pie the staple at Bruges was
taken oil', and liberty granted to the English
merchants to sell their cloths in any part of the
duke^s dominions.
Who these English merchants were, I shaB
in this plaee only make a short remark ; that
they were the company of men'hant-ad^'en-
turers, erected and licenceil for the lictter r
lation of trade for wool and doth, beyond tbt
seas, by letters patent, 1 Feb. 8 li. 4. and
confinned by otiier letters patent, 1 Oct. 1 H.
.*). which I villi speak more largely to, when
1 come to shew the constant possession the
crown hath had of liccn!>ing corporations ftr
f:.rei«;n ti'ade, exclusive to others.
Tiie other foundation, upon which all foreigl
Jra«lo stcnds, are royal licences.
1 before shewed that the licence, wlridktliv
common law gave to trade with foreignen,
w as no sure foundation of trade ; because II
might by law be interrupted by the king, aad
did in its nature import no more than a bai^
imnunity.
But where the king grants licettoea la Ml
STATE TRIALS. SfiCifAALBS IL l6U,^The £• I. Compgnff r, Sandyt. [470
It In trtfde with forci^etJi. they gain n
ur MiNrraa m ttmde uccortliu^ to sncb
TImI Mil
■ ■' »-' ■ ■ ' trtjly, or by acl of
ttcr ttiosc tltsu ar»
lit. 61 law |in>-
hkA auay vflus mi , _^ yoiKlsenytia
to k# ittty li^aiice thvm to gu for trade or
i^iwiK, ii* aiMiti«Ktiofiuf4 r.
t Wffii of Ar n&d tieverdl
mf ^LTtuL^* ji TM ; .1. ii>o. and
TIm k ^laitt Kiicli Irccvicoii, itol
irf^ filnfrt- luaurvM ui^y iimUiMt* birt tvbcrc the
mmmim law, ouil acts at' paulutuent il<i {>t-o>
Ujl.
jUicn itnemieft are i^rohihited hy the cotn*
•M Iamt lii come h itttln the reutm ^ yet the
liir MH^y ticeua« tb^rm iv iitinie dy tiis 9«le*
itrtbeob«cn
4»ilili9iily ifle*i30iiducts
fH thu wXken i^uemy iiitu the CtJiidition of ao
ilita M*yt u fnfly tituterthc idnq-^s protection
tlai*^ IImi C(»fv' oudiicts.
y»Mtjfri U or injiii%
Ik pifwvi ihiij tor itj botfi at
F«r iBlorc^ I lie Ktatlili's in:uU
Iraeci «i jalb-cocidttct» wn
fHniy « record of thii enun,
X «» (Upv, Rot, 13. which 1 shaJl
kam^tmm&a to nulu? use of to another pur
domiutoiis of foretspo prince*, as in the ififittntse
uf Bi iig-es: tJiat must be doue by leagues, our
c^n ti t liber wise be.
" " " *i' ' «Tf the Rtaplcisin EnffUnd,
110(15 of the king« wu
Jiutt!
or in 1
at Hi si J ,
Thi^i i^ e^
party.
which 1
inch aa alien enemy may bring
I action for debt, or any injury, ap-
peaahf llw& ekta of John Douglas, a ^ooU:ii-
MiiH SO E, 4. Ibl. 6, V\. 6. and Afoore, 431.
The k\n^ msy lufnc** bin siibje«ls tt* iraile
«i4i ♦MCatoi { mnon U»'.
.WmI fbr |fi> .^o and tmUe both
iitttancea ai'e inliuite.
' : : tif thvie, 1
iiitborititj^^
oi iiir RMti^'s prero^-
to matters rdatiiij^ t4> Ili*
Kit d^ fiarlian
Uoi t«r ili^
flaiMaktt o«
H oa^OllI tile r\«;r(;iNf ni i
Mil retftiLx what I have to offer under
.^ Tl»il tbcitaiiUvi, which i^ert^ tbe fiubllc
Ibf alt n]fTen2iiit< to n^sort to, were at
t]J t this realm, an -
Itoaiix lit.
Kpfxio4ly, *l'b*i( .Uui tilt s;u{j|(5 was ca^ta-
l^li^ Bf r aIiu9 by a« t of |>4rliii[uent ; tbe
kia^ ' :«de to utber place^^
«i*r ! do without §ucli ti-
Hiirlly, Tlxiiiihe rrg^tatton and tnanagery
ti $mm^ tnSt m all caatevi where acfs of par-
Hamtflil lMif# aoi p«rliaikifiv uiterp<med, have
ha* MiM anil governed by tbf^ km;;:'s pre-
" '^-'' 'ti puiEit of bcoiee aiid inbi-
■jsir
Vint Im4: A» In Midtiigf tbe staple io liic
ilet?lnr«;tl in tbe ri*cital of
[ . 9^ whereby luerchantti-
iiave blKTiy ^rr^mietl tliern tv
trarie in l^ngtaud, aceording- to tbe form of tbe
ij^ritiitehartttr.
By merchants- privy, distinguish ad frona
iui'rcbuulti-Etrang'cfrs, iu this law, are plainly
intended tbe luerclianl!* of the kinj^'s tonji^a
dominions.
The Jrisb, who by Ordmrntw pro SlaiuU Hh
(temiO!, 17 £. If ba<i liberty granted them to
ti-affic into England ^ so as they tC>ive security
not to go unto, nor commerce with i^otlauJ^
nor other the king's enemies.
And tlie Gascoigners, and other the king*a
subjects in France, \sUo bad divers bbertifs of
trade grafted them by the kin^ ; as
by A di Terence betiveen tiicifi and tbe
itoiiers, decided judicially iu parhament, 1
1, purl. ful. 180, and 130.
I'bat by uiercbantii- privy la to be understood
of the king^s foreigu Bubjectij, 1 collect ^m
the reference this law^ bath to Ma^oa C/harta,
which coneerued only foreign uicrchautMj
whereby the king^B power to reMraiu tbeni waa
rej>ci4eil> and cousetjucntly w^a* reaerved by
this ku-; as is taken nutice of by ao act not
printed t 8 E. :i, num, 20^ that the stapW wa|i
during rbe king^s pleasurct and the king re-
voked tbe stapie, giving mercb^at-atraugera
liberty lo buy aay staple- w area, 1 E. 3. l^arl.
Rot. pars 2 and 3. Mem. 24.
A c>>mmia&ioD issues lo the ma)r or of l^jndoD
to put in execution tbe orders made by \i, H.
ihv establiiibing the staple in genera! cotutties of
EngUud) and for the rule and gorerumrist ot'
noerch:iDts.
By 27 E. 3. can. U ^^ atapte waaietUed la
soerni towns in Eogiatld*
liut that law bad no word:i to bind tbe king's
prerogiiiive to remove it: and of t'-- -^ -noii
Wds the pariiauieiit, 38 K. 3, wh^ «a-
inons [truy that tb« t^taple may ah*... . .^ . .„..uiae
iu England.
Tbe king answers^ it shall ooDtiuoe till tbe
next parliament.
The first of March in the same ye^, the
king remiijed it to Calais ; but 43 £. 3. cap. l.
becauieofa war that broke out witli Frauotp
it is brought back : the act recites, that it had
been removed to Calais by the king, lor tbe
pi oil t of the realm and ease of tbe mercbaota of
England.
47 E, 5, nu. ly. The Commons pray that
the staple may be only ke|}t at Calais, aiul that
no grunt Ik* made to the contrary.
I'be king answerSj that he will a.ppoiiit the
staple, 08 by the nounril b<* ftliatl tbiuk be«t.
1 H. 'i, nu« 9fl. The Comnionii pray to knonr
where tbe staple sbuli be, if Calm bft^ly ht
bcaiii^^eJ,
4i
471] STATE TRIALS. 36 Chablbs II. iSM^The Grut Case ofM&iufpolie$: lift
Tbe king answers, in such places'as were
lisl used.
Dy the constitution of these staples, nter-
chants were not only licenced, hut obH$|rcd to
n?i>rtir tliitbcr, and res! rained to export tlieir
fctanic-warcs to any other place.
And although many statutes were made to
fortify and stren^rthen the staple, by creatine: a
for tixing and strengthening of the sta^des, the
statntes of 18 £. 3. was ab^utely repealed and
set aside.
\s to all Ens:lisb, Welsh and Irish, hy the
statute of 27 H.3. for settling the staple in
Knt;land, by chap. 1. wherct>f all £niHisnmeD,
Irishmen, and Welshmen arc cxpresaly prolir-
blted to export any staple-waics ; and liberty
foHcIture of all sta4)lc- wares, if carried to any j given only to mrrchantK-strangei-s to doit.
other place ; yet by the records I have produced,
it is maniiciit that'tlie sole nppoiniinent and or-
deriii<|^ of'thu staples was in the king, ami that
hy the acknowledgment of several parlia-
ments.
2 H. 5. cap. G. provides, that merchandizes
of the staple shall not be e\'|iorted to any other
place without the king's licence, before l)rought
to the staple, on pain of foi-feiture.
2 H. 6. cap. 4, proviiles, that all staple-wares
shall be carried to Calais, so long as the staple
is there.
And 8 TI. 6, cap. 17. provides, that if mer-
chants export the merchandizes of the staple to
any other place, the merchandizes shall be for-
feited; except the merchants of Jeane and
Venice. And cap. 27. several licences granted
by the king to export to other phuMis are re-
Toked.
What these staple -wares were, is fit to lie
known, they comprehending the greatest part
of the native commodities of this realm, that
were merchandizable in foreign parts.
By the statute of the staple, 27 £. 3. the sta-
ple-wares are, wools, leather, woolfels and lead ;
to these are addetl, by a statute made 60 £. 3.
tin, worsted, butter, cheese, feathers, and many
other commodities.
This s atute, though it he not printed, yet is
taken notice of ai>- a statute and a law of the
staple, by the statute of .3 H. 6. cap. 4. where-
by butter and cheese arc rocited lo have been
made staple-wares bv this law.
The record is /iO E. 3. nu. 20. (or 200.)
where the Commons of the town oi'Calais pray
that the staple may be holden only there :
Which the king grants, that it shall be hol-
den only there, and no where else beyond
sea; as well of all ancient staple-wares, as
of tin, worsted, butter, cheese, feathers, (Sec.
The staple was several times removed by
11. 2, but from 21 R. 2. it continued at Calais,
till that town was taken by the French.
By all which it is manifest, \i\ion what slender
grounds the statute of 15 K. 3. cap. 3, that the
seas be o|ien to all merchants to pass w \wve
they please, was urged am! insi$te<l upon to be
a law in force, or to have any intlue.iL-e upon
this case.
F<>r besides what 31 i*. Sojicitcw truly oljser»o.i.
that it was made for a spicial purpo.se, to tukc
off the present staple ; to which all ruerehaiUs,
as wi'II foreign as himliNh, were coniined to
carry their goods, and was of the same pur-
port, as the statute of 8 £. 3. nu. 20. I before
mentioned, which opened the then present
ttaple.
For by tbe tevcral laws I have mentioned
And by 3 Chap, it is made' felony for the
English, I risb, or Welsh to export.
And when the sUiple was returned to CalsiSi
it was a forfeiture, as I have shewn, to export
those wares to any other place witlH»ut ex|insi
licence ; tor that the Mare Liber utn^ by the
statute 15 K. 3. became Mare Ciausutn long
since by many subs^'queni laws, and not to be
openedbut by a royal licence.
1 H. 5. nu. 40. The Commons pray all
merchants may export to any place beyoad
the seas, or import any goods except gouui of
the staple.
The king answers, he will advise with Us
council.
The parliament did not insist upon amr light
by 15 £. 3, but prayed it as an act oTeiaoey
and were modest iu their request, that the ge-
neral licence desired miglit be restrained to
merchandizes, which were not staple comrno-
dities, yet it was denied by the king.
17 K. S, nu. 15. Several towns in tbe West
prayed, they might carry their wool into Nur*
mandy.
I'hc king answers, let them repair to Calaif
as is appointed.
13 U. 6. nu. 50. The Commona pray that
every merchant may lawfully transport all
luauiier of hides, calves, skins, coney felts and
tallow , to what place him liketh, other than to
Calais. Which is denied by the Idug.
]«y 18 11. <3, cap. d. LLl>erty is gfran to ex-
port'butter and cheese to any other fiave be-
sides the staple, in amity with tlie king, pro-
vided the kin^ may restrain tlie same when it
shall please him.
Where was tlie force of 15 E. 3, if w»
minute a thing as butter and cheese could not
be freely exported without an exjiress statute?
And that it is obtained upon such uigent
reasons as are ineiitioncd in the statute, and
granted ton hut conuitionally, with a saving af
the kiuff's right to restrain."
This may suftiee lor making out the finl
head, that the staples to w hich all merchanli
are obliged to repair, were principally instituted
and appointe<l hy the king alone ; and that the
statute of io K. J, is wholly repealed by tbe
bus fir settling tiie staples.
Second head ; in the next pbce I shall ofc
some authority to make out the king's undoubt-
ed right to u:rant liberty of trade to other
places, after the staple was fixed at Calais.
My lord Coke in 1 Inst. 282. is much intht
right, in affirming the staple was continmJ
at Cakiis above 200 years, thoi^h he be mi^
taken in another assertion, as I l&ave fuBf
shewed.
fiiltlwiU admit the staple nt last ftxefl at
Cillitt hy 41 H. S» atiU titren^tlienetl and
KDnd^xtlif; (irnAltv oi iorfciium I be ot'
. Jul and
., u«'*ut .#^ri,v.^ I,, tia^i: toother
neral
ucrh
>our
li;f iif di«{M']
« full .1^ .', 1 1. : •■ . i 'I .
'«f liwf ITOWV.
Bttt 1 i(baft rmtfhc
llntrafrr.
ibiiawirci hail a (lei-Miidr _
yuAid, or ilm^n ti»to qttii«iion in any times tiJl
thm aioi ^^ Brrmck tiiul Ne«rcafitle have
m3*<trtf(o initancefi of
ipear, by what
iber otter thai
pi erog alive not ilis-
fi«irfdetrtm»it
-rn, which being'
i venue, arisiflj^
.^ct ofjiarliameiit
ITS] STATE TRIALS^ S6 Cfl Aatfts If. 1684,— TOf i?:, /. Company v, Sandifs. [474
Till It eooU aoi be Mmof <d bm by act of The defendant plends a licence, 19tU May^
31 Eliz. to GilbtTt Lee, his factors, ex*x^iitonv
ilepuiies and assij^necs, to eiLport she«?p>ftkiiuil
for ten years, nut exccFiling^ *2U0,000 io nnj
one year ; if it hopj>ened by any restrnint^
any other cause, they shoiih] not e,T]ir>rt tha
number ; and pleads In at Let a«6i^ed to, am
nominated 8coi to execute the letters puti-nti
with the continjy^cnt utaiis;e» : And,
That Si'ot at^^i^ns to the defendant, \ritboci
any express mention of the eonting* nt clause
and pleads lie was hindered during tlie t«;vm {I
and justitie^ for the expoHation afterwards.
.4Jt the eourt heUl, that lliis i^sis a dinprn'^
satioo the kin^ might grant to Lee, tlie tir ^
patentee.
But judi^nient waa given agaittst Hawes tli
defendant upon these reas^mit :
Firsts Because being a dispensation, it
not as«ijrnable.
Secondly, That though 8cot might have lh
henetit thereof, as uotuiuated, yet he could tiO§|
nouiinate over.
Thinlly, The advnntaire of the future con*
tittgent in nut assi^aljle, llilhn 3, et Paficb^
4 Jac. Banco He^is, Ho. 126. Hale's CJommo
Placa, tit* Monop. cu. 3.
Third Head ; Jn the last place I shali shew^ I
that the Ff i^dation and managery of the fo* ]
reign tradt:^ in atl cases where acts of parlia^J
meiit had not particularly interposed, hati
bc^n guiiled and i^overned by the prerogative,
of the ci'own^ both iu point of hceuce ana pro-
hibition.
That the foreign Inide was at first transact^
and carried an by foreigners! is most evident
from ^la^na Chartu, which, a*^ to Uiis trada^J
provides only for ih w\ffu tiierchiuits.
And if any Eii^lisjli hiid ut that time <'xer«
eised such craft, or bud had the least pretcuc«>]
therein ; no doubt can bf, but the GrvaiC hurlet f
of their liWrties wouUI have maiie Hoine iiro^
virion for them^ as well as foreigners ; woio
it doLh noi.
The Statute of Acton Bume!l) 13 E. 1, in*
troduced the Statute- Merchant for the henelifj
of uterchant-strangerSf for the more Bjiei^di
recovery of tlieir dtbis.
For the only mischief the Statute takes no- j
tice of, waSf that the merchants withdren
thcmsefres from coming into the realm vvjtlij
their merchandize, because there was no spt-tdy J
law provideii for recovery of their debts* [
I have not met with any footsteps of anyJ
record to make it out, that iu the riign^ q|
E. 1, or E. 2t or before, any Eng^h«h nief^
chants ever cnterprized the foreiarn trade.
But in those kings' rt i^nti, the foreign tru
was managed by tlie km^'t* charter:* to f<»«J
reipiers; for though I^lagna Charta ga^e
general safe-cnnduct to merchanl-straugeif,!
yH tlie kin^ might prohibit ihem, and aite
such prolubitiuu might hceuse, as 1 havi
.^hewn lie did.
And thei-efore the foreisn tnercbants had
recounte to the king's cTiarterSf wIa. (* hartal
Mercatoria, by E, 1| oud the chaiter to thej
!^d,
»nkt *1
3. A
^,1. tr..
Denixeiuit who shall take
any place but the staple,
• such licences
I . nt; 27 H. 6,
L oiiln' klug'a ofHcers in
'le niuUitude oi^ licences
«hun the smple, the re^
^ («unk from fiit,a00/, oer
ann. all licences before
R. 3» fol, I'J. pari. 16,
In en re grala^•d to the
•iri'. ,. rio.lv, oiihe staple
nh being
- • '■ i '^Hih.
lii. which i het'ofc njeiiiionc<l,
katlowrd of thf king\ prerogative
flitniii|fer« to come into England^ tho'
il bv •et of piiilnunent
.afurnit/f *
kiac mir h
k7: id ^
aQHrtaoCcum
13 IL cap. 3. prescribed
It yet It was resolved the
iH licfure at common
and lt\ E, 4, fol. 9.
L. ,s tixy. vu. the exportation of
was proiiibited^ except to Ca
lt» saai Cl^seolgn
Hrf M«| iiidi^iii«nta were pi^ferred, 36 Edw.
X agaiost JttUa Lamb, Andrew Tavcrner, and
«v«al 6tlMr -fuercbaul^, for exportini^ great
fmMSl^tm oi eom and gntin. They neverally
flaM ih* king'M hc'rnces^ mentioning the
iHWiitim. and lu som<i of thtm tlic certain
> til uUch the com ww'* to be carried j
I Atlian gieorraily, * ad quascunoue paries
|inHrr
iJUffi
quascuno
ae Munil
Munitin Itegts
PI
cd. Treasury, Ini
E.3.
iiijL. jAfohibited the eicpovtiition
_ir, Site. 1, ^haw bring!* his action
Uawct uj^u that Htalute.
475] STATE TRIALS^ S6CKAmLBS II. ]684.-*7Xe Greai Ca$eifM§MfoliM: [478
■OFTchuits of the Hans, or tho Still -yard,
which I have mentiunL-d.
And 6 £. 3, the Gascoi^ers foiiiuleil them-
selves in their difference with tiic city of Lon-
don, 20 E. 1 , upon their privileges granted
them by the kings of England.
Indeed the men of Gnemsey, 32 H. 3, ob-
tained a licence from the king to them and
their heirs, freely to tish and to sell then* fish
m any of the king's dommions thrice in the
week, between the feasts of Michaelmas and
Easter ; Par. Roll. 32 H. 3. mem.
The earliest attempt towards a foreign trade,
I find enterprized by the English, is the fish-
ing trade upon the seas, 11 £. 3.
At which time the king granted licences to
the men of Yarmouth, Scarborough, Whitby
and Dunwich, to them and others repairing to
those towns to fish, to fish in the sea with ves-
sels of thirty tuns, * Quibuscunque inhibition*
* teu Mandatis, N8. in contrarium factis non
<^obstBntibn8;* Rol. Clauso, 11 E. 3, pars se-
cunda, Membr. 35.
Though these licences were intended only
to extend to the narrow seas, whereof the do-
minion was in the king ;
Yet by colour of these licences, the English,
about the latter end of H. 4's reign, made
fishing voyages to Iceland.
Whereupon H. 5, at the instance of the
snhjects of the king of Denmark, prohibited
the English to fish there.
And thereupon the parliament, 3 H. 5, pntyed
that it might be enacted, that the English
imghi freely fish there.
Which was dcnieil by the king, 3 H. 5, nu.
33. Rolls Prcrog. 170, whereby it is evident,
they had no right to do it ; but that the king
might prohibit them, it being a foreign trafiir,
wherein no act of parliament had made any
provision.
Afterwards the same king, in the 5th year
of his reign, grunted li<;eii(!es to Geoftery
Pamping and John Hastings, of Yannouth ;
John Statrill and Richard Pais, of Winterton ;
William James and William Marriot, ofCo-
rowmere; to go vtrstts Furies ex t eras to take
fish. And,
That every one of them might employ two
ships called doggers, to take fish and bring it
into England by' themselves, attoriiies or ser-
rants. Par. Rot. 5 M. 5. ineinhr. 34.
E. 1. betbre any ^Statute made therefore by
proclamation, prohibited the exportation of
Rorses, arms, money, gold and silver vess<ds.
Home men bf Dartmouth were proceeded
against by information in the King's- Bench,
lor exportmg money contrary to the procia-
mation : Udl. 1 Eliz. 2, ICot. 33, amongst
the records in the treasury.
The crime in the infiirniation is said to be
* rontra iKhcem Domini Regis, Conteniptum et
* Inobedientiam Coronseque suab pi. judicium
* et Pacis, sive perturbationem manifestam.'
To which, those of the defendants thut were
taken, pleaded not guilty, of whom one after-
mudB oiedj ami another was employed by the
king into Scotland. So the Rcord ends with a
continuance of the issue.
Rot. ClaiKo, 41 E. 3, membr. 35. A writ
issued to the mayor of Hull, that he permit no
alien sliip to be freighted there, till the shi^
of the town were freighted.
It is evklent upon what I produced mider
the other head from the ReccMrds of Putia^
ment, 1 H. 5, nu. 41, and 18 H. d, nu. 50^
that the Englnh merchants had not then any
right or general liberty to export to what phoiBS
-they pissed any sort of merchandises, though
not staple-wares.
Bnt such petitkms were denied in both these
kings reigns; yet at that time there was a
company of merchants-adventurers lioenssd Is
trade into Holhmd, Zeaknd, Brabant, FiuMkn,
and other parts beyond the seas, erected for
the rule and government of all English mer-
chants trading into those parts ; anl aH who
should trade there, enjoined to be'obsdient to
the rules of the Company.
But it was not objected to those kings, that
some were licensed, and others, mitenthej
would be subject to die rules of the Compiay,
were restrained.
The Company was erected hy letters ph
tent, 5 Feb. 8 Hen. 4, and confirmed hy H. 5,
1 Oct. 1 H. 5, and confirmed by H. 6, JaJy,
8H. 6.
That the merchant- adventurers enjomd their
privil^^es, and permitted none to traoe widua
their limits, who submitted not to die rule of
tlie company, and who should not be esalri-
butors to their public charg^es, is evident fnm
the Stat. 12 H. 7, cap. 6, insisted on by Mr.
Pollexien ; but was made use of by him, only
for the historical part of it contained in the
petition presented hy the merchants to the pnr-
iiament for their liberty of trade ; whieh hy
what I have already sliew(*d, could not he true
as to the staple wares, unless thev have
licences from the king (which in all probnbilitj
they had) to certain places.
And what is it they pretend to in iSbat
petition ? Only freedom to repair to, and tnds
at the four general marts, which being anna-
ally lield and proelaiiued, was an invitation ts
aM neiglibouring nations to repair thither ; and
all English merchants, as well as others, if
they hud lain under no restraint from tbs
C'(»ini>any's charter, or other prohilntion oflhe
king, niight have repaired Uiither with thdr
cloth or other wares, not being staple wtrs^
without oifence, as I before admitteff.
In case there had been such a right to a ftss
trade to ail nations in amity, as thepe<"
suggests (for as yet the merchants retain i
modt^sty, not to pretend to a free trade
aliens, not in amity, much less witli infiddf*
whom the laws of all Christian countrisi
adjud^ alien enemies) :
This had been the proper time for the pw*
liament to have asserted that right, and ad-
judged the patent illegal, as parliaments I
trHpiently none with patents which have I
agaiiust law : hot the parliamait knewo*!
mmwMmceis prmi lu me charter ; only \\mr
t4 tKft iijif^ liuiUpd to 10 iHnrkii.
accoffte^' iiier al^envards
licdbv U . ; ii^ed to take no
BOfvafafiy |»tm*ti aiiinill^d iot^ iMt com*
A. Mid Umy* m Fdi. i «iid 2 P. and M.
I A oiqMyratM»ii ofmercltaot iMlveniurera
a«il piuU a(\|ao^itt, with lic*(^DC(f li>
d prottiKilinu to otherfi, u|ii>i] pain of
lliai l^i fbcuitiire niigiit his clTcdiMl^ tbe
lktg%athemSiW0^^ ITHriiAtnenl, B I Hi/.
liii Mi Ithm oolke, thm seveial persons,
dls Hustniif* ^«-« f>^*n> 1 iw .u i;. ir.l at ib«co»t
of riiv COfivptti; ^ >rtit utterly
lbtfta»r tiC tbr
if lbs cotnatMWcailit,
<il«rv M 4 fnJl ikuc^iplioit (mutato nomine)
€ lilt fkteiiinl Mui litf iatfrlopiug com-
iiihix^ f^ft\f,
.Ji,
tenor
lerty
llHj STATE TIUALS* 36 CHABl-EsIL l6B4,.^The E. L Ctm^ni^ t, Sandys. [478
ibe kingdom I the subjectt traditig* aeveralfyt
HiUioiit any nik or ^remment, in ibreign
part*}, m^on the account nf the fi^tieral lavr of
reprizalSf which obtains in nil nationiv.
Whereby every subject und bis goods 4re
liable fur the injuries and wTongs committed
by any one j whicli, i[i the tmire bcrburotis
counirtos« la exeiulud with ginait barlitirity.
And thexcfore U, Eli/abetJi in the directtiqii
of foreign trade, iosteml ul ^tapks, im- the rule,
order and government of merchants* at csettaiii
placefi, foUowed the precedents of the ttier*
cliantj» -ad venturers and Btimia compani^^ by
erecting corporations of mercbants lor Ibe ruf^
and gorcrnmeut of the fbreif^ trade,
Wiiieli companies, as tbey are profumed to
have a better state to answer ^ injarieg dona
in foreign parts^ than any sia^le person can b*
prt^unved to have :
So 'in their very constUution are more re*
sjKMiHible to the law^ for their minderaeanor, by
Uno WtrraiitOB, vv hereby tbey may lose tb^ir
liberty of trade.
It IS rery donbtfnl H^hether licences granted
for traile to single |ion»ons, may be forfeitodt
they pasnng an interest^ if the licence to go
beyond sea, to trade or otherwise, be for a cer-
tain time, as ra(»st lioencesj were. It is held by
thejndges, 2 Eliz. Dycus 170, in t*ie case oi
Mr. BarueB and l^ie dnrliess of Somerset, that
the licence is not revocatde.
The queen, in her reign, erected many^sor-
j>orations for foreign trade : I shall mention
only some, which bare been publicly idem .
notice of, and received allowance.
Xr June, 2 £li/. The qoeen, by 1«tto«
patent, incorjiorated seveml merchants of £x*
eter, and gave them licence to trade into
France ; and that no artificer should be ad-
mitted of the companies.
The prohibition wan not general to her otlier
subjects, but only to tlic men uf Exeter.
i'he company enjoyed tlieir hbertiesall tho
qneen^H reign, and tfoorished under them till
J Jac.
When by act of parliament the trade was
f.n. lu , 1 n 1 1.1 treneral licence given to trade with
n and Portugal, and the domi*
\\ hereupon a question arose, wWther theil^
charter wins not set aside by the geucra! viords
of ^1 Jac, and therefore 4 Jat*. caji. 9, it is en-
acted, and declart;d, * That ttie said frcneml
* act doth not nor nhall di^^olvo, annibifntf, «r
* impench the said cbwrttr, or the naid c*»wi-
^ pany in any cif their pri%ih<L^s, hbertte^ or
* inmiiiiiiUi;s. grunted \t> tlieiii by the Maid
* clwiJ'ti i ' iiitl guiieral act to
* tbecf^ :\^
This u«v .uini u ii'i iir 1^ initx* lo tbo chArtiT,
but enacted and dt^clared it lo lie out of ihe
pro^isiiinof 3 ,lat% for getierullktmc*? to traclo
mto tho^ronutri<!»t,
\V here, by the judgment nfilK! parliament,
the quecn*N power to v - charters is
admiUetl. For if the j' . JM^en void in
UW| Motv 3 Jac. to make an mi of parlinm«iit
^
By lllft jwl^itiieut of tJie parliament tiieti, u
1 tmdr, under the Girder «iid rule of u
► i»'f ' ' ' ' I L' crown, wns thought
tbenrAciat
iutk Innne thai imut^tl
4iWl4ltagm fia(«nt, «rc
tfidtfB.mprgti'
mivmitL
ilmii
lit from thinking all
trarlc there.
» tlit'lattpr end
Mlgji lAAbeth nnd the
I mmbasiu were nu doubt in great
IwlMttodo,
¥m ^ tb« fUit, '2 H. 6, all mr,
i^tinr Mplv w^ri' to be carried to ( i
fc iiafilr «nks there, which ceased
•ri^ofCnki«,
fm hy *i IK 5, no nw^n^Uandixcs itf tlie
CotiidT be cKporUnl wLihnut the king^s
, na lir»ttgiii ti} th '
tlie iftteen hiwl n«» plu'
ly the
nl lert for
svierwas ready
'tid tti%;uiluHt ut:'
sv.iji taken, such an-
iiirn; but the ploi'ing
if lltn Entctatid won Id \n n*;elr'<M noil itnlfec-
Mi, mm! dcalructt^ c to tlir ipiLuu's ru^uuueH in
, 4, R. 3,
M ) • At
JfH nam »L
om]d noC
fbf by wvcrmi tawi made by E
~ fl. 7. oKMt l«nqgn mamilbrt
finbibti>4, nnd grwrt dsicmmigomei
ImiliiNi: ol^llir Hans ar
ifii few f(ir«4|tn miTcl , ,, , .,.:j repair into
I lo ^iHi our coffin(Oilrti*.ti, wb»*ii fh«-*y
r to liaitv I V it* I hut ready money,
m ^r-' y ry niercbant a
K, a* I Ik? chargeable to
I k WB%hL yrute mischievoiit to
479] STATE TRIAI^ 36 Charles II. i6S4^Tke Great CoMetif Mmni^fMu: [4811
only to declare it out of tlie provision of that
law, were idle and ill ii wry.
The queen's subjects, for their licence to
fisb at Iceland, paid tlie oueen a quantity of
ibh, called com|M)sition-(i8n, by the act of par-
liament made 6 £li%. cap. 5.
Whereby, for the encouragement of tlie
fishing trade, the purfevors are prohibited to
take purveyance or sea-nsh ; the composition -
fish, payable by the queen's subjects travelling
to Iceland, are excepted.
The patent of the Greenland coro|iany to fish
tliere, was held ^$ood. Rolls, 1 pt. to. 5, in the
case of the taylors of Ipswich.
This trade, notwithstanding the privileges
granted to the company, was ^most lost.
And thereupon 25 Car. 2, cap. 7, that trade
is opened, not only to the English, but to all
fbniiguers residing in England.
The East- India Company was erected by
queen Elizabeth, 31 l>«x.43 Eliz. and renewed
to them and successors, 13 May, 7 Jac. with
prohibition to all others to trade there, and con-
firmed to them by this king, 3 Apr. 13 Car. 2,
upon which patent the question ariseth about a
foreign trade, which hath been enjoyed by tlie
company above 80 years.
And lis consequence concerned tlie prero-
jgative of tlie crown, in all the charters for
fordffn trade which have been granted.
Whereas I have shown, the most consi-
derable part of the foreio-n trade hath in all
times been managed nnoer srants from the
crown, in apjpoiuting the staples for merchants
to repair to, in licencing trade to other places,
notwithstanding those staples ; and in licencing
und prohibiting foreign trade in such cases
u here acts of parliament had nut made special
provision.
I now proceed to consider of royal licences
l<y act of |»arliament.
It will lie inHnite to take notice of the se-
veral statutes made relating to foreign trade.
And therefore 1 shall at this time offer some
general olist^rvntions upon tliciu.
Observ. 1. Lpon (!.\amining into the antient
lawsibr forci'^n tr?.de« it will be found that there
are far more laws tin- lostruining the exercise
•)f foreign trade, by Kuglishmen, tliun there
ai-e for o|)ening of it.
So much, that for a long time whilst the
stanle was in England, they were pruhibiled,
under severe penalties, not to export any staple
ware ; and when the staple was removed be-
yond sea, they were confined to Calais, and
such liberty of trade to other places as the
kings fi-oni time to time had granted to
corjmrations ; and single persons were fre-
quently taken off, though the king's preroga-
tive to grant them was never yet impeached
by any statute.
The great discouragement to them by fo-
reigners first began in the reigns of Ed. 4. 11.
.3. and H. 7. But in those kings reigns, the
English were strictly held to the staple, unless
licensed by the kings.
This oUervaiiot is made out of the several
laws I have toached upon, end many i
which are in the statoles at large tkrt M
printed.
OlaerD, 2. There was nerer yel eiiT lb"
tute made, that gave a general liMrty of Mie
to Englishmen to or with all natmtf ; but vIhI
were made, were special and peiticalar.
The only hiw that had any reseniblaaee to
any such purpose, was 16 Ed. 3. so ibimIi u-
sisted on, which has been sufficiently ahiaiy
shewn to import no such thing ; and the se-
veral attempts in parliament to ha?e inbe-
duced a greater liberty of trade with fiNWB
nations m amity, and the jMurticiilar lawi fiiat
liave been made for licensing aooie tndesy do
fully arpue that the law was never nBdentood
to intend any such matter, as a geaenl lionet
to trade every where.
Observ. 3. The several special statutes dot
have been made for liberty of foreign trade to
particukir countries, or fur particular ooohbo-
dities, are introductive of a new law, and not
declaratory ; and do plainly argue the king's
right before to prohibit some m them in ex-
press terms, otliers by necessary implicatioo.
I shall instance in some of them, the blat
17 Ed. 1. Ordinatio pro Statu, &c. UibenuB,
opens tlie trade from Ireland to Engfand lad
Wales, for the Irish commodities.
Whereby all merchants have liberty gnmled
them to im[x>rt their merchandize into £ii|^buid,
but so that they give good security, that they
sliall not go unto, nor commerce witb our coe-
mies of Sootlanil, nor others of onr enemies.
This law restrained the subject of no Uboty
he had before; and therefore, if the mefchant
had before sucli general liber^ or right to im-
port those commodities, his right of trading
would have excused his giving any seciirily ;
which is not uiiposed by Uw, otheiwise tiian
as a precedent condition to a right oonfmed
by the statute.
This law o|)ened the trade from Ireland to
England, as well to foreigners as Englishmen;
but it is extended only to Irish commodities:
for the ex|)orting of English commodities into
Ireland, continue<l to be managed under the
king's licences till Edward 3.
And if any did to the conti-nry, he was mb-
ject to fine «ind ransom for his contempt, as ap-
peared by 'Si Ed. 3. cup. 17. whereby the
tnifle is opened for English and other ooniBO*
dilies into Ireland.
By that law it Ls accorded. That all
chants, as well aliens as denizens, may i
into Ireland with their merclianilize, and I
thence li-cely to retam without line or i
This law' extended not to the English
chants, hut only to the aliens andd<mizens.
In the next chapter, cop. 18. the Engli^
are pro^ ided for, who had not so laige a likertr
granted them as the aliens and denizens bad.
The in chap, provides. That the people ef
England who have heritage and possessions in
Ireumd, may bring their com, beasts, and fie*
tuals, to the said land of Ireland, and '
thenoe to re-carry their gooda and
mS] SnUR TRIALS^ SfiCHAmLBsIL
fnclj, without iin|ieacli-
Thv liberty of exporting intolrelaaci, cpranted
!• tl» Eai^iihy b restrainetl both to icach Enc-
Ui who had tencU in Ireland, as also in tbc
■itoof the coiMnodities, tIz. corn, beauts, anil
vktoaboBly.
B^ the liberty to export from Ireland is
hifpii , extending to nil commodities, aocorrKnif
li the btkade of Ordinatio Hiberuic, wliicii
iMk in ell Iriah commoditiei.
38 £. 3. cap. 11. The kin^ wills of his
and BOliermnee, ^That all merchants-
a, that be not artifiiHMv, shall pass into
to fetch wines ; and that the Gas-
, and other aliens, may import; al
* WMi eaTcd to the king, that it may be lawful
* la MID, whensoever it ia adt ised hy his coun-
*cit, to ordain of this article, as best shall srem
* li hba for the profit of him and his com-
IW b expresaed to be an act of grace, and
' ' mm saving of the kinji^'s ancient prero>
18 H. 6, cap. 3. which I before mcn-
: fiir liberty of exporUitiou of butter and
m^ enresly saves the kincr's ri«rht, pro-
I die king may restrain the same when it
^ enaehim.
To Ban hy many ancient statutes of like na-
Inre, iM a^ of tonnage and poundage, 12 C 2.
whbh gives liberty of exporting divers com-
wndilhai which the kingit of England might in
aH ttMB prohibit, as to gimpowder, arms and
Maamitmn^ expmaly saves tlie king'^s right, to
pnhiliit hy proclamation.
9 i. cmp. 6 whieli is the largest licence for
fa^|B trade that was ever given to any Eng-
IwbaMB in pari lament, by opening of the trade
lilllpaiD, Fortiigal, and France, and the ilomi-
■boi thereof, fiil^ proves the kiog's prrro-
fMbe in tfab matter, hoth in the tiilc and Imdy
ifiheact.
IW title of the act is, * An Act tn enable all
* hb majesty 's ktving subjects of England and
' Wales, to 'trade freely into the dominions of
'Ipain, Fortugnl, and France.* A very im-
Mper title, if so be the kingN subjects were
■date enabletl tn do it, and had a right to do it
fty the common law, as is pretende<l ; and would
■I he restrained from it bv the kin;^. And no
dMibCcan be made, if such right had been, but
ttv parliament woold have vet^n it, being very
b^aistti74> at this time into all the subjects riglitic,
IM vcr\' jealous lest any of the ancient rigl.ts
tf EngTithmeB should be invaded by K. J ami's*
doling trorn another nation, and' would not
kwe eoiDplimented the king with the title of
m cBBbihisr bw.
The leaaons from the body of the act are
ttwg ; the reaM>na offered tor such general
Ijbily are eoly politic, none drawn from the
^^^arany ancient usage the Euglish could
1684.— 7Xf £. /. Compamf «. Sandys. ftSt
* barred from the free ealargemenl of com*
* mou truHi*: into those domiDions.'
Which were not true, if tlie other snl^ectd
had before a right to trade there, but the pa-
tent woutti have lieen void against them.
3. Then; are no declarative words of any
former right, but nnly of enacting, and prrovi-
sional f«H* a I'uture lilierty, viz. ' That H shall,
' and may be lawful fi*oin henceforth.'
4. I'hc-act, in exprchs words, jfirovides only
against tlie mischief and iiifavnveniences wbicU
may grow or redound u^un the patout, and to
redrc!i.<tany injury dune hy the patent
.5. The liberty granted, is restrained to be
in such sort, and in as free a manner, as was
at any tiiiie accustomeil since' the beginning
of the king's reign, and before the late charter
ofincorporation.
M hereby it appears, tliat.tkc nsage to trade
freely into these countries wiihout ii^ces»wa9
bat from the untraii<» of king Jaroe^ ;
The statute referring to no oilier free usage ;
And therefore this act did not over-reach any
charter granted by queen Elizabeth, astvas at-
tei-wards declareil in the next fiartiamcuts, 4
J. ua|i. 9. in the case of the charter to (he mer-
chains of Exct#T, for the French trade granted
2 Elix. which 1 litfore uientioucfl.
Obterv. 4. That all ac.t8 of parliament which
grant iicenre of ti-ade, do suppose the. other
fbunilation of foreign trade to liAiveContinuanre,
viz. according to leagues with Ibri'ign princes.
For no act of parliament ever gave hcence
to traile wi!h aliens, not in amity ; and if the
leavo be determined, tlie liberty is aospeniled,
Uiinigli granted by parlbment till tbc leave be
renewed.
Obicrv. .5. The last tiling I shall observe
upon the laws that give licence of trade, is,
th:it where lil)erty of trade is uriven by act of
narlianirnt, wittiont any reservation to the
King of hi.s ancient rigfit, the king in such
case hath so lM>iind up liini!M.*lf, thai he cannot
generally prohibit or restrain that trade
w herein he hath granted his subjects an in-
terest hy a law.
F«ir a general prohihiiinn or restraint would
amount to a re|M'al of a law, which the king
cannot do \iithout an act of {mrliament.
1'he law will he the same here as in the
casf^s wlien^ arts of |»arliament i^o generally
• Iha aot ia its rvdtal admit*, ' That by the
*iHbM painit forincorporatiue the Company
*ii tnda ioto Spaia and Portugal, his ma-
<)Myb Biha anloaota vrasa disabled and 4b-
taux.
pVOiJi'j
whore gont-ral licences wouM lie
void, lM:f»it!se tlioy t<viil to rc|H>al a law.
l/jiori iliis ground iIjh licrnr'e in Darey's
crsr. t;«r tli:*! j.i.rt w')«:'h cmci-mrd the iiM-
pnrfjLMou orf,rrit;ii ofi!'', w.is ji'di'-nl void in
l:".v, !ri cpwsc tor> gel; .r:?!. not iimiii'il to any
certaif^tv.
Hot fue king rmy in |.nr«i«'»ib.r, and err-
tni:i]y, flispenwandlicent J ng.unst pridiihiting
uiauites.
Aiid so he inoy I" pa:tif'ul:ir restrain thi
persoiisof J''s suli'rK't: lW»m t'oiiitj b<'yotid tirtj
seas, uot'T/lvstar-iiv.; imv of ihc laws wltif:li
giv'J IjCvnse r,;' lr:ni ■ :
But crt»Ji:i«: •:r::v.. ?» nslminr of prohihitiou
geuerailv. v-iieieui;*! oi);urlmi»vmt havesriven
'2 1 ^
483] STATE TRIALS, 36 CHAmLRS II. l6S4^— The Great Coup/ MmuijpJia: L^M
a general license, unless it be in special cases ;
and for a time, w here the interest of the |tub-
Lc requires it ; as of the plagfue, and ftimisb-
iof out of the kingf's navies, in time of war
fi'itli any prince. And tliereibre I shall admit,
that if any public law can be produced, which
t^ivfs liberty of trade tor all tlie king's sub-
jects, to the jud^, that this patent will
be void, as a restraint of that liberty ai^nst law.
Upon this ground the Canary Patent was
held void, beouisa ai^aiust the express liberty
granted by S Jac. and therein saved ; or of the
common law monopoly, by restraining the right
of others against an express law, for ihe benefit
of a few.
Upon tlie same reason, the grant of Philip
and Mary, that all succt wines should be
landed at Southampton, was against several
express statutes, tL'\A the rights of several free
ports, bf fore gran red by the crown to the city
of London, and others, as 27 Ed. 3. cap. 6.
whereby merchants-strangers had liberty
graiiteffto bring thfir wines to what port they
f leased ; and 43 Ed, 3. whereby the Englisbj
rish, uid Welsh, had liberty grant«l to fetch
their wines and bring them to any parts of
England, In^land, and Wales.
And therefore was repealed in parliament of
I Eliz. Rolls 2. Rc|L 112. whereby it appears,
that the parliament in the quc^en's time, were
vigilant enough to take notice of patents
against law.
The like in the case of John Peachy, for the
sole selliiig of sweet wines by retail 50 Ed. 3. the
parliament set it asiile, as against law : Upon
that grant un inhibition uiuii-r the Great »Seal
bsueJ, prnliibitiiifif all the citizens of London to
sell swcc't wines in Loudon. I'he inhibition was
revoked, r)0 Ed. 3. No. 13, anjl Peachy pu-
nished for <'\tortiun, by colour of the gnuit, 50
Ed. 3. N.33.
This {;rant was not only ngainvt many ex-
press statutes, some whereof have been citerl in
the anifuments in this case, which grave the
inerchant-imfiorters lilxrrty to s<>ll their wines
and mercliandize to w honi they pleased ; and
till tliey can produce some dearer alattite tiMB
15 Ed. 3. for giving libeKy of trade to the
East- Indies.
Having considered of foreign trade with
aliens in amity, and how it hath been mm*
naged in all times, I proceed ia the last place
to consider what the law determines of trade
and comniircc with alien inemiea, and conse-
quently with infidels. Here the conrideratioa
Is far diiierent from what it was in the former ;
in tliat, the common law was silent, until an
express prohibition by the king[.
But l>ere the common law ia a prohibitioB
of itself, and is at open war with alien enennfls.
Whetixer the commerce with alien enemies
without licence, be within the extent of aiding
and comforting the king's enemies beyond the
seas, within 25 Ed. 3, 1 shall not at this time
argue. But it may be worth while for the
interlopers who tratfic into foreign nationSy not
in amity with the king of England, without
licence, well to consider that point ; but before
the statute at common law, it was criminal.
Pasc. 13 Ed. 2. Hot. 13. B. Ra. in the trea-
sury. In an information against three iiersons
for trading into Scotland, then in enmity with
the king of England ; the delendants pkeaded
a licence from Cttstodts Trenge^ in the marches
of Scotland ; which was held nought, none
could licence but the king: thereupon thev'
olitaincd and pleaded the kiug*8 pardon. Holu
Prerogative, tit. Gaver reffo. 173. PI. 3.
1 need not labour to clear a point which was
not opposed by the defendant's counad, but
tiu'ir endeavour was to cxemut infidels from
being enemies ; wherein they have a diffienlt
task^ in rowing ogaiust the stream of the htirs
of all christian countries.
In thr ^reat instance of the Jews, who
have bi'n expelled, and their estates seized, as
of enemies almost in every christian couiytry ;
Tiiey call for autlioritiej, hut oifer none
themselves ; not so much as the opinion of any
one learned man, to give countenance to the
least amity bctiieen the English laws and In-
lidcls. Twill nut distrust the memory of the
many express grants to the citizens of Lon- I court to repeat the autlioritit^ which have been
don, some whereof were coutirmeil in parlia- j produced to assert the enmity In'twocMi iu6ddf
nicnt; butwasagiiinsttlio rules of the common i and the laws of this rt^alm f which are mors
law, l>eJnga restraint and monopoly of an in- ' than sulfieient, afiiT sueh solemn proceedingi
land trade, as sellin;^ of wines in Loudon and i against the Jews in Edward the lst*s reign,
other parts of Eon^aiid, undoubtedly then was. ' All wliioli have received a very short answer,
^ For when foreign iiicri'h;nidizrs are broofrht ' Tiir.t these reeonls are obscure,
hitlier to trade or tratile iviih, they full ni.'der That time hath hid the law from us, so that
the rules and govei nment of the <*(Miimoii law, ' we caiuiot distinguiNh whether they were acli
aiul the rolailing of tlicui here becM>ines an in- < (»f luw, or acts of violence
land traile
In Lainbard, 4^". Ed. 3. lib. a^s. ful. arC.
PI. 38 it was ruled, That wheu turi^ign mer-
chandizes are brought in, a con^piraey to in-
hancc their \meer, is punifihable.
At ooiuinoA law m lil:o manner, as a de-
sign by false ruutonrs, or otherwise to debase
the prif.*e<i fd* our inland conunodiuis.
The rea^^^ns of thost^ cases, which were the
principal pilbrs tu snpi»ort tlie nrginncuts of
tb* oJhep si Jo, prov> nothing tv o»ir case,
And that the reason why princes were
duced to use them so, mi^ht be, is
they ai-e under no goveiiiuient to
thorn.
But why the recoi-ds should be so darkened,
and the proceedings, in so eminent a case as
that of the Jews, so obseure, since Edward L
more than the cumnion luw, in the diriskm of
the rigljt and pr«>perUes of others, I could DOC
hear any good reason given.
For I idkc it« the prinriples of lair ufQl
STATE TRIALS, 56 Cuarlbs II. iGSi.^'ne E. L Company r. Sand}l$. [486
•ydb 111* Ifws w«re proc««de«l agiinst, &re as
deulj Uid iIowq is our Itw hooks, as any p^iut
ef law VI! bare.
For Urn caae <if Uie J- ^ *" ' ttius ; they
a intrchaDi of several
) m am'*p ^»'»*^»
liri noes ot
1 -con-
1 nmler
n^
dto ktng's protection, ami cinWed to contract
■Oil UM. a* any other nitrichant-^ttrani^er!^ under
jolbHacioJaci ; wliidi the Liut; mi^ht j^rant, «s
I lufv Blieirn, to an alien enemy, Whtlx-
lMn» mAojr «>l' tlirtu were ioJenuei), othrrs
lofn berc, afld dad ^real jiuAsesiiian of lantls,
is well at (eases and s.
Thai llicj an bii r n|^« by pro*
ftaiiMtia», aa tiell Ujo-^e mu ^rcsc never in-
ioBaiiad UfiOD tbe accsouut of their relij^on, as
ailMa anal andsita to the chHstian reli^on.
Ta wliom then will their lands, leases for
^ snit itucti ti<:T.si>nnl eitales as Ihey
laotiilierty
Hitlawatljn ^ . ;. And the
laajiamaiia tlij^t Mivite iiboui their estates, rlid
attlai o«t between the king and the ilefemreless
Jews, (aa the deleudants cimnsrl terms them)
i^lbt^' were e^nt'; but the kiDg' and sevei-a)
ibaiuia of tbeJens, vrho well knew the kw,
aniartra able to defrrnl thur rii^ht.
t^ Ibe '•"' ' '' - Tile^l) I
wAaiAa n the
kia^aral «* j-.^... ^<. j^., ..i^ ... ,.;'.>Liop of
YlA, II E'lw . ] . ivhere the oasc wax ;
TTi' tirh>T of i'idlin^on wns inilebtcd to a
Jew AiWr the banishment of the
Je»-v '^^ ti>et ivith the archhishop in
famm^ aJiiA prevailril ^vitli turn to hcl{» hiio to
f \ that «rchhi«tio|i persuaded the
he vrixi Uiitnd m conscience to pay
l« the Jcw*a attorney ; who did it
aoeaediBirljr.
Aiii4 all tbis was after a prodaixiatjon issued
Jbriiaaavcry of tiie Jew'i debu.
FarlbiaeoitcettJiiient and trespass, the arcb-
md by the k lu^, betbre the council
la pairbamimt, and Uid it to his damage of
taiM/. To which the archbishop appeared
i«i piaMed, and lo avoid a tridi by a couutry
tBry« « iba rccoixi n^Titions, be was put upon
w attofpanoe to tdl the truth.
ba cotifesscU the information,
araa gt^en against him, and the
\ tafcoed to tlie king".
Tba paaaows of llie jud^trteai fully declare
tba law was ; * U,iiia idem Ejiiscopus
,t quod poit eAlUum Judteorum
Judro »iitelle\it, (jUod pecunia
iia f^^' * '■ f vrur, et posteuruni
* ii|a^: n\U et in regno
lam .vU^;^ 4 nam atta boua
^a«, Itisi iKittiHio Hegi remaoserunt,
\ fuarunt, '
TImI be f!i4 aul only conceaU but contrary
I la \m fjkb, wtMerviii ba was b<^uud ti* the kiti|f ,
}mvmAtti iba pnor ami coofent, fur satiate
^Tlboraivla, la^y. Fbu i*^. 17J.
Tba itabiiibiiy dU aot Ooabt of ibe law,
though the ilefendant^s oounsel do, but a recourse
to < ,, ' 11 ileceitdthekin^,
ai': ice.
i «ji» i iii/j'L* wui i»c uiijiyt'd to be a judg-
ment, and a judyrnetit llial declaj^es the law at
plainly ajj ever judt^ment did, and of a hJt^ber
nature than any judjrfnent in Westio taster-
hall.
In the sam^ year several mean lords pc*
tition the kin^ in conned for the arrearagen, io
rent and services, of the hands the Jews held of
them Wfore their bauii^hment.
Th« council onswereiJ, That for the time
Jews held it, it was their fault not to collect
ihem ; for so loiitr as the king held them, he
would pay thera ; for the time they were in
any granules hands, they ?<hould have recourse
to his gninlees. Pla. Pari. Riley, foL 129.
Heix2 the kmg*8 title to the real and persona)
estates of the Jews in England, is asserted by
judgment of the highest court of judieattire in
£ne:Uttd.
The principles of law, upon which lliejad^'*
inent past against the Jews, are frequently laid
down in our book.
If an ahen amy or enemy purchase lands,
the kin^ shall have thetn and may seize them
at txny time ; and though the alien died seized
tip«»n ofiice fouml, the king shall have themi
ami not the lord, by escheat.
This my lord Coke reports to have been re-
Rohetl liy lill the judges, Pjsch- '^9 Elii, in sir
James Croft's CSHC, 1 Inst. fol. ^.
There it was also held indeed, that if a de-
nizen died seized without hetr« the lord, by
escheat should have the land, and not the king |
but that is in case of a compleated denization
where the issue of the denizen is capable of
ioheiiting. But in case of Jews or infidels,
the denization was void, being made to them
as strangers, without taking notice of thetr en-
mity to the christian religion ; and so the king
deceivc<i in the granf.
And an infidel, though bom in England, ia
not inheritable to the Taws of the land; ifba
should, the laud might soon be over-iun with
Jews and infidels, and ao redress to Lie had :
so that neither denization nor binh did alter
the stale of the Jews as to inheritances witbio
England, but they remained aliens under sale-
conduct only.
1 fan alien enemy had a lease of lands, or of a
hou.se for habitation, the king should have it,
within the same resolution in sir JitmosCrotV^s
cftse^ and not any subject that should enter
upon him«
Nay, if an alien friend, who <(bould take, a
houikr lor habitation, should die, or leave the
lauda, the kmg should have the lease.
But then^ how standi the Uw for the goods
of an alien enemy without the realm P
Mr. Podexfen,' to urgue infidels to be ao aiten
enemies, urged from the mwcliief th^t might
ensue, that tUeu every man n>ight »ei»e the pet^
sons or estates of Jevrs and nitidrk; bi^ ausa
by law K\itt\ person might kcizh the (letiMms
and goods 01 ahen aoeiiues : and for that citaii
miei;
expressly to the lung.
Which bcsidcfi the authorities I bare pro*
dnceil, expresbly appears by Mafoa Chafta,
chap 30. which provides, thatiftbemepcliaat''
strangvrj be of a land which makes a war
against us, and be found in our realm at Iba
b^innintf of the tvar, they ahali be attached.
4b7J STAT£ TRIALS, 36 Charles II. itis^.-^/lfe G^gi Ceua^Mtmafain: [MB
the authority of 7 K. 4, fol. 13. Co. S li. 7, mies; but that potrer was leieiwid bj law
tbi. 1j, b. which aa- but the same ca«c, the au-
tlifirity of 7 IC. 4, being" only lucntionefl in
course ; anruuiciit in thie Itook of H. 7. The
authority of 7 K. 4, w (;oud law, but n]itiai>plied
in • not ubservini^ the diflerencc l>etv>een the
tunes of tlie cneoiy's,.or his goods uomiag- inio
the realm. ■ uc^imiiuK vi luc ^wr, "iv^jr oii«u *^i mwmtiwixgm^
AiWopcn war proclaimed, Vherebj allthe ' without harm of body or gooda untU it te
subjucts have notice whom the king batli dc* ' known to us or our chicf-justicc faow our Bier«
dared his enemies, and against whom they \ chants be iutreated there,
are to join in deteiice of thcoiaelves and the . So that the disposal of their uecsstnaod
kingdom ; if the persons or goods of such ' goods was wholly in the king. And the liboty
enemies come into the kingdom, any subjct^t j the subjeiis had* to iakermeddle with foreiga
may soize them, and ^in a prQ4)erty in the : enemies, extended only to such who cams hot
goods, as a prize taken m open war, according after a war proclaimed,
to the authority of 7 E. 4. And indeed the By all which, the king's title to the landi^
laws of all nations; and that not only of debts anil personal estates of the Jews, after Iht
enemies good^t, but of Englishmen's goods ; Vvoff had detentiined their saie*condiict, by
taken by the enemies ; (wherd»y the property j banishing them out of the realm as infidels,
was left) and bronght hitlier by the same au- i cridently appears ; and those dark records t«-
thorityof 7E.4.
Which plainly shews the meaning of tlie '
book, t0 be of goods taken in often war ; where-
by the property of the goods rest in the captor {
UN lawful prixe. {
But wlien the persons or goods of aliens arc j
in or come into Kogland under safe-conduct ; ■
and the satc-conditct l»c not determined by the | m..^* ...^ ,r,»v».<w^ «,. ...~ -<*'^* ^ —..^..^^
kini^:, either by pi-ndamation of open war* or I and otlier Christian princes, I ully argues ihe
otherwise, no suhjccl can seize the ^jerson or i contrary ; for the making such treaties, ifl
gootls of such alien enemies. | order to trade, proves that do trade coold be
Upon this (litference^ the law was settled, .')6 managed with them, be<bre the ti«aty con-
fined in some measure fi-om their obscurity, by
tiie constant tenor of the common law, pmc-
tised ever since.
But dmli nut the making leagues with, and
sending of amhassadom to some infidel oooa-
tries, argue that infidels are not ahea enemieir
No, certainly.
But the |)facticc of the kin^ of Engfandy
H. 8, by the jadges, Bro. Propetly, 38, in the
abridgment of the rase, 7 E. 4.
That w here a Frenchman inl.abitcd in Eng-
land, and a war was afterwards pHnrlaini^,
no sub^t ctmld seize his goods, because the}'
were here before.
But if he came uHor the war, anv man may
seixe his person and goods, and sliall have a
property in thrni, and in such case the king
bhail not have thfin.
And 8<) Vi'us it put in practice, saitli the Iiook,
between the I^nirlibh and the 8ci.tF.
Aiid w!)eii Hulloign was taken b\ the king's
snbiecis, 19 b)d. 4, t'ol. 6. pi 4. where a debt
was owin;i by a subject of tho kin? of I><n-
ninrk's, and a w or hrraks out, the suhject shall
not ivt:tin the dt?ht. but the kin;*: ^liall have it.
Q v; ( >r '> p . 4 , to 1 . 4, T) . pi . 0. 1 n fiiisc i mprinon -
mrut the detemiant juytitit'S under the kini;\s
commission ibr apprehtndins; a Scirtnhman ;
thtrre Ixini; a war bntwiion (he king of Eiigliiml,
and the kin^ uf Sci»tland. |
I \\c\\ r r.licwc'J, that ww alitn eneuiy, v.hirli
came ovor hy the king> suie i<ouduct* was as
nuu-h u uin* tlie protc^-tivii of the'laws, as any I
uhfn aniv whakMKTr.r ; and no subject couid :
seize or inolist his ncrson or goods.
And tiir deliTUiining the hnfe-condn<:t by
the kin4(. left the alien enemy in the sanu con"-
di!!'»u as other alien em>mies, after war |iro -
ciaiim'd, who were liere More uuder tlie ge-
neral safe-conduct of the laws.
In which casi* the subjecti had no liberty to
sitf a eichtr the persaus or fSodBof aliea cm-
cluded.
5Iy lord Coke (who wssof opinian that aft
in tide I is ' perpetuus iiiimicus') yet agrees with
otlier learned men, that a league of peace,
{vi hich is only a ci-ssation of aU hostility) and
a leaQ-ue of commerce (which aomuals to no
more than a reciprocal and general ssfe-ceii-
duet to ear.ii other's subjects) may be HSida
n-ith an inlidel prince, 4 Inst. fol. 155.
But he is called * (icrpetmis tnimacos,' firom
the practice of the kings of England, and ether
kings and priniriw, not to make anv leagues af
frimdfthip or altiancp with infid*! princes;
1% hc:her restrained from making such ieagnci
by the niuiiici|>al laws of the several Chrimn
roirntrics, or the general rights of ChristiBnityy
ia not to toy pur[>08e to determine.
Hut either a cassation of open hostility, or a
f^enera! sate -conduct, hy a treaty of oomnwrca,
hinds r.p the suhjects hands from intermeddlMp
milh the goods or persons of infidels.
And Uieretbre the Art of Navigaticn, thai
meniions the goo<ls of the Ottoniaa ooiiatry,
makes noiliing to the ca«e.
For by tlio treaty of eommorce with the Ot-
toman cmpirr, thoy might be brought in, and
hy hi.^ suhjcrtfK bciore, under a general safi^-
ciindiu't. But as to the Mogul and other I»-'
dian prinres, there is no leagne eC neaocT'
commerce between tlnsm amdl the aings of
Encfland.
Which makes the case of the EMt-Indhi
Coirf^iany stronger yet, than thetcf ihetMcf'
CoB[)aay. - -
M] STATE tillALS, SfiCnAitLBS 0. l684.— THe jE. /. Cmpany t. Soniyn. [iSkf
TImriil
pfeil nav^
1 coDcdTe, that upon these' iirin-
opfei lliave Uid dmni la\r strongs ennujpi.
Airf herein the case of the East- India Coiu-
piDY b particular, for the king hath made no
MMpK nf them.
But by the letten patent, hath given fhem
ipwiii power to make mx m peace with anv
iifrJel prince for the benefit and better ad-
vmBfe of their Irmie.
So that all other subjects are merely pre-
ctrimK, and have no pretence of taking any ad-
natagc of any peace ma«le by the Company.
)ia as to them, the Indians remain to all
forpotea alien enemies..
Hcriiig^ novr sheitn, thai all forci^ trade
rfs upon, and hath brcu managed by
mod royal lit^ences, cither by letters
(t, or ftpecial acts of parliament ; and
TWt thekinipinay prohibit generally, where
■0 »rt of parhament hath intervened to the
«mmrT ; and the common law prohibits trailc
with inlUeh, and no act of parliament has pro-
viMferit.
8o that trade cannot 1>e managed but by
the kinff's licence, in some such manner :is is
dmM hy these lettei-s putc-nt to the Com-
Thil the answers to all the authorities and
•igMlUBts made use of by the dcfendunt's
emsd, which I hai-e not answered, lie open
fsr the authority of the Taylors of Ipswich
CMe; aai the sereral other authorities of
r trades, and of inland merchandize,
!• which the subjects have a right by common
hw, nake nothing against our case of foreign
tfiAe, and to an infidel country, to which 1
hafeaipiad the subjects iKuc'no rigiu, but
wefepiohihited.
Hie opinion of the Taylors in Ipswich t'asr,
Am m pstent to hinder trade at sea is voitl ;
ihtfpneraUy to hinder all trade at sea, is no
Mt good lair : because many lieencos then
m laa|r, mud several acts ot pari i anient iu
■lycnes liad granted liberty' of irade.
Bot in the same case the restraining cf trade
li a pBTtietilar country, for wliicti no act of
yniMmil had made provision, is allowed ot
■ the case of the tirconland Patent.
IVRwas no authority produceil, and I be-
iefecHumt be, that trives the least connienance
fcrliberty of trade uith infidels, or to inii»cacli
Hekiag^B prei-ogutivc of prohibiting trade to
faofu ooantrios, u hereto licence lor trade had
Mheen granted by the king's letters patent,
• Iv arts of parliament.
Ine ■TC^nmrnts drawn from the reason of
it coamnn law wei-e two :
fk% Fnim the liberty the subject had to
Lflaad trailc into all foreit^u p:irts, for which
BC cited Kit/hrrbcrt and Dyer. ^
iWtlibcrtv, and tliose' authorities, 1 have
nlyaicamined, and shewed that tlie subj<'ct
Iw liberty, but was pmhibitod by the com-
M Imv to trade with infidel countrirs.
ilh fbroiur .„ ...
lion, till 3ie king
i Ac liberty to trade with fbroiurncrs in
r« «ii boi « bare pormisKi
3m
Secondly, The other ground in«sted on was^ .
that all ingrossing of merchandise was unlaw-
ful at common law : and therefore a (latent
leading to authorize nn unlawful ingn»Mio); ia
void, as a monopoly at common law, and de-
clared so by ^1 Jac.
Here I will joiu issue with Mr. Pollezfeu,
and do admit, that if it be an unlawful in-
grossinor, nvbether by the common law, or anjr
statute in force, the iinteut wiM he void.
And he iuust admit unto me, that if it be no
iinlawfa! ingrossing, it is no monopoly at com-
mon law.
As he did in his argimicnt ingenuously ad-
mit, that if it wore no monopuly at common
law, it is not witiiin the statute Si Jacoln; so
that tlie question between us will turn upon
this single point:
Whotlier the ingrossing tlic foreign mer-.
chandize of India bo unlawful ?
U]>on what I have already said, it appean it
is not. For I have shewn that the common
law regYinled, and made provision only for,
merchandizes within the land ; and though
when foreign merchandizes came thiiher, they
fell nnder the rules of the common law ; yet
the ingrossing, or sole buying of tWrei;:;n cotn-
moditics beyond the seas, and 8i>l!in:j: in gross,
or by tlie niei chant- importer, was no oflcnce at
coininun law.
Neither is there any statute that makes it ao
offonpc at this ilay.
It is ti-ue, the statute of 37 E. 3. cap. 5. pro-
hibited F.nglibh merchants to ingross merchan-
dizes.
Rut the incfi'haiit-stranger was not bound
h\ that law : and tlint slatnte was the next year
ripealrd, as to the F.nglisli niKichauts, 3» £. 3.
cap. '2. And that at picscut X\iv law is, that any
iut;rrhant muy buy in (4-1-oss, und sell in grosi^
appeal's by tlit tvsitlr.tiuii of all the judges,
Mirh. r>») V' 40 Kiiz. Co. ii Inst. 19(j. iu the
chapter t»f inifrossin?^.
And tho rt.' solution ^pcs a stop further than
tlio MK Lclianl- iiii|;i>i'ter.
I'liut !u:v p'.rsim in:iy buy in ({Toss of the
UK rdiaL)l-iiiii)r)il(r, and sell Ly retail.
\iid it fol!M>.> I'V a clear consequence, that if
]''n'j;fiisli iiiiveiiuriv* i\i sncti places, where by
law \hvy lia\ ::• a n^ut to tra<le, may iiigross the
cumnhjditv of *.he plar«^ \\itUout offence; the
ingrosjiiL;; 11):c:l.i commodities of auy place*
where Ihi.- >,.d)j .' t c«nnot tra<le without licence^
can be no ar<;iniK nt to iuvalidiite such licence.
B(H^au.s(' iiiuros^iog of fort i;;n merchandize^
hy any m<'i(liuiit-iiu|>oi-Ler, i:i no crime, but
lawful for every trader.
And then tlie cdusc^qncntx; of all ini^'-rossing
will l>c the raising of the price of the couuuo*
ditv.
Vet itbcin:;: a c'nimoili^y oi iureiifu growth^
and not sucli iis, ili:- law liuth an\ where dcier-
mined necea&.iry lor the .sup|i'jrt oi lilie, as vic-
tuals and .suc'i 111.'* ;
Tiie coiuiiioi) \',t\^ iiatli r.o regard to the
price, but l«*avf.s tlit> luuichant tree to make his
advantage of the dan^eious adventure.
491 J STATE TRULS, SSChaslssII.
The adranta^Gs that some subjects may rc-
(peiv« by the trade, and others may be ilebarrod
fi-om, which are alike hazardous, and depend
upon a multitude of accidents, arc no measures
ot right or wrong, to pass a legal judgmeut
Qi)on.
But if the company have a right to trade, nnd
others have not, as 'l have argue«], whatever
their advantage may be, which eunnot be es-
timated till they have wound up their bottom :
The ingrossing of the Indian commodities
cannot be infecteid with the tauit of a mono-
poly, which always suppases soractliin*; done
against common right, which is altogetlier in-
consistent with having a ri^ht due to the king.
For it is of the essence of a mounpoly^ ac-
cording to the definition thereof pro|>osefl by
Mr. Pollcxfcii, and taken out of my lord Coke,
▼iz. that it tends to restrain such' liberty and
freedom the subject had bdbre, oc to hinder
him in his lawful trade.
Sa that every sole buying and selling a com-
modity, if it l>e lawful, can be no monoiK)ly^in
the legal sense of the word : which is evident in
several taufl commodities, where the sole buy-
ing and selling is coupled wiih a right.
The king may grant to farm his pre emntion
of tin, whereb) Uie grantee hath the sole buy-
ing nnil selling, if be plcaseth, of the whole
commodity.
I^urh a grant to Tidman a foreic^ncr was
oomjilaincd of in parliament, 21 L. S. and
pray Of I by tltc commons, that no such mcr-
chaniliz(> be suld, but to the commonalty of
merchants.
The king answers, that it was a profit Imn
longing 10 the prince, and every lord may
maku liifi protlt of his own ; Ql E. 3. nu. '.'9.
That this fUiU*. right oi' buying aud selling
was ever enjoyed, uppcaiN by the case of the
Stauuarios, 4 J. Co. 12. fi)!. lO^iic 11.
8o of hII gold and silvtT dug within the
rea'ro, and of all roval fi:»hcs taken; the king
and his grantees shall have the sole dis{)osaI, or
right of selling tlioni.
Jt is no just answer to these instances, tlint
they are inhcritancrs and ri^^his \c^ted in the
dukes of Coru'.vall ami the crowu:
Which they iu;iy dispose t') whom tliey
p'case. So is his prcmgutive of licensing fo-
reign trade. And as to the quest iu:i of a mo-
nopoly, which implies a wrong in restraining
the rigtus of others ; tluTC is no. difference be-
tween ha\inga right existing, which may be
gi-auted, and having a power or prerogative to
confer a right on others.
For it is the having t!:c right to do the thing
that makes it no monupuly.
And therefore, if the ling have a right to
license some of his subjects to ilo a thing,
which other of his subjects cannot do, or are
rightfully prohibited to do ; whether the thing
granted were before in esse or Jc novo consti-
tuteit, it is all as one to the validity of the grant.
Tlii^ is proved bv the instance of iairs and mar-
Whether anciently in the cvowni or de novo
I6'8i.— 7X« Gred C(tteofMon§politi: [491
erected and grantei) to any subject, the eue
will be the same, as to the subjeota sole right
of holding the fair and market exduaiTe of
otliers.
Aud rights conferred by the king's prcrogi-
live, are every whit as strong as any right
granted out of the crown, which wis boere jjI
es9e there.
So that the pretence of an unlawful ingvoss*
ment and monopoly beinjf removed^ by Mr.
Pollexfen's admittance, it is not within 21 Ja^
cobi.
Aud it is plain, it is not witliin the words of
the enacting part of the statute, without lbs
akl of the proviso: for it is expressly, limited to
grants made, or to he made, tor tlie sole bay*
mg and selling, or using of any thing within tks
realm. So that it was only the liberty of the
inland trade and traffic, to which the subjcds
had right before, that was fenced and sccnrei
by this statute. And this patent is not tor Ibt
sole buying of any thing wiihiii the realm ; and
tliough the selling be here, yet such sole sell«
ing was, and is la^vful, notwithstanding any
law or statute niade, as I have shewn.
And the proviso was only added, to manifeit
the plain intention of the parliament, not to ia-
meddle with any just prerog^ve of the hiag,
which he might, and lawtully had exerdscd
and used for the beuctit of his subjects. .
Besitles, to put it i>ast all scruples, thts.coB-
pany is within the express words of the pn»-
viso.
It was a company in the reign of queen £li*
zabcth and king James, as is recited in the de*
claration.
And by their charter 7 Jac. had the sols
trade granted, uiili the exclusive denses to
others.
And if the parhamcnt had not adjudged this
Com|)any to be for the maintenance aud en-
largement, or ordering of that trade, as well ss
the other Cum panics, they would imdoubtedly •
have made a difference between thom, np»
that charter of 7 Jac.
For this very parliament was inquisitive inlo
ail illegal patents, which in the least tended to-
wards a momipoly.
Anfl if they had thought that cliarter s«ch,
they would nut have been tender of the point st
that time.
The objection made from the different OM*
nagcry, by joint and separate stocks, is of M
great weight, because it touches not the omb-
tion of ri^^ht ; whether a Company may MVC
a sole tnuic granted, exclusive to otners.
Ftir every Company draws a charge with
it, which those not of the Company are nst
liable to.
And if the subject have a right to trade with-
out being of the Com|Kiny, he can be no msei
compcllcfl to be of the Cum|Muiy, which no-
nages and trades upon se|>arate stocks, tliSBif
one which trades upon a joint-stock.
And the objection, tlutt onlering of tnii
within the statute cannot be intended of UflM-
sing of some, with exclusion of otherii is «f ■»
1^
TRIALS, aSCtiAiiLM n, I6e4>— 714^ E, I Cmpanp v. Sani^t, [404
Foe it couW not b« intended of
tenia for foreig^n tfatle before tl*at
so in beiD!^, were patents of exclu-
K than the Cnmj>aoy .
e well cousitiereO, all the aiuliori-
w there may l>e Cotiijifliucji oi-cctetl
eminfT ami ordciintf tbreJtrn trade,
L*y may lie cxclusiirc to oihei*s ;
ug" posiiibic that a foreign trade
f any rule or jfovemment, by any
t whatsoever, if carricti on by per-
lect to that rule am! irovemmeot.
!?ident, tUat no rule of any Com-
fiirther than (hose of ihe Compa-
evcry mm, not of the Company,
|Mcti li^de will not he under any
fir the Coraj»any, or by the Oom-
acli patent will be only for Iteep-
tw persious witliin rule and go-
ut not at all of the furcig^n trade.
|fit^c«B5ity must prosloce the ruin
filfy, and in all pn>b4it»ilUy of the
!€r» trade without hmitation^ dis-
iU tjii^ rules of ibe Company, and
!e to the charji^es aud exptnse^,
€ trade must be i»upported ; they
|tt huth untlertrell the Company,
find anticipate the markets, thuu
■^ can Tend more effectually lo-
Mructiou of a trade, of grreat oon-
liing^ and kin^om. '
he factorie? and t»toeltof the Com ^
fi*^n {larts are obnoxious and liable
les committed, either to the natives
sot ol' the place, by an interloper
[ rule, by the geuenl b«r of re-
ther piir»tie the argnmenta of
btnoouvenirnce, but do rest apoo
ph 1 have cfideavouted to make
p subject had no ri^it to this trade
Ittw as a foreign trade, but mig^ht
d.
m leafn^e or royal licence bath in-
^?en such ^neral ri^ht.
breigfn trade hath in all times been
d managed by the undoubted pre-
Be erown» in licensing somer and
^krs. And th:it in all cases not
^pv act of parliameni. And that
Hd licences have recetted aJloiv.
IB parhamenta.
io act of parliament ever gvte a
esty of trade, much lets to trade
I.
the common law pfobibits tliis
itfidels, as with alien eoaniei,
le last place, 1 limve t^lIM ao*
rmc^pal authontiefi and
il to impeach the Cooipaair'a
AAfmfmayU
1. That the fi^ranl to the Company, oftlia
sole trade to India, exclusire to others, is good
in law.
9. As to the second point, whetlter the
action will lie admitting the Company have
a right to the s«>le trade there, by these* letters
patent?
I shall spend but a little of your time a!»outit.
lie cause if the Company have by law the
sole light to the trade, the law will give them
a remedy to redress injuries done to their
trade, for recovery of their damages.
Which is properly by an action of the case,
they having no othrr reniedy^ to redress them*
selves. For a prosecution for a contempt to the
king cajinot be insatisfiiction of the Company's
damage.
1 shall thei'efore rest that point upon the au-
thorities already produced by the plaintiff**
counsel.
f shall only apply answers to the objoctiovit
made by Mr. Pol lex fen. »
Obj. 1. 'Tis not alledged the defendimt had
no licence from the king. ^
Atisw. The complainant's case ts sufficiently
set forth, that they had the sole trade to the
Indies granted to them ; and that the defend-
ant had notice theieof, and yet traded contrary
in their grant.
If the defendant had had the kir ' ^- ■" ~.^ to
come on his part by plea, then the ^ i e*
of^as agiiinst the plaintit}*, would h.;^ . l..,..^ lato
question ; but he rests upon the licence* by sta-
tute of 15 E. 3.
Ohj, 2. They hare sbewn no special loss or
damage.
Amw, Neither need ajiy be shewn, no more
than in all other actions of the cax**, ^vbcre the
right of any person is ir/iured, la Kcp* 113,
Mary^s case of' a commoner who hath no estate
in the laud, nor the sole n^ht in the profit ap*
prender, comes not to the ca&e; the law de-
nies such commoner liberty of bringing hia ac-
tion, without a special damage, to jirevent a
multiplicity of actions, which nf"-^^ ^^-^ -^^rne
ground every oomiiioocr woidd • to.
But otherwise h is, where any : , iole
piscary or profit ap[»render , alter setting forth
the special case, and wherein his rwht ii ia-
Tadedf a general dectaratioa to his daoiai^ k
sulBcient, and the eraininatMO of the particii*
lars will belong to the jury,
Obj, S.'That the action is gromided upon
the rt:<tT^int in the leUcfs patent ; and Ibat re-
straint ti nut absolute, but upon pain of Ibdel*
tore of ships and |;ini4s,
Afuv. TbefirsKprt is mistaken; Tor these-
tioD ifl grounded upon tke pant of the whole,
entire and oolTtiMe and traffic to tlie Indies,
tolbroed with ^ kiag^ evfcneaiit, aol to grut
liceoce to mnr otboa^
And besides this draw of the pnaliibillov,
liiere is a distinct daose of grant, that none of
these countries or places shall b<! vuited, fre*
ofUiel
4
4}aeiited
hj;aay
^ king's
jecta, doring the comtituaiioc of this patrnt
wbidi bathuo penaky annoDcd In il.
4&&] STATE TRIALS. seCRAEtts IL 1684.— 7i« Gmt €m^
V\if>n tliese g^r&Dts tlte action
of:
mnU if llicre were no cbusi- ofi , tkw^
tmdmi^' to Ibf^e itifiikh l»\ oiiiv>s wribuul H-
CPUCe iVoui tUe king, i^ enU't^uiziug- a trsde
ootoiilv !i|;uit)st the prolubitiou uf rhe comuiciQ
UL¥t\ but tbe t^ug^s ex|)ress ^iriilithitiou.
But iljc ucitm is not fouiideil iipun ibis
cUu«e^ but u(ioH olluT ckuses <>i' coulWrinif a
hi Ty itie sol€ traile
iiy t'ltod
»oint« agTiiiwl ibc actitui out oi' 1 1
Thf
auklM^rity i'ltotl t«]^ Mr. P^tlexfeiL, as an
poir
88. uiiii Hf'lb Vbridguieut, tut. 10l5
authority m
6, m lkrc^*8 cajsc, tbal fttimuti*^''
Of t]is|ML-U'4ilioi) to Darcy were l
rting fbreig:n card* coolrary t<
irj
IIU-
k'Of
Id. 4. yet the action will not lie, rencbeih mit
our CAse of a rii^iit rouferreil by liie king's
]ireri>g:ativey aud not of ao^ dispenaatian (roin
at jie«al Ju»».
Before tb<? statute of Edir, rT. every subject
might >mj)«rtL foreign cards ; lb(? U^ltUe re-
strairi!> (tiatlibfrty un>^ ' > ^ ' f ut*.
Tfie dts^iem^tiati oi tbc
Jaw, works no inttrt»t uut a i».Aic t-A* uipUou
from the penalty ;
Wbidt iu tltc case of 8biivv lotd If awes, was
h^fU could not beiu^i^aed over; aad ibercfoie
grariti* I Ik J I in* iiitr. tv (k^pen^tiuns, Ci»*iv«y
noiiiSt I y other huhject* uUo is
t\o otlh . li-J frora doiti|jr the tbing^,
than by the eUituleucubT a peuiilty.
But where tlie kiug^ bv bii> jjrt'iogaiUve may
graiii ib(f sole u»€ ot a tbrag, (ai^ lu case of a4:w
inventions) tlie grantee halb an luterest aid'
fident to support au nctioa Qpoa the case^ as
lIolU is of opiQum. Tbc next paragraph, fbl.
ICKi, oti. IT. That if the kin^ grant Uiai oone
eusJl use such a thing ( wbereot the kiug h;ith
|K)wer to gr^uitf) but tb« grantee reserving a
renti if an^itber umc it, aa action upou the cai»«
fvill Ii« ;
Wbicb is a St rung; i:r authority in |»oint for the
action, than that ot Darcy'^ ca«c oi a mere
dism^nsatiou, i% sk^amst tt.
And iherefori' liar»u^ proved tbe tyrant of the
ioU trade to be i^oud^ the action is ui^ll
brought for damages ^ Apd pray Judgqivnt Ibr
tbe Flaintiffig.
Mr, WILLIAMSS ARGr>lENT*
termino 8. Michaetis, Anno Itegni Regiii
(.Car, ISecundi xiLxri. Annoq; Doiniui. 1684*
he Ea^t> India Company v. Thomas Saodys.
Tbe questions in ibi% cose are two.
1. W heiher tbi¥ grant of sole trading to this
ompany, excluding all others his ^l^je»ty^s
^t^ects'wbonre nut utembera of ibU Com-
bany, or within tbe ((uaiilications of ibta grant,
he a legal ^rant ?
C. Admttting it a legal grant, if tbia action
ht tnalntaiiiabte by tbe coiupauy agaittfri tlte
defendant ?
That this grant it kgal in all iti f^r^ I do
not Jind that the oounsMet tliat argiMid fox a,
hatie «ad«af «tir«d to im'^^n.
Mr Attorney baik adfuiiioit in lib
it IS not,
Thai sotiie parts of it are agatni^ taw«
itvanifest, v'u. it indicts ti\e\r%\ ^wt^aHU^s, uj
persotiis offending ai^my-i
leitur* of th^-ir ^m^m rio'l
»ba:1^ ^-
do tin
h
witli
shall i'il ir
kin^f lU^
ho inlprLs•
llOt to U
offendei^ b^cf»fiie b*>uiMl to i<
tbe kum oi' lOQOL at leaAl that ^u i
not at any lime aiWr tail m traiiic itiio Aa|r
plact^M nicnfiomHt in the ^raul.
It gives tbe company iiWwty to lictrnte |H7-
mtiit to trade withui tlia limits of tbi» grazH;
and that the kin^, bis heirs atid ti
siaJl imU durjui( the^ kiient palmtt
)i und hbcrtr oC
the ;,....( ,,^, ..,, J ;<»■ power f4 lUtf
company ; and they are to disjHis^^ of Utr ti-
hertv iiiJ nnnu ru to si^rte their own Co»-
piUl %
111 .^eize goods and sbipi,
and mipriittni tbe king's aiaA^iiHSia* accordmf t»
ibtir grant they will have a ^nt^s ptanfM
Uve ov^r tlie subjert iban his tti^iiaty M;
they hsvf
pers
ing,
ration.
'file jodgment upon iKc f - • - - ntenl .
', I shall have occamon to i ir lan^rli
\ herein^ by ihti opinion qf ai. .»^ j -^t^a, c
ttiv peuiilties of tltat^ a^-cetng in
w itb tltese. Tbe suMatios nf tliiii waa advi^
ted, at least not defend^!, by Mr. AMumf
Genetal,
Thi^rtf^iint docfinr Mjianr
duruiait/U ovtn the j m^ •«
the subject, nml invt^l liit C^ :
prerogative of I he crown to 1;
ship^toii^o in ibeselia^iMs hut \i
the crown, the kinir^ his k u^ ami
ofa!- ^ ityntive; Tf ^ ^ '
hCf (i;e it, tbi
in iLa-v .,i..,^ without tl:
pany« Vov us thiii greai
peuaed^ it do! 1 1 not *«ril'
but divest the I
Mr Attorn* ;
not argue for the Cunipany
without at^iiui;^^ ag^initft the pn
king. Tbev artf ot the king'b £4»ufi«el tint
argutid for thiis gratil, but it i$ oat to be behfti^
they wrre of ib« king's ouhuimbI^ or 1incaiLi,lfa^
drew it or advised it«
Wc that argue fi>r Mr. Sandy a, argne l»
the kiitg'H ikrerogative : That the bn^t ^
W4tlisiauditj|j; this grant to this Vaa^it^^ Mf
subject than bis tti^liatjr
power to aeisee goods, mid
iai, wtQiout legal
runnol do ; nod IbllAUsr
, cdntitu ;;-iant to any auhi«c| or eoifv^
! Mf' Swidy^ m toy oiber tuKjocS, to
tQ ihmmm Itmite; And il doth not appetr
^m tMt raooni but >1r. Haaayii hiitb tUe
lopg^s lk«iic># to trnd*" iu |iH«« places ; be
Ukf hetmtr any otbcr subject to trnde iliere*
Amllb^t '^<'' lioo *ii tiK .Tint cannot ex-
it frill %^ ibtf deftndAnt in
» !■ nmd ihe pkintittk* action* If tlie
<tos^it n*»i J>y law to hare the sole
III lhc«e limits; for the
J |u - .1 dc^iaration is laid in this,
> llk&l ibc dUctiOaut Inuleti without thetr ti-
,.l »K.
dl9 M^ III tbm i:^r.ini ; i
mmmi m thm cmp^ ti» sen
iocilieliinir*
ifiWIuBir. t>i
i«s, tlie tr
Aa bud : I
had to greaten this
e the prerogative of
, and
ili.i.
iiour nor prenkgativc
[irniiprty of the sub-
, nar the law of
»asi to jcp-eaten
^^ , . **» *i'<? detriine«t of the king;,
l^law, aiiid' the »ul»je€t; aji j hope to make
t Ml tilts CSk%e*
In mjr «*a^r m th« jmrtiailar questions in
luienre, i.TJiat ihe plain-
tion do allrice, That I hey
•ii^wfii aiiit oiftna^rdf and do manaefe
ftfiiaifndviif mcrcUndtzeto the Eastln-
mi, ini^ tbc inhabitants thi^re^ who at the
liav 9i ikt^ niakiut^ the letters patent, were
mi; ami etrr since* are not Christians; hut
1^40 W0t^ aod now are itilldeh, and enemies
lilbfClinitiiui faith.
Yft lliify ilu not allr^'e, nor can say that
lli^ ladiAiia arv in •^nnuly ^ith the ero^vn of
to
w mr i*a^r
iHbintl)!
Ui
f ST^Te TRIALS, 3^ Ctf ^rles tL 1 684.— Tie £ /. Compmiy v. Scwisf%
the limits of theif fp^ot, or tn ^inj pari oi' it.
vrhicli may he f er^ necesiary tor the g^9^
niCDl, and public traif*.* of the k\n^.
1< It inuy l»e, the Indians tti:iy insist up
some such company to be mstiuiied by th«
kin^» by sonic ti'i*oty oi' coroint^rcc.
Nyw hath the kih^*^ by this mcans^ not only
exrludfd \m anhjects tiom the tr«dp of thia
phicc; but he hath excluded hintiKdf of the
liberty of making or coo'ititutiu^ any other
cnmiMfuy fur trade or commerce, m ail, or any
of these places.
3« Perhaps the (*t)Teniment and gfood mn*
nai^enicnt of trade iti these places, mny in time
require more companies to m in^litut^d^ in alJ^
or some of these phi(-e« ; and the Company *i
i*ounsf I, except Mr, Attorney, are oowr arguing
the kin^ by liia prerogative out of liis prero-
gative :
That the king hiid prerogative enout^h M
make this glorious Comiiany the sola traders,
and maiia*j^ers of trade in these places, and to
exeluilc himself and his succcssorv^ and all the
rc4t of his subjects, froui tlits trade and tna-
nagem^nt :
3. And by this means constitute a sort of
republic for the management of trade in tliese
plnce^, borrowing perhaps from Ilamburgli
and other republican places, the nays and me-
thods of managing trade upon a common stock,
in fmternilies and compaoies ; and by this ex*
periracnt alter the consliiution of Eugland iu
the management of trade, by altering the »«'•
ture of our English properties in our goodf
vested and placed in ^raona, and placing onr
Crojierties in companies and fraternitiei ; and
y fixing the mystery of trade in companieiii
to the prejudice of single persons; and may
in time turn tn ill example, and endanger the
government in its other parts, as well as tbc
trade of England.
The main question in this case doth tun
upc»n the power of the kiog ;
If ttie king by hia royal power may appro-
priate this trade in these iofidcl places to thta
Company ?
First, That the king haib power to do tliia»
by the advice of his ^reat council, the parlia^
uiciit^ if! not doubted. Ho there is no defect or
want of power iu the king to do this by the
law (d' England ; the exceptions iti the ststute
of "S I Jac. cap. 3, do except i^ucb grants oat
of that Statute.
The question i* only a quest ton of the maa-'
ner of doing this by the king.
Secondly, Whether he may do it, witliotit
the advic*' of his 'treat council ui parliament f
As there h no de*i9tt«r want of power in tbe
kintr, so there is no defect ill the law of £1^
land.
Thirdly, But if there ^»e m necessity or m
conrcniency to the dniug of this lor the crown,
or for the goverumetit, for llie subject or for
trtidc?
Fourthly, It i^t not to beonppoiod but thtf
ibn l/irdM'and Commons in paHtMoeul, will
and ought to assent to such a gnnt lA ptrlia^
Ea^laiirf, or tliat they are alien eiieiiiiea
t TiNMgfi <* *bitants of thfiie
pfcoM art uilu ,e!» to the Chris-
tafeiiii, yet *t muy r>r, nod we hope there
^r W an uiij venial convfi'Shin to the Cbti^;-
laaiytlt ; aikil w« are tuoght by the church
li My fm it, and to use all manner of means
^ H iniV "^ ^ pa»«.
Wliy OMY tiot the^e plar^es, or some of them,
iiPsTtni^ ^
taoiaAdvtt .^ :■ ■ -^ '^'■'•'
A. T>i* I cxrhide a trade with
Mihr>^ iices, but with all per-
iasmilxa-L pUi<j».
1 dfi 11*4 r>l»»<»rvf». that an^ of the Comjjany's
Mnftrl t:. ' '/ \ '.•.■..■. ^ , have
laawd 1: 4 w»lh
Skflsdaoi m t uw uorl r, without
, InMifrosn ti Herein I take him to
'l»«fencL
< TWy say, thi» trade cannot he managed
i*rf •"•»rt
of all persona,
at', to tr-»tle. or
any other comiiaQy wiUiiii
S!«?nt as mach a» the pnvy-coimdl, or any j
other oftlie king's council, are oWig^t^rf to arf- i
tiRP it out of jmHiameDt ; nnd it ouifbt to be
00 pr*'S»rfnefl by thf* f^onstitution of England.
Au^ I t»ke tbis hf b* ooe t»f ih^ 4rH*ia
lUicni, ubiilf is u subject matt ri Bt tml proper
for the con^iHei-iittrm uml drUt>eralioti o4* a par-
kainertt, htid oii^Ht rwrt td pass by any gmni
wUlitHTl lb em,
T\Ttt tragic? of Kngland» tb« pri^pprty atid U*
Vrfy f>f I be fiMbj»*<*t» I he kin if 's tvv*<?nt»e by
toi>i4«^r, i)oumtu^c and tnistoirtfi, tbc ori-ro*
fEti^o of tut? km^^, iirt? utwler great restriction:*
Sy ibtn grmnt*
* Tbi* Ttotk ii too liTATy for tbt* pern of an at-
lomey^ or soUoitar, to put hiIo h bill i^ir thi»
g^ri^att )iea1» vinlioiit I be ilebti^rfttion of a psr-
bfttnent.
The king' cminot inituraUz« jin dien ; but
by tbe act of piirliiifnent, Ibe law ttolb intrust
Ihp kiotjby hfs Ittii^rs patent^ to make denizens
of 3ili4«i^, but not to iiatiir4b»;e rhrm*
It may h*f lo«> muc'b for tnc to (^fo tbe
feuNonot'tbi^, vvby the \ih^^ bath not powtr to
naturdb/« alieusji aft well as to «l€ii|zenize
fkcm*
I btniabry fake tbe vpssm to itrftcirpf? from
the inlt^rest of tbe subject, tbnt the rijjbl of
||.„ ...i,...,.i :.. ...w.., ,t,.^|,.jy conceniofl in b»lting^
^1 " same rigbt, bbpityaoft
ii ..^. ..:,^., ii siibjceLs in Entflaiiii, on«1
tbat tbi* ou^ht ni< to hie g^iftolefl to ahens,
not by tbc king- nniJei- bis greHl seal, wrtbout
tbc coniH*nt of tbe Lords and Commons, tbc
yojire»entiiti%«» of *he subjects in purliatnent.
Th«re may he biifb «t»te-pobry, (iomettuies
naturtili;!e na oVien, ana iliat i»erbaps it
innot ahviiys wait tbe meeiinjj of a porliii'
nent; yet bath tbe Utw |»lsn^eS tbis Irojrt in
he kin^, to be txercisicd by tbe kii*jr^ with tbe
uJvicp of ibe LunU iinil Commotio in parlin-
ncnt^ and nn c>&- - -
Tberiglit oi iisibman in bis free-
omof Iraik- \u j- - ^ . . ,, is concerne<l In tbis
|raol, afufcvcT^ Kni^bsbman n**t mlmitted to
rade by tlil- ji-mt. is i .rlurlni t^j'li:^ IVr^'dnm ;
nd Ibcr y ^uy
herEnM ,,ts.
If tbe kuiji hin\ Hitidij sr 0> aliens,
nd exi'luded all biai Ei rts (ri>iM
tnulin^ in ibcKc places, uv ir ti.t king^ hiMl
_ anttd only to bis ln«;b or Srotcli KiilijectJ,
^amitf ' * ■ :, sulyeclfj bud tbeae
►con : '
It tiir Kiu- tii:s tju [iT*^row^ti?e, tbc com-
any'i* counvd orcein ibiMcstset oU ibm mic^bl
bavi* b«en dniie^ and these (jfrautn Imd b«»;fi
al, iboag;h exclusife of nil hh Englisb
4eots,
It is enougfb, I bumbly conceive, tbe kin^
bftfb the preroi^tite of granting and consti-
tuting such conipanic-i, and niakifii; sucb
"aQtsiQ pnrliftinent ; and tbe law allows no
Itnore iu cisen of this nature, whirl i concern
llie ri^bt of every aobjec^r in England, aiid
Ai^etore uofrbt not to Ite takea from bun, boi
Pjf ^EeoBsent in pirliameitt
1> i}( inaUi
n m the
'roin tbe I
1 think it maybe '»''*♦'* »*•-
bis gfi-cal waK witbn
and Commons i" "
pany for the
ibe^part^t oi ai ^
But be cannot, as I Unw\
any grant under brs great seal
bis subjects of tbeir rijrbt utidbl^
in anv place uprm lb»' *eiw or bevoriH tbe i
Rolls I, Hep. f*d- -t. Tiietftx '
cn«e ; tbekin^^ uiay j^raor a c
orderinif of trade; tbii* i^for Ibe rvneiii
subject, 2 Ed. 5, Brition'acnse.
Tlie y^tM»d m^mnoff menl of trade ii» for th
Inrliellt of ibe !»td»jecL
I sbnM endrarour to mrsTif ..n ih,y{ the sub-
jects id* En ;;! and bad a r _ e iu tbeie
parts, bit'off the makins^ * i -, '«tt, or tbe
const! lilt I ui; any rompaoy by the crown in tbe
Ea;<t- Indies* and witbout any licence frointbe^
crown; u«d b) consequeDce this j^raoti
priating ibis trade to tins company, ftn
flodio*?' tbe rest of tbe kiOi^'K sw>
their rij»bt and liberty of trade tl
ilUH,mt mnrjopoly in trade, condemn
t!ie common It Cv and statute law ^i
3nd ihe intidcti**m of the j^ -' •
plat^ea, is* no l«ir nor impi
tji>fl conuui^rce of 1"*'
pFaces, witbout leatr
nomoretbauiuCbn .
That ibe prero^jatue ot tbc crown, to gnat
and issue oot "tits of Ne Ks;eaf R. -fiifi.
a^iri^t tbia or that subject, in no m^
Ibis power to moke such a infant as .
excltide bis subjects frotn^ tmdttig m mU4^
countyieK.
Tbe Ne Exeat Kegiinm is a writ ibut fiiif
be granted by tbe keejier of Ibe- |pretl aeil
without »Dy express i iimmd trorti
tbekiog, n[M>n soni- =1 tbeuail)'
may be requin'd to mv*- euuuMn not io leaff
tbe kingdom, tilt be answers jiuch « cult, or
tbe like.
Tbis writ i!* never jf ranted w it bout
special reason or cau«e in a particular
Ihe subject complained of may appear in Vh%\
Cv^r\\ and answering" the ciiu^, may diacb
tbe writ.
8urh a sfrant under tbe freat seal, f«r i
of tbe king^'i^ subjects to gt> nbn>ad, and for tW
rest to slay at home, I coT>ceive i%r>id4 not t
>«oot1 in law, No pai*ity of n,.
kii»4r niftv, by bis writ of Ne
stay asulyect from going oot nc ui^ Mn_
that tbcrclbre tbe king;^ may by bistT"*"' ^™
bim to trade oot of tbe kiu^tfom. ^le
and do trade by tbeir factors ami
dents, and do ivti sttr out of the kin|r\U
personal atteudutjce m their traJe
remote is not necessary.
Tbe «i objects of Eusrland tradlner »« i"*^
cbandite, have, and always bad anjjbilotra* _
npon tfie seas, and beyond tbe »cae, wHboil
licence from tbc crown.
That they bod siicb liberty i i(b *»
Christian cQuatrieftt I do oti i ^W
loTttwt^
■■Ajf ff t^ oooi|ii«y^» coutiA^U but Mr, Altor-
Vlfy; be liAlb yi^yrd * r *» _^ ihe othtr
V crao^el batr ikmty), a in) h^t others
p kftf^ i4iiiitu*tl ; iiatJ 111 Koii. i^.,4.i^ ni hi.% ar-
piiif!lit, b(^ ifty as ( ootierive, iiic<>Q>tUUuf wiili
r^e to oil men as llie «ir,
Crnliii'«« <lr Mj«ri li*»**ro, * Mure <H Uttora
*Mt»" ■ -Miniiiia,*
rup. 3^ par. 19.
I ^iiit '*ccu pa verity
II j iv. r inL'imt'iii
'c oer teri*um tnlU
(« qui ct mimi$ esse
is omtuum per-
"^ea^Laws^ in liis
\, and earls ol'
:1mm, lunl mtininlif
tai}<}, ami ilje iMk'^i^
in the privilesft'S due
r itdmiralty, and tLe
^.u»l ihikt (Key would vin-
II all mri ot ciicroacluu;:r
tiJQSiir)u()^ ; uui iibove all, the CHm5fn;niov'
«Cdicvsu (mi the vUtef point of ilie oirice)
!yin coistiiou tW all
Bj W >|..«. .> ^^ . V i- a commuQity for all
1»|il mIyrU Ui tntiJr uu the tea«, and not ta
^ i|yfi»priiil<>il i4> « kw,
finOOB^ cap. 33. Oc Puvelia*, be distin-
jiBihri o/ thinir> co'pareal and not corpun.*«*l»
l^l^tti^g^ ^>n And tliiof^ parrjculiirt
• Ckiw> i ')icunie la meei^ t^t le ^yr,
' If k ry ralUc Ji; U tueer, drott siconie et de
' Mhtv ^n IIm, (*f tm uiiier, «t en Ci^muiaui^jj
hit
Ti tiath a soverei^ty ki tlic
'V ju tlif liritm seas is
^'>ver*:i«jlity of llie
I < utnuscjuc Rci •
I' 0, UL. 4. K.in];;
urn rerun* , In*
uium circuiwju-
<jnu: infm earn
iix DuutiDUn/ Bar-
'i \idcmujt dejtire
I liorQinia srmH
-lOQl!^,
fW^ «l4l|rr U»4iiK&, d»>c» fttLoQ WTutrks*
^Ma uid greal stuqp<}OUi» Ui Ud^^og to tUe
MI] STATE TRIALS, 5C CKAnLes 11. \6u^7he E^.Compans^ff.Sand^. [SOS
And ihnt the king Imth bis M custoais, and
these royalties of uTbck>> »nd grvM C\hh, by liia
cons^riaucv uf the sea«s ; sir Henry Conita*
hlc^ ^'» ri, foL lOa, h. 5, Hi. 2, para. 1L.
Tli' 3fi tunijage and pouuda^ei Pro
DlJ :- - :.iiU.
Butlbei^in^ bath not any prorof^aiiire that 1
nieet wiib» tn exftude \Ue %,n\ijvri tmui the
lirneBt of hiH ri^'ht af coiumuuity ialbc iMHiSa
as fishing' :md tradit^
As the king hath liis Kfiverrigrnty upon the
seaa, and his itnbjects owe lain lie;(i auce theni;
so have they their rights ami prupcrties in
and 13 p<^ the sea&p and llu^y are nut u^ b&
inradrd.
And the king^ hatb the eare and rnasarvanc^
upon the sfas« and fi»r \m care» guard and
ron«scrviincy of his* suliiei^ts thrir «hipH and
gcKKis n]>on the sras, he bath hk tunnagc^
pouiidiige and cUKiotias.
Rolls Abritl^-menli Tit Prerogative. TIk
subhidii^ of tunnuj^e and poundage ari^ jB^mniciil
to tiiL* kinjf for the safe-ijuaid id thtJ mus.
Hum, I Ed. ^ cap. 13. recites, that H. 7,
and H, 8f aud other Lin|;iit bad gi anted w
them by tlie Commons iu padiaitieut tor tli«
defence of the realm, for thekee|iMi4r ^uid safe*
irnsml of the eeas, for the iuh nfmer-
«: hand! see safdy to come into i and tn
pu!is out of the tsarne, a ttnl»siii> ui ^i manner
of :foad^ and intrcbandizes coming' in, and
goin^ out of the rcaUii,
And if any one be idlerwitrds robltod by
pirates, or [osc bis goods by mistuituiMf, \m
shall fchip as many more without puyin^
custom.
8tat. 1 Mary, cap. ia» And Elk. 19. Uie
same renewed.
Stat. 45 Ed. 3, cap. 4. And all rates and
irapositioDS upon ships, trade and ti albc upoa
the seas, and beyond tlie seas^ are laid h^< ib«
kingf in parliament, and cannot k>c laid by the
kingatone, by any prerotjativ e out of p jHiaaienU
3 loht.ful. 181. *- Commercium jinv greuUniD
* commiuic e^e debet, ct uon muuopoliura et
* priv'atum p^uculoruni cjuccsium couvcnuu-
' dum« ini^uatn alios pt^nuUere, £diot» iiihibc«e
* n^ercaturam.
Dyer, fob *^m, I3 Elis. Tliat a Hub>e|
of Eti;^'l'Uid, [>eiui^ a merohaut, tuay depart ool
of the realm wirbuut the tpieen\ ti^rence, to
live theiTf tboug^h not niercbatidize ; and such
£foiQ£; out of thu realm is n^» continipt to tb#
cjuecn, before a Ne cxmt lU^uMtu^m e][prMi|
probtliiliou or proclauiiitioii ii^^tie.
Suit, o U. 2» eiip. U^ doth iilfirtn tbU by th<
except! un in tbnt itatoU*.
iHxrJbl. Ifjjniid 290 agrees uitb Nat Be
»iul »jy^ tiiriUer^ that nu luercbani pays at |h«
eommon law any cutLtont lor any Wares otf
naerchandize wbatsoeter, except three, njj.
Hooj, woal-felU, and leather, exprt*^ tor all
mercbaotSf and couOrm^d by ^ta£. 5 R. S, ci^
1 and 2.
RoUh 1. Rep, fob ♦. Taylors of I |)<^wiGb
cn^c, li Jac. Haoeo liigis ; on trade ui«9*
chaoic ur tQercbasdixiDg gugbt to he biiid«r«4
SOS] STATE TRIALS, 36 Charlbb II. l684.*-7Xe Great Cau of F^nsfOki: [SOI
no aatbority, nor the book antbentic, andtt
best bat some saying of' my lord Coke, ia a
matter not then in judgment before the court,
and that perhaps mistaken by the jirothonolaiy.
I oppose to the probability of this aaybf ,
the report of the Taylors of Ipswich case, m
Rolls Rep. fol. 4. 19 Jac. The lord Coke was
then chief-justice of the King's-bench, and
says in the resolution in that case, that M
trade mechanic or merchantable can be hin-
dered by the kins's patent, not in any place,
without an act ot parliament; a charter ta
hinder trade at sea is Toid.
How can this stand with what is pnfaliahed
in Brownlbw, thiit my lord C-oke should say if
the common -pleas, before this time, thataa
Englisih 8ubjei!t cannot trade with infideli,
\s ithoiit licence from the king ; and that ht
had seen a licence in the time of £dw. 3, to thai
purpose?
1 be reason given for that saying, is as weak,
because they are common enemies to ibe
chriKtian fuith.
They may be enemies to the christian rdi-
gifui, and not enemies to the crown of Eog*
land, or to the trade of England.
The law denies trade and commerce only
wirli enemies to the crown, not with eneoiin
to the Christ ian religion.
It is sufficiently obserred already, bytbt
counsL-l that have argue<l on this side, thattbera
are treaties of trade and commerce between
the crown of England, and these plaoea of in-
fidels, and that there are leagues and rmbiwigi
between them. 4 Instt. 155. allows kagoci
of commerce, and trade, and peace with in-
fidels.
And what may be the consequence, to de-
clare that to ho law, that they are incsmaUe of
the benefit of the law of Euglaml, allowed to
other aliens, and that they are not to be pro-
tected from fu^rsonal injuries by our law T
12 H. 8. 4. A Paipm beaten in England caa*
not sue, quia perpttuui intmicus.
And to put them iu the same condition widi
outlawed and excommunicated |iersons, bow
doth this consist with the common justice of
nations, or with the policy of trade in aa
island ?
Obj. By Mr. Solicitor, 5 Inst. fol. 34. A
Jewess hoVn in EiigUmd, marrying a converted
Jew, nntdowable.
Mr. Solicitor hath cited many cases and ie*
cords out of Mr. Pry one's collections, and froa
the rolls thenmch es, how the Jews were treated
in £nglan<l in trade ; what restrainta and tam
were :aid upon tbi>m hy the crown.
I do not take it that any of these records
reach the rtrason of rrsti-aint of trade, imp
upon En:>[-li»h snhjccts by this grant.
There s n«» restraint but that English
jects might traile with Jews in their own i
tries.
That Jews were used thus in England, ii
no argument that the East- India CfHnpHUr
may use English subjects like Jews abrOotf •
other countries.
by the knig*s patent m any sort, but by act of
parliament.
9 H. 3, cap. 30. A charter to hinder trade
ot sea is void ; a charter that only 100 persons
shall trade at sea is void, in Hself ; and ne was
chief justice at this time. S Inst. 57. The
patent to Greenland was allowml, because the
trade was found at the peril of the party's life
who first discovered it.
Taylors of Ipswicb case, where there is no
new invention, the king by his charter cannot
hinder trade.
The patent to the college of physicians, thnt
no pernn shall practise physic without their
licence, would have been void, had it not been
confirmed hy act of parliament ; yet this con-
cerned not all the siihjccts of England : and is a
my^ry, and the professors thereof fit to be
approved by persons of skill in it.
it may be admitted., that the king for spe-
cial causes may prohibit this or that subject,
perhaps, to trade in some certain places.
As the king may inhibit a subject's going
beyond seas ; and if a person ^oes beyond the
seas atler such an inhibition, it is a crime in the
subject, for which he is punishalde.
But it is hard to infer from such particular
inhibition of particular persons, to trade in par-
ticular places or countries, or to inliibit par
licular persons from going beyonti the seas,
tfi infer universally, that the king may inhibit
all his subjects to' ^o beyond the seas, or that
ho m^y inhibit all his* subjects except some
few to tnule.
There is a great difference between an in-
hibition from tliL- c:'fiwn to this or that pifi-son
to go beyond the ^eas, and an inhibition for all
persons to trade, except sucli a company.
This grant impoits a rr^-ti'aint upon trade,
ond ufion the common liberty of the subjects
for thtt benefit ur' some fow of the suhjectK,
without any benefit to the crown, or security
to the kingdom, as in the case of Ne exeat
Jt^enum.
The Company may license aliens only, and
exclude subjcts. No trust is placed 'in the
company, which the law places iu the crown.
For the allay that is oH'ered to this excision
of trading for Englishmen, and English mer-
chants in these places ;
Obj. That tliey are excludetl only from
trading in the Ea!;t-lndies uiih infidels, and
the inhabiiaats there, mIio are enemies to
the christian fuith and religion.
And that it is for the common safety of the
ohriatian religion, that this is done to avoid the
danger of corrupting and perverting christians
to infidelisin.
I do not meil with any authority for tliis
power given to the kiiiir.
But that English subjects have the same
freedom of trade with lufidels as they have
with ehristians in places bevond the seas ; so
tfaej be not in enmity with the crown of Eng-
Michelbome'a caso, Brownlow 2d Rep. 996.
Thateuehath boon obssrv sd ilready to have
a05J STTATE TRIALS, 36 Chaei.ss IL i684.— ?%# E. h Cmpmy v. Stmi^$. [509
9t JFmt% firtt epbtlr
duftOf mttiianil* lh« ''(^ i^'-
l«« BQiiWiih atiother U
ktif^alef it to their v^uld
Ml mber rm^ire wti^jv^,-, "» m..^.^ ..liMU-rTi of
Mr ^#11 loju^j^t K«tH'e«nthe brvthiXMi, than
lifpilo taw onr «'«'> un.^th- r rinii that iH^fore
wtrikriri; t> "f to tlie
Oa0mtmf*^ i^ji. - : lt with in-
lf««r'tR«p^ ttti^ 07i, uq/675, Are authoritiiit
(Wtaifwai Boti coftimt-rce wiili Pcit^an^i, which
wnHflm^fp^ >' ' rce uith rnfttlcls.
Loi^ C<illp f > I t<??cts out ofih^ huty
vriciajits; «i y| ihe buoli* of Jo&btui,
Ifil b^ tnir , iiHTf» iras fiich frefttom of trade
1^ t^ rvinifiuti liiiv tijr nil Krii^lUh Mu}>jfclr:
•u IpfkItU and rliristiaas in all t^Aiu of
IWwvrJil, ttud thm viithoul Ikence frtmi the
!• rfMsmifl I rn of itiide to a Cotn-
E«ifii"i* I -1 ^, exdadjiig- nil oiher*
f§ stihftHTtK fnHii their andeut hberty
dom rif trails, I take to tj<; a monopol v*
•rifMii»« viihm the ik'scitption and reunion of
4c idiBUtpg^of morio|K)lies, so Ur^rly argued
bj Hf . ralleKf«*n, that I »lmll ool take up the
t]«t«fildi court u» i^yemug y^UhX he hath
mA, md 1 onnoi uiM to it.
?i«i1ll«r itjll I tro ►l.l<5 the court with men-
iw^liip authi>nUi^ lie biith dted fur that
oniio; b«t reler myHcKtoihes&aieauUiority
monopolisti, projwtors and propnutidei^, drrth
riiithcjeuily illit^'trHttf thifi, with rcfl' ^ itf
\%hat !^lr/Folle.\fen haih said in tl ii^
^vitboul re^feution of them lo the i 'mu t.
The Btatule of Mayua CJiarift declarev the U-
berty and fretfitoiu ttierchunt!! have to buy aud
sell without restnunt^ hy the ohl and nghU'iil^
custouis^ cicept iti lime of war.
3 lii!»t. cap, '29 Hu<l 30, Htat. 9 H,3, 30.
Niii publici pru/nbrntur, sailh my lord Coke|
in intended a pn)hibiti«m by act ofporhament.
YeWerlon^ 10 Juc m uf the B^iiue opinion
with lord Coke in his book about imposittiuns
ujMHi trade; as i have it from a ^^eutlemau in
our protessibn. Vide his manusinpts.
91 Jac. cap. 3, dt^lares all moiidpolie!^ to be
againi^ common law.
Coke n . Case of Monopolies, 84 Moof *■
Rpp. crS, nay, Darcv*s jrrani ^>r the *«>Ie irei*
|>ortiU(f of cant;! from bt^yinul the Re^m^ and sell-
Hi^ fUeiii lor twenty -one years, 44 Ehx. pro*
bihiieil and jurLre<) a void j^i ant,
StaL 2 E. 3, cnp. 9y c^tuhrnis JlaijnaChtr-
ta, fur iQfoing' s^nd coiui^ig with ttierchHudiz#
lu and trom England, accordingr to Magnft
Chiirta.
9 E, 3, cap. 1» damtis all charters io the con-
trary, as iMetrtil and oppressive to the people,
4 E. S.eap '2, confiruis also [llu||riia Charta.
^5 E. 3, cup, 2, doth the same, and makes let^
ters pat^^iit to the ct>»itmry void.
II R. % iitp. ?, 1^ H/?, 6, tor free piasngfe.
Sic. such letters pate»it reairaininf^ trade hate
been pursued in jitirlintueut, witlt hut; and cry,
in b!I |»arhHnif nts and a^es
Thmi;rant is made to a C<>mpany for
Yil I taike tt, under correction, that It is 6t I i^ood i^ovemnu^ni, and tor the oideriu;^ of uade.
•iWffry
..1
Ki.lp
n1
ftTz
if tlik nMent be not
'\ anpropri-
;t *ha he-long'
lo all Englishmen, tbuu|2;h a
n tJii^cro^n sMiH ui'Ci'Ksary fiorhfir
ihtk irmle \ yet every En^it*(h*uan
e of ^ucli licence, and w,ih imitlet)
[^•■illiopaiMf Irotn llie crown, and had a right
tit it out of the kitiiLr'.}
TH^csK^ and hnth (ductni
•♦e of it in thi^* Com-
n hath by {\m |>atent
I a trade To thm Coin-
II to all his subjects ;
ipioiv the si»le licens-
i^ti;;; all the
out i)v U-
[rin thesi' finrlsi ;
i:ut and gnmt il-
J*y*
of E
idlry tlu*t o«oT
Kytvo lht« riiui
litill told;
makf^ iht»re«tr^tnt In trade, which wa«i
lo *U »*itl) ♦' ^ *s now [»e-
QlBrt* tlia (%4i<iu umnopoli^e
kttak'. ' ■ ! , ." .
•Si *■• %>-i>" I ,irio [iney
X} l«nl Coke'a diefcnpi^oaof cAOfiopo)ie« and
and no monoiKjIy, and it is within the proviso
of the statute 2 IJhc.
A niw. Allo\% 6i\ m Darcy *!« case by the ar(pi-
ments for that grant, and if it be ik>i for public
g^Of»d, the tfriint is illegal
If this itraiit he aeuber t^>d for the kiog-^
nor tor the suhject, nor tor the tmde of En^*
laud, it cannot be auid to be for tlie pubSc
It cannot^ be g'ood for the kin^f, for it restraint
him in his pr* ro^'ative, na yrui ^ould hate it
the kinjj hail power to hcense every subjet^f ;
by tbiit *;rant he hath excUided himsetf of alt
power id liceoiiing. lie can licenie no sub-
ject to trailf m ihrse parts.
The kioi^ suflers in his cuitums and in hit
oavi|rj»iion>
Tilt subject b excluded from trading in
these places, without the lichee of this Coni«
[laiiy.
'I rude itself i« restraine*!, for it ifi reduced
and appropnated to a Company, and to few
jiersouii, which wag couiinou to all the king's
uubjpcts.
2 lust. foL 57* Lord Coke's reason ajjainft
It, for all the subject** are concerned in irade,
thertfone all augitt to consent to it in parha-
meut.
Thouifh they are a Company, they are noi
constituted by this gtiDt^ lo tegutaie and cai«
507] STATE TRIALS 36 CharlbsIL i684.-7%« GrM< CaieofMomopelieM: [SOS
uMp tnde for Eug^Uod, but for themselres and
tbeir Company, r
The height«uing, the lowering ofcomniodi-
tiei, the rauting, the lessening the rates of all
the commodities of these places, the in^rrossing
of all the trade of these places, is in their power
and in their pleasure.
There are no rules or qualifications in this
grant, mjuining to admit numbers into thiai
Company, or directing or requiring tlioir li-
cences lor this trade. They hare the trade in
themselves, without any check or controul from
his majesty or the government ; they are in •
dependant from the government by tliis grant,
they are without ap|>eal.
Obj. That they arc a company, and that this
llprant to them is within the exception of the
Stat. 21 Jac. cap. 3.
Antw. 1. Because that exception doth not
reach to letters patent made to corporatioos,
after the making of that act.
No words of saving to uny corporation, that
■houid be aflerwards erected or ma.- ted.
2. This proviso doth not niaKe them better
than they were before the making of the act,
only leaves them as they were before, and as it
found them.
If they were legal before, they continue so ;
if illegal, they are so notwithstanding this act.
Obj. That many grants of this nature have
been made to Heveralcompanies ; to the Turkey
Company, Muscovy and Uamborough Com-
panies.
Ant. They do not trade in joint-stock, and
monopolize, as this Company doth ; they do
not exclude persons fnun tluir company, as
tliis doth. Mr. roliexfen Imtli diflercnced
them at large.
That there lia%e lieen many monopoly grants
in all ages from the crown, appears by the sta-
tute of Mai>;na Charta, by other statutes made
in Ed. 3nVs time, H. 2, l(. 7, and king Jameses
time ; ami by the juilgmcnts given on mono-
poly patents in all ao-es.
in the (/asc of Monopolies. In the Taylor
of Ipswich's case
Peachy 's case, 5 Ed. 3, severely punished
fiir procuring a licence under the great seal,
that lie only should sell sweet wines in Lon-
don, ike.
Inst. 3. fol. 181. Darcy and Allen's, Mar.
Rep. 44 Eliz. Oppression is older than the
law made to punish it ; Monopolies are as old
as the laws made to punish them ; it is no ar-
gument to justify injuries by their ages.
Sir Arthur Ingram's Patent, 17 (.'ar. 2, for
the Canary company, (granting tlieni the sole
trade there. There are trl(»ri(uis r(^cit:)ls in that
patent, of advantage to the king's subjects, and
for the regulation of trade ; making the Com-
pany a liody politic, that they should have the
sole' trade to those islands, excluding all others
under pains and forfeitures, with a non vbslunte
to the statute against monopolii^s ; judgment
was given against this patent, Mich. UO Car. 2.
11 Jtep. fol. 64. Taylors of Ipswich case.
Compare this case with the com^y of tay-
lo.^ case ; for the good of trade and companji
and the orders and by-laws fair and plausibM,
yet damnetl, because a restraint on trade.
The company had the profit of the refomia-
tion. No other difierence between the cases,
than that this is a mighty, that a petly com-
pany.
14 Car. 2, cap. 24. That statilte prorides,
that persons by having iitocks in this company,
shall not be adjudged traders within the statutes
against bankrupts, which is ca'led by Mr.
Solicitor the judgment of the parliament for this
grant.
bays Mr. Solicitor, ' Sut. 14. Car. 2, cap.
24. takes notice of this Company, and that it is
an advantage to the nation and trado of it.
Stat. 29, Car. 2, 1. takes notice of this cou-
pany, and taxes every capital stock in the
Company at 20s. for every 100/. ca^tal stock
in the Company.
Arts. This |M>U-act taxes ^1 guilds and fra-
ternities, bodies politic and corporate; this
doth not make them legal corporations, guiUi
or fraternities.
The judgment the parliament had of this
grant doth better spiiear upon the journab of
tlie houses of parliament, of the coniplainti
made to the pailiament, that this grant was a
grievance.
it is no new thing to mention prooeedugs
upon journals of parliament : and the judges
take notice of them. Hob. Rep. and RoDs.
And in a cause of tliis consequence it may be
proper to adjourn it to parliament, when it
may receive the judgment of his majesty in
parliament.
This will be a safe establishment of the law
in this great case, which concerns the king'a
prerogative, the right of the subject, aud of the
whole kingdom in the trade of the nation.
It will meet there with a judgment that will
certainly establish it, if it be for the interest of
the king and kingdom ; but if for the enlargiug
of this gniat Company, it will meet with the
eonunuu fate of prt»jei:ting patents against the
intert'St of the king and subject.
It is a mighty argument for the reputatioa
this patent hail with the parliament, and tha
opinion they had of it, by taxing their capitsi
slock at 2U«. per cent.
So they do reputed esquires, at bL by tha
head.
Sidiritors, attorneys, and oppressive usnrcrsi
have the like est<*en/with this act of parliament
Stat. 3 Jac. cap. 6. This statute is but de-
claratory of the common law, and made to
avoid (|iie.aions and suits in law ; which raiglit
Ik' otrcasjoned i»y chaiiers of impropriatiiig UM
trade of Spain and Portugal, and then m
making for the tnule of France.
If the mischirfs i-ecited in that statate, and
the evils hap{>ening to England, and the kiqg^
sul)j(*cts be true, without all hesitation,
ThoKc charters mentioned in that staliils^
and condemned by that statute, were not oniff
grievous, but illegal, and monopolies ;
It appropriating the trade of thm dnti^
S09] 9TATC TRIALS^ 36 Chariis IT. l684.-»11f E. /. Comptuhf v. &mJfy$. [510
■OH to few merchants, mud excluding all other of it, <tiiadrate with these monopolies^ and their
kii majesty's sahjects from the trade ; descriptions in our law-books and cases ;
Debarring the king's sutgects in England With my lord Coke*s description of a moBO-
InNH that free and common traffic, which his
sabiects in Ireland and Scotland had ;
To the ntanifesft impoTerishing of mssters,
ownen of ships, mariners, fishermen, clothiers,
iadccis, spinsters, and many thousands of
handienfts-roen ;
_ The decrease of his msjesty's customs, sob-
■fies, and other inipnKitions ;
The ruin and decay of navigation ;
The abating of the prices of our wool, cloth,
cWDy and such like commodities ;
The enhancing of all French and Spanish
eMBmoditieB ; that all owners and mariners,
mak £rers others, shall be cut ofl* from the nr-
^ means of maintenance, and preserving
And all French and Spanish commodities
AaUbe in a few hands;
To the hurt and preiudice of all the subjects ;
AMcfine enacts, it shall be lawful for all his
■qerty's suhjects in En^and and Wales, to
hm me liberty to trade into, and from S[Mun,
Tnaot and Portugal, in such sort as was ac-
ed at any time in his majesty's time.
4 Jac. cap. 9. Made to confirm the
r to the emnpany of Exeter Merchants,
I aognlar reasons recited in the act of par-
it, declaring the stat. SO Jac. cap. 6.
I Mt fanpeach that charter being for pub-
flU. 45 Ed. 3. cap. 4
iU le cbannd upon wo
That no imposition
vitbout
mot
t of necessity, for it was the common
J jet it was thought fit by the parliament
it thai tune, to declare the law by an act of
iU le cbarsed npon wool in no sort, withe
Ihi—rtflftbe parliament : this statute was i
■ale out of necessity, for it was the comm
H. 4, cap. 16, 17. Against letters
e to ingross trades, &c.
It was the monopoly, and ingrossing
I by illegal letters patent.
When iHegal things turn to a grievance, it is
«hI Id auppress thein by acts of parliament,
wi Ml to leave their judgment to the ordinary i
poly, in bis 3d Inst. cap. monopolies.
If Mr. Sandys be pictured in Mr. Attorney's
argument) I ta*ke it the East- India charter ia
pictured in this statute.
The act of tunnage and poundage, 12 Car.
9. says, The commons in parliament reposing
trust and confidence in your majesty, in and
for the safe-guard of the seas, against all per-
sons intending, or that shall intend the dis-
turbance of your commons, in the intercourse
of trade, and the invading of this your realm,
give and grant for every tun of wine of the
growth of France, that shall come into the port
of London, 1^ your natural- bom sul>ject8, 4/.
lOf . by strangers and aliens, 6/.
The Kke notice taken of poundage to be paid
by suhjects and aliens.
Fol. 67. Kates in wares, silks, imported !■
ships English- built, directly from the &st-
Indies, the pound weight containing sixteen
ounces ; subsidy duty 155.
Of the manufacture of Italy, imported from
thence in English- built ships, the pound weight
containing sixteen ounces; duty 1/. 13«. 4d,
This act distinguishes between sulnects and
alien importers, between English and foreign
ships, not between the East-India-Com-
pany only and aliens : shall this law made for
England, be now appropriated to this Company,
and the rest of England excluded by this grant,
against this statute ?
Til is law js made for all the king's subjects
and their English-built ships.
The consideration of this subsidy moves
from all the subjects, the gi*ant is by all,
and the benefit ought to be for all the subjecta
of England.
The law is the same as to foreign impor-
tation from tlie Indies, as to importation
from Italy, to which this Company doth not
pretend.
The act for encouraging and increasing of
shipping for navigation, 12 Car. 2. the best
law that ever was made for England in that
of justice without declaration first ha(l parliament, except the laws for the prero-
kyaifiamentu
8tal9lJac
p. 3. This statute takes no
tBBgthcnigh the kmg\ disposition, judgment
nd declaration was, that all monopolirs wero
gative :
The proviso in it follows: Provided that
this act, nur any thing therein contained, ex-
tend not, or be meant to restrain the importing
law ; and that no suitors should move of any Enst- India couinio(iitiL>s, laden in Eng-
k grants yet upon misinformations and i lish-hnilt-ships : aiul \vhGr(K)f the master and
pretences of public pood, many such ■ three- fourths of the mariners at It^ast are Eng-
have been unduly obtained, and unlaw- ■ lisb, from the place or places of loading them,
in any part of the sr.is to the Southward or
Eastward of Cabo Pona SfHTanza, although
the said parts l>e not the places of their growth.
Til is law made for the increase of English
shififiiug and navigation, doth tliis Company
Epul in execution, to the great grievance
■eonveniunce of the subject, contrary to
lb laws of the realm.
j^Fw the avoiding whereof, that statute is
^Mea|{ainst all grants to any person or jier-
1^ bodies p«ilitic or corporate, of any mono-
pif; and declares the san^e illegal.
^VlbfUtote doth quadrate with the dcscrip-
■iifanienopoly.
Jkdrtk llie East- India Company ^ charter
■wilt ftkd» and parts, and in the exerdie
invade ; and appropriate this shipping and
vigation to themselves, by excluding all other
English subjects.
Is this for incrra<:p or decrease of English
shipning and navigntion, to confine it to fefr
hands, oxcludiug many *
b\ I J STATE TRIALS, 3d Charies H, 1684.— T»e Crmt Can ofM§n9potkii
There in neither cotnmoii nor statute Uw caq | Hifl distinction for mercHtote to tride) wj
ttoUl iliis Coin^>mnv. out coming to the simple: &ti4 ili«vi;ifi be
1 ho^M.* ib« judj^meot of tliis ct>urt will bind tmj^uifibe^ Wt^te^n (U4;rcltjit)i» And tr^den,
tliein ; ^nd Uiat tius act of pAiliamcDt ^ill I are oblig^ed to cotne to Ute stajHe.
jitvvail against tliis Comiiany.
The |jn»% is^t is, Ibr a|) Eni^IisliiDen to carry
In all £it^li.<»h«U<iih shi|Mi a:iy Eaj^t^Liiiia com*
minlitics tiroii^lit tnmi infidels.
The churier sayTi^ Ihn CotiipaDy^ and the
ships and Uu'ir mtu tihnll only carry. Which
iliull jtrevailf the set of fiarliauiciit t»r tlie
(barter? Th<»fe laj«t nitiitioiipil acts of part ia*
BCQtdi^tJUi^^aish (^tw^n 6iibjet.-t?innd tilieu itii-
artel's, tKJiut^n ED^j^lisih and fr'ordqn ship* ;
Not bt^UvK'nthe East- India Coinpany oiilvi
mi alit'us : Shall lUtse laws made iov Eii|;land,
* Jiow a ppni printed lo this C-onipunv T
Shall they have the bent;tit ot it f Can tbe
fcing'^s j^rHnt take from \m siibji«cU the advan-
tnjreH ^iven by nets of pfkHianienl, and appro-
priate to Konie what is ^rranted to all ?
1 crave leuvc to oliserve some thin^, by way
of antiwer to ]>Ir. Attorney 'ft positions and in
ferciicfs in his arsfomcnt yesttnlay.
Uedistio^iiisthcs het»een inland ami foreign
adt% he did allow the subject the beoetlt ol a
K)Rie trjde «i it bout rotraiot.
That the hti^haudnuin mi^ht plough. I
That aite Engii-^hman miunt pnvately sdl tn
ijotber by tbe common law, withour hcence
lirorn iJie cruwn.
\ et one sidiject could not buVi sell, or Unde
rith aiiotbf t pubhcly in an open tair or mar-
ket, wuhout hc!t*nce froin the crown, and thih
br the prt^^ervfiiion ot tbe pence, to prevc&t
Dublie aj^siniibhes and meetings : and that no
sir or m:irkrt could be kept, but by Uccuce
|om the crown.
J think there are fairs, markets, and corpo-
atioiis in Enj^land by prescription, and their
eginning is not known, and such are allowed
by law.
And pre<fcriplions are compared to the bead
fof Nde, which rould never be discovered,
Auil tliut iiuch ancic&t prescriptions arc as
ncjent as the grants of kmgs or inhabitants io
tlte world.
And lor foreign trade ; he laid it down for a
[ positiim, tbiU no subject could trade abroad
vilhont the king's U^euee io any part of the
hri^ian world.
I do not find any authority for this, practice
I against it.
The rc^t of the counsi?! that argued for the
apany did not insist upon it ', nay, they did
Lieem tu' admit r trade lor English merchants
p-Hiih ftlieu christians, wiiboutlbe king's licence.
Thts is against the authority of E. N. Br.
^85. Uver 165» 'i96. agninsi lord Coke's opinion,
Holls hep, Taylors of Ipswich, 8ut. 9. H. 5-
Chap. ao. Magna Charta, ft £. 3. cap. d. 18
f JE. 3. cap. 3. 25 £. 3. cap> *2^ 3B £. 3. cap. S.
. B. «. cap. ^. II H, 7. cap. 16.
8tat. ^6 H. 8. cap. 10# llaatall 566. which
llgives li^e king tor a limited Uiue poiier to li-
cense trade and traders \a some oieasure, m
Bome parts, iu sowe c<»aimotUtittS* Vide the
StMluie. 3
What warrant hnth he (or this dittifiCliafli
The prayer of the commons to tht; king in
liamefit: the peiitious of mei^hauts |o tl
king* the king^s restraint of Uierchaiits
their trade, notwitliOunding acts of parli
the continuiug of the stafile DotwiihaiatMl* ^
acts ot parliament aeemiog to liie oooinrjr;
give him a handle for this ai^giiRUItt,
1 H. 5, 7* The prayer of the onmoiou ta
tbe king, to send foreign merchants out of ^
kingdom : the kiug*s answer, ' Roy advifcis.'
2 H. 5. cap. .5.
Those were bills in padiaTDent presented t»
the king for tlie royal assent ; so were mtty
of the rolls of those agies, presented 10 ibr
kin^ for tb^ir royal ascent, especially in ^hi:^p
which any way concerned tbe king in hisprt'
roffattfe.
The cotnmons did not demand their rigbti b
their bills, hut by petition claiui tbeir right
Such an»»ver* ot * Hii*y adviscni,' are m tt*
gument against the right of the subject*
Neither i« the peuiion or prater of thecOio*
mons in p^ii liaiiient., in an^y matter thai ti tbeir
right, to tbe crown, any argucneni igiioA
their right.
I'his was tbe itsiial method, and oocit^
ccHjrae of presentitig acta of parliarueut l» tb»
kings, especially iu Rich. 3'^ time 5 H. 4* w^
part of 11. 5. then corrected tipoo some €«i»*
plaints in parliutiieut tempore H* 5. und H< ^
which may be read at brge in the rotktif pu-
bament.
It is their usual way to aeciirc their rigiite
thus ; so is the Pctitiiin of Itight in Car. I
The Frincc'jicasf , Co. Tit. 8. tol. 19. ifte^^
the various forms of acts of parhaitiont, ia tii«
Severn] reigns of kings, soiuetiipes by ftijf v
grants, *Scc,
That the staple did continue till k>sl» hf (b*
toss of Calais.
fcitat, S E. 3. can. 9. Thut t^e stapk U-
yond the st^as, atm on this «ide tbr seVi^-
datueif by kings in times piu^t* and the |iiili^
thereupon provideil, stiiill C4^ase, &c.
This statute look at* ay the staples set np ^
the kings.
But there was a staple set up by act of fit"
liament, and retbrrned and altered by se^xl
acts of parli:imeut, ifid continue tiotwitbildlid'
jiig the act or 2 E. 3.
But Engtuih nieri hunts are not witbtn
of those staiutes, or the meaning of tbt^P.
And I do not find that Mr. Attorney
any account bow tiieiie staples were
away (ly Ian, but vanished at the taiinf
Calais ; he bath not told as the beginiMiig ^
ending of the staple by law, I know no too-
tDon law ftrr llicm, or bis distinclicia.
Kotis Ahr, Prwocalive^ Title l^roclaoui^
pi. 6, 2r E. 3. by the statute ot' the
was ordained, tbat merchants -ultei
bring from beyond seas mercbaadise
I staple, but not taeix^hunts-denitcen*.
i
ol3] STATE TRIALS. 36 Charles IL
UecBMie mcrchanU-dcDiMiis iioubtc<t tc» be
iliCTchcd in time to coiuc fur their inurcban-
&u, which they pMHed by virtue of such ijrnint
todprociMnation, tbrasrauch as they were made
•atufparijanwnt.
Idfio it wgnated in parliament, 31 E. 3, c. 2.
. 8UL 5 R. 9. cap. 3. Thia statute prohibits
■tUfiportation of gohi orsilrer, and that no
pawn other than lords and gpreat men of the
iMkn, true and notable merehants, and the
lioK's soldkn, go out of the realm, witliout
'the king's lioence.
This ii declaml to be after nnblication of this
mHaamXf which implies sucii Jioence was not
aeeesnry betiire the mahuig of this statute.
. Mr. Attorney was pleased to allow, licences
to pMticalar persons to trade were not re%-oca-
Ut; bat companies having such licences inav
,bt disMilfed by Quo Warranto,
TiMfefore mure sale to fix trade in compa-
TIko doCh tliis charter do tlie greater wnmg
to particular persons, who by law may have
mk Uceaoes, which cannot be taken from
All it dotk BOl appear, but Sandys hath
~~^ " - ee, or may have, and ought not to be
thereui by any grant.
Mr. Attorney din turn this matter upon a
C&n ef lacty which will, or will not make
CMMny and their grant a monopoly :
To, WlwCher this company and their grant
ki iiiEe good and advant^e to the trule of
?
ii a matter not to be decided in this
•ft, I sapiKwe, and we cannot come at this
fnlbu in tois case ; theiefore not fit, safe or
vi»ls determine the law in this case; till
Ik Act be cleared and settled, and that in such
ajaieatvre where this question may be de-
taainad and settled, and the law thereupon
.Mocd and established.
hipPBsrs to the eoilrt, there are many il-
hnd iaings in this grant.
Tktt the grant is a restraint to jhe trade of
lariiik merchanta.
laatit is a new grant.
IWt it may be dangerous to establish such
'pMs by judgment in a Mmrt of iaw.
That taere are some things in the Canary
pMat, in Darcy's patent, nay, in the patent
'fcspau wines, that were commendabio and
itolhl ; yet that litde good did not prerail, but
AiwMe perished, and was poisoned in the
l^apdy A' those grants.
. his adsisabie how this court, in this action,
■a a^adge for the plaintiffs upon this record
the whole grant is set foitli u|M)n record
stofhadiag ; and it appearing to tlie court, tliat
jitot parts uf thia grant are manifestly illegal,
jli amy aoeaaiaa oppression to the subjert,
gitet the best parts of this grant arc doubt-
■'-^foaAaruaefiil forEughuid ortliatnule
open this roll, for what
gcBui the uourt shall adjudge for
defeadant
l6S4.— Tlie E. L Compm^v. SanJfyi. [514
And it cannot appear what part of it doth
appear to the court to be illegal.
This may turn to a precedent for the whole
grant in alier-agcs, since we judge by prece-
dents : and this precedent may occasion more
monopoly-patents, and this judgment givetheni
sanction.
As for the second pouit in this case ; whe-
ther tliis action bcanaintainableby the Company
against the defotidaut Sandy's, admitting their
grant to be good :
1. To alluw such an action in a court of law
for this Company against a single subject,
will be to give them opportunity to ruin any
I subject, that shall oppose them in trade.
They that are too great for all otlier compa-
I nies in England, must be too strong for any
I private subject in contest.
2. If their grant be a legal grant, they hare
sufHcient pains and penalties in it to reduce anv
perpon to compliance with tlieir grant, without
the aid of actions in Wcstininster-hall.
And the grant which makes them a com-
pany, and doth constitute them and their
power, doth direct tlie -remedies, ways and
methods to support and maintain them in their
power and company, in ell the thin^ granted
j them ; and tliere lieing no remedy given them
' by action, I think it may be hard to ailjudge,
that an action will lie tor them in this case,
against the defendant.
Incases of new injuries crcateil by grants
or by act of parliament, and remedies created
to repair sucu injuries in the grants and acts
tliat create them, such remedies are to be pur-
sued, and not new remedies to be gircn iu
courts for such new-created injuries.
This is an action brought upon the grant,
where no such remedy is provided by the
g^nt, and other penalties are provided By the
grant.
The grant directs and gives forfeiture of all
the goo<is iinpoiifid against it, and the ship,
wherein they are imported ; but the grant dotti
not express the ofTtMider to answer dumaif os to
the company, which is required by this action,
and no special damr^es arc laid in the dccla-
ratiou.
This is like a penal statute, which creates
an oflbnce, and ailds a peiuilty .
The party ought to sue for such penalties,
and not to sue for damages in au action uikiu
the case.
This may be the case upon the statute,
2 K. (3, for tithes, it ^ives debts and no da-
mages ; so the case doth not lie upon that sta-
tute.
Upon the statute for forcible cntrirs, nml upon
all otlier penal laws, which \;\\e pcnallics by
^nprlc, double, w tn'hle damajqri*s ;
It was never prnctist^d li» hrin«r ju'iions upon
the case, upon such stululrs, unltn?s in l>arcy*s
case, whioli action luiscarrioil, M<H)r(tri.
I humbly conceive thi;* art ion in not like
actions upon the ct>stoin nf I^ndon, or upon
duties to the city ofI.<oiul.)ii, which have bccu
brought by way of indebiuints for the dutw
aL
615 J STATE TRIALS, 36 Charlks IL i6S4.-.T&c Great CaHafMm^lk$: [516]
lih. Ov * piiblicutu rlamnum^ is i>ift to be iv*
formed liv action ujioii t\)e eas^i l«iit by |iiihlic]
proceeiliujrs by indict uient: or the like r
ii«« * pro privatu (lamno/
The proet'edinn; of ibe Com[»any in tliMJ
action f i^ tiuppuMnl to be to rus^bt tbJ jiiiblic ia]
tbe lianiL* of tb** Company ; out fi>r lb** ir|4*
ration of private darnugc, but to repair Uie pub-
lic tu Ibeir Coiop.iriy.
Tbe C'oin|iaiiy is* in tbe nature of tb«? Idir
fancinl CustmU**} libertatis Aiiffliir ; ^ niitiuQ
to serve tbe public, as tU»*y woidtl bavo it ;
And not to be lifted to n/iH>ver daiii}tg«« fdr
private injuries, but to &up|K)Tt and «a%c tl«t
trade in public actions*
Tliis charter restraiusc tbe kinijf in biJi pfiTft-
j^tive, tbe kin^oin in its trade, tbe subjects f&
tbeir freetlom to trade; tbe king i« coucwnd
in bis revenue, the subject in bis ngbt, in tb*
question.
What the Contpany cannot acc3i»mj)iisli kj
the fiiricitnrrs, powers and pen allies of ibeit
ebailer; ibej' deiii^o to establi»b by ihejadg
incnt of the court, in this action for the Com-
pany ♦
I know the justice of this court i> superior
to tbifi Company, and it is placed in safW tod
better hands than tiiuie or rt>gidalion «f il tti
tbe Company for England.
I therefore pray your Juds^innt a^ifistilie
Company, and tbeir action, for the Udadut.
In all these casec there was a certain doty
cre;Ltei1 by tbe grant, custom oreharter^ vvhieli
made the party ilebtor to the corporaiion ; bu«
in ibis ca??e liere is no duty-cre«ited.
Only an injury declared, and a penalty di-
. rected, wluch ouijlit not to be (onied to an ac-
tion upon the case, in my opinio u.
1 h(»[ie tbe court will not make a precedent
for the company t(» niuttiply actions against
alt persons tbal they conceive to be iuterto|M.'rs
or agj^ressors upon ^bcir grant, company or
trade.
Til ere is no special damages laid in tbe de-
clai'ation to accrue to the cumpanv ,
Only in general, that tbe ileh?ndani, c«m-
ary to the form aad effect of these letters
itent, did trade within the liniiis of their grnut
ivitbout Ucence of the couiminVt »itli a \liip
catletl the Expectation, to the prCfUfhcc of the
company.
VVillium8*s case, Q. Co. 5. fol. 73. Defendant
eini> vicar of Alderbury in Com» Salop, h
bbged by himself, or hi» ehaplainf to celebnite
li*ii>c service at Woiduslon, and within the pa-
'sli of Alderbury every Sunday, and to ad-
aini^er the ^crameotto the jdaintitl', his ser-
vants and tenants within bis $aid manor, time
^iiM% of mind.
And that tbe defcudaot hail not c#'Iebi*ated
Piviue service, or admiuislereil thesucmment to
he plaintiff, bis Mcrvantt* and tenants for a
ertain time * ad damnum' of tbe plaintiff,
•ion cuL j)leade<l, verdict tor tbe plaint itr, movetl
I arresit of jnd^mtut, that an action upon tbe
tanc doth not lie, Iliul tbi^ been a private
icbnj)el for bimf^lf and fiunily, an action upon
"le case had lain; for then no other person
have brought aii action but lumseU'; \m
rants CO ukl not.
Tint in tins uctioa» Ilia teDantu might bring
Ibeir actions.
Which may occa^^ion multitudes of HUtl4i, for
le default in the plaintiff.
The bame may happen in this case ; every
ember of this Crirapany may bring the like
tton n^^ninst tbiti det'enilant.
And as in that case tbe plaintiff had hi^ re-
letly in the ecclesiastical couits ; so hath tbe
irapany their riiraedy, as iheking hud against
offenders, in traile without licence.
If licence was neceiwary by law, by con-
tempt to bis royal nreroguti've,or proi^aiuntiou :
Compare it to the ease of a nalsaiiLe io tbe
^ighway% no action lies lor ii, vvitbout ej^)ccial
* linages^
They do not ^ver in Uie declaration, that
lis trade cannot he managed wtlliout their
'ompany.
If there be any legal punisliuieDt pri>vid€Hl
r micb otfenders, such puuisliments are lo be
uriiued, and not new remedies bv aclmns
cicMied, to tbe grioance and oppression ot the
' lulyect*
Uurcy and Allen, action on the caiie, bron;^ht
J>y Darcv against Allen, lor filing eurdv^ con-
iry toW patent; judgment pri* l>ef.
WUhoms^a case, aCo. p. |tj« Mary 'a case,
Tmit. HilL 36 and Sr Car.
This Term tbe Judg«» delh
nrons srfiuiim in tbb great (
was but slKirt, and his reason^
in those* of Ifolloway's, Vc. \i
1 hare omitted thetn\ to avoid ;,,,.,.
ifo/Mica^ said^ all might lie rrdnr^^tl to cue
single point, which was, wh» i lirter
grautiiig a sole trade to tbiii ' - , CK-
chibive to all others, l»e good ?
Ill at tbtii was a great point, liolh in vvptd
of tbe kuig'5 prerogative, and Uie peoplv't b*
berty,
lie rlivided all trade, uf supret was done fV
Sawyer, attorney -general.
Foreign trade witii Christians hath ka
opened l»y several acts of |»ar!i.imeni ; aail it
common Jaw it was an inb*" * * r,r*r*»,^..»rpcti
tlie crown, that noue si m-
reignci's without the kiiiLi i the
king bav»n:,M his prerogative ai common liw*
an act of pai Jiainent ts necessary to difcst htm
of it } which none hatli done hut lo aoioe ptr-
ticular ptaoe^i,
IVIi * s case, cited by tboiie tliat if-
gtK >mpany, hath not m any «t
beeii uKNwt-M fi by the other side.
517] STATE TRIALS, SS Charles n.
This it a trade not to be carried oa but by a
CmpBoy ; and none can erect a Company bat
The king hatli the sole pmver of this trade,
as of war and peace ; and by dtHslariiig a war,
be nay detemune a public traile, though set-
tledby act of |iarlianient.
Bio iiarliamcnt ever looked on this as a mo-
Bopoly, navi so far from it, as in the 14 Car. 2,
cap. 34, tlii» Company], ^c. are said to be an
•dfsniAtfe to the public; and that act was
Bide, that the peivous of this Company, &c.
sboold not be diifCouraj§;ed in those honourable
tadcaToara, for promoting public undertakings ;
then how can this be a monopoly ?
Itnerer bath been questioned as such by
priiamenl, tbongli they have looked narrowly
mto the king's prerogative, even to the (ines-
liiniBg some thugs that were his undoubted
r^t ; and condiules pro Quer.
WUkitui. Here are two points ;
Knt, Whether letters patent givinflf a sole
ftide to a Company, exclusive to others, be
Seeondly, Whether, in case if they be good,
Mactmilies?
He thmks there is but one question, and that
whohcr the action will lie or not, as the Com-
fay kith an interest or not For if they have
aa ■liimt by these letters patent, then the ac-
tM wift aquestMMidily lie.
IV oat depending solely oa foreign trade
vitk iiMeU« he shall apply to that, and not
■fltfe with inland trade.
Tb a great point as to the king's preroga-
1i% and the people's liberty.
Ao, He takes it, tliat by the common law
Ac king has a prerogative to restrain all his
I from gomg beyond sea, as F. N. B.
IS.' Tb true F. says, every subject may go
iitcCcbe realm to merchandize, <S:c. but that
kto be undorstood, he shall not be punished
fersadoins, but the king may prohibit him,
ai appear bvtlie same Iraok; and that three
•tja, i. e. by the great* seal, the privy-seal or
■9BB^ or by proclamatiou. And though in
I^er 165, citedf by Mr. Williams, 'tis said, that
knre R. 3, subjcicts may )>o beyond sea, yet
Vs there agreed, tlie king may prohibit; and
a f acre is made, if a going over without a li-
moe he not a contempt, though there was no
pnUbitioo. AiWrwards in the same book,
tM, 'tis boUen such departure before express
jNkiMoD is no contempt ; but all the books
a^Tfl when there is a prohibition, then it is a
' As none may go against or without the
MilfB lioence ; so if they are gone, the king
nrncal them, as appears by Dyer S75.
*« olgeeted, the king may prohibit some
Mieriar persons by writ ; but he cannot pro-
■UlallhisMiMeGU.
iMnnd, There are several ways of pro •
liii^ bj writ, which is directed to particular
fMMij ■»! by proclamation, which is ge-
l6S4,.^The E. t. Cemp&ny v. Sandys. [hVi
And all the king's subjects are bound to take
notice of the king's great-seal and privy-seal.
Secondly, The king hath the controuling
power over all trade witli infidels ; he may say,
over all foreign trade in general : he saith, An-
cbelliome's case oroes farther than Fitzhcrbert's
N. B. aud he hath not heard any authority of-
fered against Miclielborae's case, as to trade
with infidels ; and the opinion in that case seems
to be pv^n upon such a question as this. So
that It is tlie judgment of -the court in a like
case, fur he who was then chief-justice deli*
verrd it, and none of the court opp<ised it.
The prerogative of making leagues is in the
king, and he may make tbcin as he pleases;
then it would be hard, the law should five the
king a power to make leagues, and yet the sub-
jects should have a right to do sucn things tp
break them. But though the subjects may
not trade with infidels, yet the king may li-
cense them, or trade himself; as the Jews were
prohibited commerce with the nations, yet
Solomon traded with Hiram king of Tyre for
gold.
The several licenses and petitions, cited and
shewn by the plaintiffs counsel, tliough thej
prove no right in the crown, yet are evidence!
of it; for to what purpose suoold there be so
many licenses fit>m the crown, and petitions
from the Commons to the king, for liberty to
trade, unless the king had such a right ? There-
fore, unless where the pariiament nath opened
it, the king hath power to coutroul all foreign
trade, especially with infidels.
Objecuon. But thonf;h the king had such
right, yet now the prohibiting part of the pa-
tent is void by the statute of K. 3. which is
pleaded; and the enabling part of the patent
is void by tlie statute uf Monopolies.
Answer. As to the first, that statute relates
not to this trade.
First, Because no such trade then in being ;
so that the parliament could have no regard to
it, unless by prophecy, neither could they know
whether it would prove hurtful or beneficial to
the kingdom. But take the act at the laigrst,
yet you must take it to relate to the subject
matter, which was (or wool ; so that the words
' shall be open' may be taken * free Irom custom/
and tu have no other impositions upon them.
As to the second, whether a monopoly : he
says, a monopoly is no immoral act, nut only
against the politic part of our law ; which if it
hap|)en to be of advantage to the public, as this
trade is ; then it ceases also to be against the
prohibiting part of the law, and so not within
the law ol Monopolies.
The company hath been in possession of
tltis trade near one hundred yeant, and thai
|)ossessioii will in time give a right : aud cited
* (irotius de Jure Facis,' &c and concludes
pro Qucr,
S19] STATE TRIALS, S0>Cbaalbs II. l694.— Tie Great Cote ffMMVoOt^: [SSO
The ARGUMENT of the Lord Chief- Jastice I {[J^"^' the ca« wm ie«rfved into the. two
points:
1. Whether these letters patent fpiinff or
granting license fir lihcrtv to the platntilb, to
exercise the sole trade to the Indies, within the
limits of their frnni, with prohihitiim to sU
others, be i^nod in law ?
'2. Admittini^ the i^nt sood, whether this
action be maintainable for the pbuntifis ?
Now to let roe into the debate of theee two
points: I think nut amisj, to remember soae
tbin^^ tliat have been mentioned by the ooon-
sol, that I tliink are no wajn» in qoestiOD.
1. At this time I conceive, therefore, that
whether the kinff may prohibit his snfajeels
from ^in^ beyond sets Dy writ or Q«herwin,
by his absolute prerogative, without giving any
reason, is not the (question; nor rare was it
ever thought a question, till it was lately itimd
at the bar. For tlie writ in Fits. N. B. 85. and
the Register import no such thing ; and oar
books say, the surmises mentioned in those
writs are'not traverseable: so is Dy«r 166 aid
296. For surely the king may restrain his
subjects from going beyond sea, and ia nol
bound to give any reason lor his so doing ; but
that is not now in Question.
2. In the next place, 1 do not concetre there
is any ditftrence (though much disoonrse bath
been*about Indians and Infidels) whether the
Kast- Indies were, at the time of thepwit sf
this iMLteiU, inhabited by cbiistians or mfideb |
though by tlio way, in the debatuig ot' this
case, 1 shall shew jierhaps that matter n»T in
some measure affect the defendant, hut will not
at all affect the grant to the pUintiffs. So that
I coiu'civc, that whether this country or placei
or any other inhabited by christisns or iuMeb,
that is not otherwise provided for by act of
pariiamrnt, will make but the same queslion.
3. Whether every clause and article in these
letters patent, viz. touching forfeiture ef ship
and goods, imprisonments, or iKvers ollMr
clauses contained in the charter, be legal or not,
is not now in question. For surelv it vrooMbe
hani to maintain them all, and thcvefbre the
nlaiiititi''s coun«i>I have avoided those quratioM,
Dv bringing this action ; and though the de«
feiidant's counsel have mentioned them, yd
sui-ely it was only intemled to sully the cauK,
an<l not that they thought them to atiect the
quoHtion.
4. Nor is it tbt^ question, whether by this
grr.nt to the plaintiffs tlie king has letterail er
confined his pi-entgativt*, by putting in a (
nant to exclude himsdf from granting I'
JEFFEttlES*, at the Cnurt of King's-
Bench, concerning the Great Case of MO-
NOPOLIIiS.
Th? l'*nst- India Company Plaintiffsv and Tho-
)iias Sandys Uef'rndant ; wherein their
I'aaMit for trading to the East -Indies, ex-
clusive of all others, is adjudged good.
Entered Trin. fl/i far. 2. B. R. Rot. 126.
add adjuilged 'rcrinino S. Hilar. Annis 36 and
37 Car. 2. and Prima Jac. 2.
Pl.E4.
1. Defendant demands Oyi-r of the letters
patt'iit which arc set forth * in ha'c verba :' In
which (as it hath been observed) the penalty of
forfeiture of ship and goods, one moivty to the
king, and the other to the company, and im-
]HUOiimciit, is omitted.
2. There is a clause, that the company may
license strangcra or otiiers, and that tlie king
will not without the consent of the coini>any
give licenses. Sec.
3. That none shall have a vote in the gene-
ral assembly, hut he that hath 500/. stock.
4. And there is another, which hath not
been mentioned by the coirasel on either side ;
that if it should hereafter appear to his majesty
er hb successors, that that grant, or the conti-
nuance thereof, shall not Im pn>fitablc to his
miyesty, his heirs and successors, or to tlus
realm, that afler three years warning, untler
the privv-seal or sign manual, the same should
be utterly void.
For Plea, the defendant says, hy an act of
parliament, made 15 E. 3. it *i& enacted, that
the sea shall be open for all merchants to pass
with their merchandizes where they nlease ;
and that the dcfcMdant, by virtue of that act,
and Ikccording to the cominon law of England,
did traffic within those places mentioned in the
declaration, withtmt any license, and against
the will of the company, as the plaintilfs have
declared, * prout ei bene licuit.'
Plaintiffs demur.
In the debate of this can^*, at tiko Itar, there
were several matters discoursed of; but at
length by the consent of botli sides, as I np-
♦ " This was the great cause that depended,
at that time, against Sandys fur inteiluping: but
eoncenied the merchants' in Lonilon, wlio ctmi-
eined against the East India Company for
ng a inono|ioly, an.l bv^^an almost to form
an intcrlopini^ coni|iany. But the judgment to otiiirsofhi.s subjects to trade within^theHinili
of law, being for the Ci>iiipany, put a stop to it. of the' plaintiffs rliarter ; though Mr. WilNane
Jefferies eS|K>used the niatief w ith great fury ; (always a friemi to the king's prerogative), in
and though not much gi\en to law iiiaUera, he,
■o giving hw indginent made a prolix Argu-
ment, as the Reports of the cas4*, wherever
they appear, will shew. There was somewhat
extraordinary at the bottom: but I have no
ffrouud to say what." North's Life of the
Lord Keeper Guilford, vol. 2*. p. 109. Edit.
1808.
tenderness and care thereof, seemed to be snr>
prLsetl by the inconsiderate extravagancy of the
grant; and would have us bc!ieve, that*he w«
afflicted with the dismal consequences thai
must necessarily ensut^ by the king's parting
with so great a prerogative ; and that e&her bv
the advice, consent, or the inad^eiiency of hs
attorney -general, and the rest of his <
a, I am of opioiou, tlioog^h it makes no-
ihiB^ to tlw c|uestion that is now Mem us, the
Idnsr niay {^nt liceiii*es to any of bis subjects
li trade to the £a8t- Indies, notwitlLstandin^ the
cbirter, or any article, danse or condition
uiied, to the cantraiy ; and not-
any caution or advertisement,
bis iipinient he gate to tlie king, or
Ui rejection that he made upon his counsel,
dliter fbrtbeir ignorance nr hasty inadvertency
■ tiw pMriii|v of that Qnux. ' And I am the
nihcrimlnced to be of that pereuasion, for that
At Boat learned of our profession, whose opi-
MW have been quoted by him and others that
hwB arned on the deiendaut's side, were then
if Ihe kiBit's counsel, and were privy to, and
*^~^'i bi*th these letters patent, and all otliers
SilJ STATB TRIALS, 36 Crarles H. j684.— 7%e E. L Company v. Sandys. [599
bf having' a ^mter r^faid to the East-India any of the cfauses in the charter ; so I am of
Uapaav for the sakie of their money, than opinion that that objection also does not affect
tbey had to the kiu;^ in discbargv of their duty, the question now tn l>e determined : and for that
T« acquit tben and us, therefore, of that resbon, amongst utbcrs, I thoiig;ht it not im-
proper to mention tl»at clause m the charter
that was omitted at the bar, whicb the kinj^
has annexed as a condition to his i^rant ; that if
it siiouhl hcrcat^cr ap|>ear to his majesty or
his sucoessors, that that ^JT^nt, or the continu-
ance thereof, in the ^holc or in anv part, should
not be profitable to his majesty, liis heirs and
succciisors, or to this realm ; that after three
years' u-amini^ by warrant, under the king's
seal or sijzti manual, it should lie made utterly
void. S<i that it ajipearine that the king hath
neither divested liimself of the power, nor at
tlietime of the ^ant did desi^ to be prevented,
to shew his inclination for the promoting of tlie
advantage of his kingdom has given himself
scoi»e enough to obviate all those cmergenciea.
Yet by the way I cannot but observe that
Mr. W'illiams, to shew his dislike to a com-
monwealth, declared it to be absolutely oppo-
site to the intei-est of a single person ; but the
single person he concerned himself for, was not
the king and his prerogative, but his client Uie
defendant, and his trade ; who though I can*
not in propriety of speech call a common-
wculth, yet 1 cannot but think this opposition
of his Seems to proceed from a republican prin-
ciple. Tor he by his interloping has been the
firvt subjpft that \\ ithin this kingdom, for near
an hnndred ^'ears last past, hatli iu Westmin-
ster hd!l publicly opposed himself against the
king's undoubted prerogative in the grant now
h(*fm-e us : and I hope, by this example, the
rest of hrs majest) 's subjects will be deterred
from the like disobedience.
There were some other superfloous objec-
tions made against the clauses in the charter^
and against the formality of the pleadings,
which 1 think not necessary to rcmcndier ; and
therefore having thus premised, I shall now
descend to those points 1 think only material
in this cause.
1. The first and great point in this cause, is,
whether tliis grant of the sole trade to the
Indies, to the %ast- India Company, exclusive
of all others, be a good grant in law or not ?
/Vnd I am of opinion it is. And by the way, I
cannot but make tlie same remark in this
case, as my lonl chief- baron Fleming made in
the great case of Bates in the Exchequer, Lane,
f. 27, that it is a great grace and eminent act
of condescension in the king to this defendant,
that hv. does permit this great point of Ills pre-
rogative to be disputed in Westminster- hall;
but by this he iloes sufficiently^ signify to all
his siibjccti;, that he will |)crsist in nothing,
though it KTcm ni'Ver so much for his advan-
tage, hut aru'ordiug to the laws of the land. I
sIihII thcroinn; endeavour to nkakc it appear,
that lie is ixw csU:d with this prerogative ny tlie
law of this nuti^iii : but by the law 1 do not
only menn ilit eustoniarv <M)mmon hiw or sta-
tutes of this ri ulm, wliieh are native and
peculiar to this naiion, which, as Nr. Attorney
rest of the king's counsel, have dis-
dnifel their ^uty as well to the king, by
'inguf this ([^rant, as Mr. Williams has
manifested his loyalty, by en-
^ to dfstroy it. In short therefore, as
1 uaA h^bre, every clause in this charter is
aNta ke ■wiDt-.i ed. and therefore is not to
afcl AiqWKiifm now to be determined.
5. Whseas it has been cibjccti^d, that though
i^ AepleMlin*.^^ ^^ i^ agreed, that the chrfend-
an Bfvcr was a member of the East- India
Csapny, Aor had any licence frmn them to
Mfcti the Indies, vet he might have a licence
taifhe king ; winch, as f conceive, the king
■ Bfl debarred to grant by any clause in the
patrat ; yet I am or opinion, that if the
bad a*n^ snch licence, it onght to have
m «m hui part ; which not &ing done,
it «i|kt to be taken b\ us, as I believe* the
ftMb af the fact is, the Jefcndant never hail any
Mhieence.
•L h was obserred, that the plaintiffs in their
Mmuian had alledgcd, that this trado could
Ml be maoaged but * per hujusmodi Corpus
"^ itum ;* and liy this means they had
the king from constituting any more
s to trade within their limits, though
ndnrn the adrantage of this kingdom might
MBmr reqaire it. Nay, though the Indians
l%bl denre a fmther treaty of commerce, or
te tbe trade of those places might require
■ftecorapanies to be erected ; yet say they,
AbpaDi hath made the plauitins a mere re-
_ |iMe, and thereby has ahvred the constitution
• ' Bi^and, in the management of trade by
■■Miwealths, bv placing it in companies,
dii (were they iodepenileut upon the cn)wn)
MMy so calletl. Yet in as much as I did
HftK observe, diat the king is not by lb 13
Pf^ either cvchvlcd from making any new
■**^%ith the Infliaiis, or from making any
or grantins any other licences t<»
It or his ffUDJccts, DOtwithstandiug
5S3J STATE TRIALS, 3<) Charles II. i584.— 7Xe GrAil CauofM0nop0Un:\m
can at this day use two trades ; i. c. a carpco*
ter cannot use the trade of a joiner, or a mek-
layer of a plaibicrcr.
2. As to the trade of merchandize or inlaml
commerce, geuerally spealunff, it bad the naxt
frpcdoui by the common law, mit was subiect
iievcrthclt^ to be limited or restrained by the
kiunr's prerograti?e in scferal |iarticulara ; i
well obticr\cd, arc not adapted to this purpose ;
hut such other laws also as be common to
oiher nations, as well as ours, and have been
rebetved and used time out of mind, by the
king' and people of JCngland in divei^s cases,
and by such ' ancient usage aie Itccome the
laws of Kn^land in those cases ; namely, the
general laws of nations, the law-merchant, the
imperial or civil law ; every of which laws, so
far forth as the same have been receired and
used in Encland time out of mind, may be
properly said to be laws of England.
And for the better conununicatingf my
ihougbts upon this subject, I will proceed by
these ste|)8 :
1. I will very briefly consider of the inland
trade within this kingdom, and the foreign
trade with otlier nations ; and therein observe,
that the king's prerogative is concenied in
both, and that there is a great difference be-
tween both, allowed by the municipal laws of
this kingdom.
2. I shall shew that the liberty of foreign
trade may be restraineil.
:). That foreign trade and commerce being
introduced by the law of nations, ought to be
governed and judged according to those laws.
4. That by the laws of nations, the regu-
lation and restraint of trade and commerce is
reckoned inter Juris Regalia ; t. e. the pre-
rogatiYe of the supreme magistrate.
5. That though by tlie laws of this land,
and by the laws of all other nations, monopo-
lies are prohibited, yet societies to trade, such
as tlic plaintifis, to certain places exclusive of
others, are no monopolies by the laws of this
land, but an^ allowed to be erected both here,
and in other countries, and are strengthened
by the usace and practice of both in all times.
c5. I shall shew the authorities that are ex>
tant in our books, together with jnecedents,
and reasons both public and pohtic ; for, as
my lord Fleming says, that such reasons are
good directions for our judgment in such cases
as these, being demonstrations of i\\o course of
antiquity ; and therein ab>0 observe the neces-
sity andadvantage of such societies, and by the
way endeavour to answer tlie se\eral acts of
parliament, prcci>dcnts and authorities, with all
other the objections tliat have been made
against my conclusion.
First, tlien, to consider the difference between
the inland and tlie forcifpi trade allowed of in
our books, and that the kmg's prerogative doth
affect both. As to manufactures, under which
all sorts of artificers are concerned, I tliink
they remain with the most liberty b^^ the com-
mon law ; and as Mr. Attorney observed, the
public weal is little concerned therein, only to
preserve every one in the quiet enjoyment of
tlie fruits of his own labour and industry, yet
even in that the king's prerognti\ e hath not
been totally excludetl : tor as it is taken notice
of in our books, all things that arc at this day
eiyoycfl by custom or prescription, hail their
commencement by royal grant ; and by that
mcaiu no artificer within the city of iJuuloo
for mstanco, to |>revent all furestalliug and ni«
grossing. So Mr. Attorney did welTobsenr«t
Uiot numbers of people could nut meet It
traffic or merchandize, without being in dangar
of being punished as unlawful aaacniblies : the
crown therefore granted tlie liberties of Hun
and markets, for the sake of commeroe and
trade; all which did originally proceed fran
the crown, and therefore by abusing than
Ubcrtiea may still be forfeited to the crown;
and passing by all other instances, 1 shall
only lUbtance one taken notice of iu our boofa,
which well considered may go a ^reat way in
the case at the bar. fluster, lol. 107, Ihn *
king grants to the abbot of Westminster ani
his successors, that they should hold a ftirat
'Westminster thirty odd days tocetbery with a
prohibition that no man should buy or acU
within seven milesof that fair during that timt;
and tlie king does there command the iihnift
of London by his writ to seize the body of M
inhabitant oi' Salisbury, for selling cMIm ii
London within the time of the fair. Now boPi
is a charter granted to a particular perwn a-
elusive of others, for a time subject to more o^
jections than the charter now in qoeslJoD, yet
approved of by our books. Henoo it cuie
that corporations were erected, and trado oaa-
fined to places and persons exclusive of othen^
for all such came originally from the crown :
and as I said before in the case of friia, so I
may now say in the case of corporatMNU, that
thobi^h they claim liberties and privilcgea by
prescription, yet these originally proccodcd
from the crown, and are therefore forfeitaUa
to the crown : an eminent instance hereof m
that case of the city of London, for abung
their liberties, which they claimed by prescrq^
tion, confirmed 1 " *
parliament \
liberties and
kind's hands, and therefore remain as a vill la
all intents and purposes, till his majesty shall
be pleased of his bounty to restore them. Now
tliat tlic inland traffic is most concerned, citlMr
in corporations, markets, or fairs, which- all
proceed from the crown, does plainly « '
that the king's prerogative has a more i-*
diate influence over ctealings in mercbandian.
than it has wer other mechanic crafU and
mysteries : and that, as Mr. Attorney did w«l
olxiene, to prevent frauds, deceits, and
abuses either in weight, measures, or
wise, which wuuld certainly interrupt poA
commerce. Hut our law goes yet a step for*
ther, and allows further difference betwaen
inland merchandiKe and foreign, and allowa fr
different way of determining controveniei thii
arise thereupon , the common law and flainM
TATE TRIALS. SfiCHAlltKS IK l684.^7%e E, I Company r. Sand^fi, [&^6
•llotvltiar
lnw-merchant,
.UM and
limn a
rli «i the
t JOII
iif, wliTi IS not lunitjfJ
.unoii lavr, to have
11 n, ami tw ob«ierye
I law ; hut liliati kuc
; to ihp law of nnliirc,
iuw of tilt? world. And
^ M m uuH cflHp tt^rt'«Hl by
on ti%ik|]ri>
lot'i
If two n
I ■■ ■' t % "
•ilfcwi If one
I
^B|fm|» in^rAiiiilhMi ii«f r \tmffd,
^M^'MMiMiI hi.- — --'' ■ ' '' mer^
I ton
>D ot our
iliai crf»Ks
nnd commo-
t ncrs in met-
t iiccoinjit
I.Kk^iujdF-N.B.
iteot' ibe common
1 of other
the one
> J ^iiinst the
»nts die, the
lit a^ainfet the
135, K. N.B.
hip for other
1- actresrentli,*
ntiion law,
t i^ ji«in|de contract,
\m !«tw ; but it is
fidizt*, ill
iUjf. 260.
imoa bw, Ihe ^*H>dv oi tcclesjastical
wcfi- ifxcused from it>ll ; but says the
•lii,' Oom tani! ^ ■-'':' :\s ftUquis Hon
* «a»fnla4 tl6 il . that then they
kiiaiiilcriJirxtlK If one mtio
vn^ftnaotK*; inhere an ac-
te wf t^r-f%i^i.i t a merchant's
ppiii ' ^md the seas, there
■M 1 )1 io obtain latu^*
%m, ike ymtt fiuii. :^ Ed. l, M. 19. in Ar-
Ai?i Turn* l/wif+m, where the baihffs of
«M nded by writ« < quod
llcrcd *\ieaat9 ad partes
im (it^r tjona ^k eatellB sua
infil Ley;em Mett^atormm
in r^|*i, ad satit^faricmdnm
Fior^iiljnm, \c/ Uhirt-, by
^hom Ub^ '>n laiv, is suid
WGHM«»r/«i ^ hv n^hit'h we
tizea and
', ♦- of law,
IjPlllft^Uj 11 U Mr Itself
»«l tela ^Qve been also
t>very of debti
the itatute of
aiamie tf< ivi<r#a/4»f>^iii, and
4.a|
nt. .
lanim tH
the fttatute iricesimo ^eptiin. Ed. 3. <^ap.
araoHL ^ '' r ihingpi it is enacted, * That foi
* tnr taken away, the party shult I ,
' arrt^..' vl, .^u^i s|K*efly and ready^ procos shall
* be ag^in^t hirn frorn day to daj, and front J
* Fiour to hour, acc^irding to the Ia«r.roerchantg4
* and not at the common latr* So the siat»f«J
for crectinj^ the court of insurance, desiffned lot]
the spLt'd y €iu<e of merchants, hii* U^ft the detei*
minntrnn nceordini^to the law of merchants ; an«|
therefore hath ordered the jndg^t^ of the admi^J
rtilty court always to prcMde in thoqe commis^
sions. By all which 1 thmk I may fairly con*j
I'iude, there is a j^jrcal diflerrtice allowed ofj^
betiireen the inland and foreign eomniereo^j
and that.
2. 1 shall endearonr to prove, that the li-i
bcrty of forci*4n trade inav l>e rciitmined.
And here I must premise, thtit an at tir«l alt]
thirnsfs were promiseuously eomtnon and uni!i«i
vided to ally so the fre« exercise of rhi»i univcrail J
rif^ht, was then instead of property ; but
soon as the number of men rncreasi^l, and ihej I
found hy experience tlie inconveniency ofholtN|
ing all lhtn<T^4 in common, things were re-
duced inlopriiperiy hy agreement and compact ^1
either express, Hs'hy partition ; or implied, hj
' premier occupancy.'
A(ter this gcivernmcnt warn established, an
laws were mule, even for the ordering thosal
things to which no man had any ri^ht ; as iof 1
example, deserts, places* nuinhabitcd, inlands if|f
the %eas^ wild beasts, lishc«, and bird* ; thfl
former were usually gained and dUpo«^ed of bjl
him that had tlie sorereignty ofer tlie people tl
the latter, by him that bad the dominion ov<
the lands and waters, who might forbid othe
from hunting, fishing, Sec.
And in virtue of this uniTersal law, his ma^l
jesty and his predecessors haire always dis^l
posed of the several plantation* abroad, thafl
have been di<M;overed or ijrained by any of thcM
subjects, and may do for the future, in case anj
other be discovered and acquired. For thong
the law9 of nation*: can command nothing
which the law of nature forbid.^, yet they maj
bound and circuniscril>e that which tHe laii
of nature leiiyes free, and forbid that which na^J
turally may be lawful. Now to apply this 1
our present purpose of trade and coramerc
Mr. Williams quoted that common saying^
* Comaiercia dehent e^e libera ;* from whenc
he infers, that by the law of nature andnationd^
the sea and trade, and tralHc ought to lie as fvtm''
as the air : and for that he ha^ cited ' Grorint
* de.Jure Belli ac. !*aci?, cap. 3. Wdwood*i
Abrid^m. of the*«ea-law}«, in his epistle to thv
lord Admiral ; * firfitiiiide Mari libero/ where
he says, * Mare ^ f^ittora Marin Jure fientium
' KUnt communLa, Britton, cap. 33. l>e Jlur*
* chtt!i, le mere Ac le air sunt thores Common 3
* Sir John Burfough h'm sovereignty of
* seas ; Bald us de reruin liomiui**,' But
think nruie of thfwe l»ook<i can warrant his con^
diL^ion ; for surely that expression. * Comme
* cia sunt libera/ cam mH possibly he undenitoi
in m^h » littral mw, I'htt ercrv man
aS7 1 STATE TRIALS. Z6 Chasles 11. les^.-^Jie Grtat Cam^ffMati^pMa: {SSi
crery nation should, be at liberty to trade,
cither in .what commodities, or to nbat place,
or at what time Hoever he shaU think fit. For
I took it to be granted by all that arfirucd tor
the defendant, that trade and commerce must
be subject to some laws; and Grotiua, in his
book ' de Mari liberu,' proposes this main design,
to prove, that any one nation had not power to
hhider another nation from free commerce ;
and that the Spaniards therefore had no rigrht
to prohibit the Dutch from trading into such
parts of the Indies, wliereoi; the Spaniards
were not possessed, upon pretence that they
kad'the dominion of tliose seas : ' Internes &
* Ilispanos,' says be, * bzc controversio est,
' sitne immensum et vastum mare regui uuius
* nee maritimi a oessio ? Popuhine unquani jus
* sit volentes populos prohibere ne rendaiit, ne
^ peroputentf ne deni<|ue commeent inter sese.'
And for the benefit oi bis countrymen he doth
therefore assert, < iicere cuivis genti quamvis
* alteram adire, cumque ea neeotiarc ;* which
taking that to be true, which by the law c^
nations is oertainly otherwise, yet nothing can
be inferred from thence, but only the question
of commerce between one nation and another.
And how that was before leagues and treaties
were made, little may perhaps be found, as
Mr. Attorney well obsenred, besides the laws
of bosjiitalifty, which do not f^re any demand-
able nght ; out surely Grotius there hath no
particular respect to particular sidijects of this
ffc any other nation, how iar the supreme
power of any nation may erect a society of
trade to a oertaui place, and for certain com-
modities, cxclusLTe of all other subjects of
their own.
And that plainly appears, l)oth from tlic
scope of his book, as also for that for several
years, both before and at tlie time of publishing
that treatise, the Dutch East-India Company
was established ; which I shall hare farther oc-
casion to discourse of by- and -bye.
As for Welwood*s Epistle, I have seldom ob-
served that epistles have been cited in West-
mijQster-ball as authorities : yet supiMsintr it
tn be so, that all loyal subjects shall have their
petitions granted to safety and security iu their
irade ; I suppose Wei wood little dreamt of in-
terbpers, when he talked of loyal subjects ; if
it can be meant only of such who may ti-ado
by law, that is to beg the question in respect of
the plaintiff and defendant. As to that of Hrit-
ton, tiiat the sea is common, it is answered by
what liath been said before; and Welwooit,
page 6C, says, that by commune or publicum,
IS meant a thing common for the use of any
one sort of people, according to that sayino-,
' Roma. Communis Patria est,' but not lur all
of alt nations ; Welwood, page 06. That pa!>-
rage of BurrougU is only observed to provtf
the king's prerogative within the fuiir seas ;
and though Mr. Williams wouU have insinu-
ated, as if the sturgeons and other great fish,
and wKcks, and the like, had come to tJie king
by the Sut. of' U £• St c S, that act wai; but
a deckntioB of tko coaiBon law \ for he had
it by the right uf his preromtive-; Plowdea'i
CooimenLirics, in tlu? case cf Mines ; Coke 6.
Sir Henry CousLablc's case; these things were
vested in the king by his prerogative by the
common law. Yet f cannot but observe, thit
the treatise of Mare Liberum, on which Mr.
Williams so much relies, was craftily writ, t»
overthrow the king's prerogative in tnat bow-
ficial part thereof, relating to tlie fishing on tht
En^sh coa^ft ; and contains a plain procla-
mation for all persons of any nation, indiftr-
ently to fish in all kinds of seas ; for says cip.
5, fol. 10. ' Qvm autem navigationis cidsB
' Piscatus habenda est ratio, ut communis na-
* neat oiimibus.' And lierein thougli Mr. Wil-
liams intends to make good tlie praaiaet, I
presume that Mr. PoSlexteo, that wgned M
the same side, has a mater conoera for hii
friends in tlie West, than to join witfa him la
make good that conclusion. And before I «
offfr«Mn this point, I think it not Mnia, tic
better to ckar tlie way to my condusjons, ti
give some instances wlierein other nationa, M
well as our own, have not only tboiurhl itkgali
hut necessary for their several public Adna-
ta^, to put restrictions upon traoe, anddidail
think it injurious to natural equity, and the fi«e-
doro of'mankuid, so much discourncd of on ibi
other side. To give some lew instances ; * Vi-
< demus Jura Commerciorum,' says BoJjnde
Repub. lib. 7. ' non solum omnibiupopulma
principumqiw' inter sc consentis, wiun aliiB
singularum Statutis,' &ic. And after he km
enumerated the compacts fur traie between ihi
Pope and the Venetians, between the citinM
of the Hans towns, and the kinga of £n^iBd,
France, and Spain, and several other ooontries;
* lUi,' says he, < inter se Comnaeiciiim nBMi
< modis personarum, mercium, looonuM, tsui-
*' poruin atque omui alia ratione ooaiotanwL'
So is Marguanliis, fol. 155, and Bodhansn io
his 7th book de llehm !Siroliie ; and inaUcoMir
tries, the importuiun uiid exportation of MMM
conimo<Iities are proliibitt-d, as salt from Fna6i»
horses from uUier countries, wool firom I
In whomsoever tliut
ut power of restraint dMSit-
of licinsiiiG: some, andit-
iiiain, the |K)wer ot iici-nsiiig
struinui|r of others, burely does also i
piu-iiy 4»r n^ason ; but of iliat more by-i
And ;is 31 r. Attorney diJ truly obaorve, if*
iierusal of the statutes that arc now in pnitit"
latiiitif to irade, tlie parliaiiieaits havo insHlpB
even to this kiug's reign, since his resUnMi
thoui^ht tit to make imti-e Utus to piohik^^
reigu trade, than to increase it ; aa Miif
upon it more advantageous to the oonai'
v^eal. And thus having observed thatcflhff
nations, as well as we, have not only tboi^
it Ie;^.il, but necessary, to make hiwsfsrll*
restiaiiu of trade; aiul thereby tbmightth^
dill 110 iujustiee to tlie liberiy of msnkim^ :
3. I priKHvd to tUi: next step. 1 shall ikK^
fore, thirdly, endeavour to prove, that ftM|B
li-a<le and cotuinerce, bcincT introduced bjf IW
laws of nations, uuglit to be governed anM*
judged accenting to those Uw« ; aui IdMP*
know of any sutute or book dt itecMH^
taij STATE TRIALS, dtiCaAEtss II. 1684.-7^ E. L C^mpan^^f. 5^dfj^#. [530
cauiiw?) ait iIk' iwr :
' Jure Getitiutn esse
pre^ trxt of l&w, ^ ex
rem Punt in!it<tuta:'
' ly true, and
\ suae cuiimiercc^nntl
(ite i'AW of nations by
L : .1 ; '1.1 ' ■. '.. - ..'H
■1
*» in * C I IM-If' i!i
lii Iij4t country
- kitJ^uiM ;
bt ' orer?4y liow be-
lt^ I but by parlin-
itfU.
Jld mkiT i»alioii» hjtre ^vrriifHl lheins4*lres
> ky diis |m*cij»li* ; »»id upon lh)» m'«iini!
L)l8feilti*i» rtvuit iii odiitiraliv in tliiM kiii*riJaiii,
11^ iii^ in
[Aiik«. AoJ it) as a Hitil
slam ol'tl"* . ..„tl rmr^
?»» i»-jvwcTti e* uriiuig
Hn^y Im r<*ar auy sart ot pi-oporlioii to tjie
il ' I ti» 4-i>utrnd
i Ml WvsX-
dtici laiuirig ibis
us^d i»y our pre-
i likig e4iustiti» and
, Idbiwtk
c btUcr
nieibtirk
Uioo i"
4 futk^Ur V'
imnt;
i ii«iL tiivuj M(,yN|it is
■■ i\ and Icavtrs the de-
r... I,. il,nt [aw I the
itedi miike
^ of ihijt nu-
de terttjiticf J according to tbc
wfjirli \h \mn of the law of
1 is univa^i), and one
n«s iniiie world, Aud
: Ciccr "4 of tbt}i law, says,
it tju lie, aliji Athetiis, alia
lia pcK^ttiat ; s* (1 ct inter omnes gentes
viftiii lf*iiipore uiin eadcmquc lex obdnebit.'
1 1 (titt rtdm Uioti^hi ? ' ' v ' r i ^ more
ily tn ararcdi ii ttans.
t(» enablo Eitie to «: >-* t)
, the o^aequence \^ I i
I'a aubjri;t$ in nTI pni l>i • > ! |
Ithrrt*' .1
FTtoiitijj, 1
Wikt gi\^ fiasc ofliiU«!», liiiimi ihi
Md ciiJTaola, Lan^yfol. 97, iiiid d<M
dviB if «a B0e«3aiaary» but Ibe cotiioiuu (^ihc-
flbn of ^ jifedv^. in aU ti^tm,
D^iMC wel
law I "
fOI. JU
lort'j^ii ii*;*n*»rs^ iHaUt*rs Mt
navi|^tii>ti» leagues, inicTs, vnibdHsies; nay
even in th** i>nv%' nf iiu« Iilh rlip ^tctiMtiittr of the
defend in ^ '«$, was
leJt, by M: ■ .;i.' - ■,:,;,,, ,v ' ^ 'jid aAer**
waids by tho <Tonrt4 ol Uummun Pieuii, and
Ex«!hc<iucr, to be decided m the iidniiraltv ;
timi bv virtue of a ptoecss out of tlitit court, tuft
i>\n[t is detniuiit ihiit day« And iis 1 said^ that
c«urt proceed*! according to the law of uHltoaf,
and the matters before apecdit^d are tiot lo bs
couiPiiiiiMl by the rulesi of the common law.
And if custoiii3i make a law^ theti the cuatoia
I of a:itioi>«( in «»urely the law of natiuun ; whicb
I biinifsii nie to my next particular, wbicli is tb«
j uv^iii tbln^ upon which this cause wUl turn.
! Tb*relbre, 4thU% 1 conceive, that both by
the law of nations^ and by the (dilution law of
£ni;laiul, the re^ulatioti, restraint and st)vern-
merit of foreign trade and commerce, is reck-
oned * inter Jura He^liu/ i. e. ig in the power
ot' the king: anrj it is his undoubted preroga-
tire, and is not abridged or conlnmled, by any
act of parliament now in force,
I'biii question is not concerning the coiise*
qoencc^ of this power, or ajiy iiiconvenienciei
tlmt may happen tbercupont beeaufle upon in*
couTenicnces arising, t!»c king is to be suppli*
cated to redreiia tUem : whteli I ^hnU farther
take notice of, when 1 come to answer the par*
ticular ubjections made atfuinst this arrant,
* Conimerciorum Jura sunt pri%'itegiata, aa
^ non nisi iiii cuncessa qui exwrceadorum Mer-
* cainruin lic^ntiam pnncipis indultu et autho-
* riiate meruerum/ in the very expre^ text iit*
the civil law ; and 6o i<i C^pzovius, Con^t. n.
5. fiodinus dc Repuhlicti, lib. 1. c, 7. says,
^ Ctuu! tattietsi Jure (ientium ci>se videantur
* prohiberc, tanietsi awpe k Principibus vide-
* mus,* Ami in c, 6. quoted by Mr. Attorney t
That die Liws of commerce are contained in
the particular compacts and a^eetncuts of
prinees and people. So Sahiinsius^ pag. 236*
* Merest ura est res inditterens, in qua Ma-
* gistratus Tel in Tetando vel {^>ermittendo so am
* pro Cocnmodo Kcipublicoe potest imponere
* authoritatem.' So Carpzovius, a famous
German lawyer, Ld his decisiona, lib, decia.
105* N, 13, & 14. * Exempla baud rura snot,
* ybi PriTilegio et Edicto Principiis coinmercia
* ad certas persooas certave loca restn»gia<e
* videmut.' Tbaae rulea and priociplea, as-
serted to be the laws of nations, agree with the
principles of our laws, Mr. Attorney, in his
argument in this cause, ctteil many records and
p*vc«denii> to moke good this assetlion; whicb
I think he did with great clearness. I there*
forewdl content myself with as few of them o«
1 cuii ; and uidy rcmt»d you of such a% I think
abiiehii( Iv necesaiary to make gtiod ttiy asaer*
titui. ivhich 1 will do by these steps, I ooti*
I kini; liail an absolute power to forbid
- -a, wTjL'iher merchants or others, from
<ioiHiug within his dominions, Iwth in times of
uar and in times of peace, aooonliiig to his
roysil ^^ ill '^nd pleasure ; and therefore gsre
saib-conducts to [serchants e»trsQg;«rs, lo coma
in^ in all ages^ arid at his pleasare ooininaiidtd
2M
m7\ STATE TIU4LS. $$ CUkmtuB IL l6^^
«v^fy iialioti ^lioi^ld. ht: U i'lhtrty iv lrttJ«, I
either m vvh'dX eoff^oii^tlllic^, nv to iibui |tl.it-i-.
^r ^t hIi^ lime «4>c^er h« ihoJJ think f^l'
I tut»k u til Ui' ^ntutcd hy ull t^iat ;irir
be >ui^«cl tg stptiic ia^ry ; iinil Un^,
bimk * 4e M a rt 1 i Lm' r< 1/ |»rvp>»(> t li t» ui r j
to pnjte, tliat ;uiy Qrwi natluii bitil ii^^r |.
himl^r a[. " '■ , r . '". .
parti of liiu iiidk'rf, ^v!
were not [ias»i»»4nl, ii^uui j..ti 1,
Ua^I tKe Udininioii of tlioMr u^ : ' I
' nbpaufiaff^ «iy3 bt% * bsi- rontri
' sltiie iiinttien^unk et vasltim r^
' sh voknicx pj{iuli»& probibiie ub v«id«l
^.
"H';
Ai)d lot tbu bciutUi oi 4i4 coui<t ^
thciT&f^ ttfirrt, ' bc«fe niihi'
taking Ihni to Ik? tniet nbicb i
iva»»UH is usdaiiilv «>tliisrwiiCf ^n
b45 LuJerrcd tmft t£tiui«t t»ut ^my ^
of coinuiefco Iwiw^ii mm fmtkm
And tioH' that ws» bdbn; kigiie»
wt*rt! matli?^ littk* nii&y |^biui» ^
l^ir. Atl«riivy wi^U obwrirw)^ brj^ii
Df ho9|iiUlilY, wkicb do tuft givt*
jibliz li^tit ; btii sufciy GroUu
imrticiikr rtupiK^t 10 piartLcuWv
6r auy fithcr nntinn, bonr fji
|H>wcT of any ii«Uoti cuay «n
trwk ti^ u c»£rtjiui |^lmi*€% uiiil i
tUMdltia»r cxdusive of nU '
tbeir uwm.
AuO tbikt plumly MipiiDs >
ftcope of bu book, mt Jim fiu
yeur!t» liotb bulore ftiui it Ibe t 1
liijit te€:aliac, tlifi Batcb Bass 1
woe ti^iMsbetl ; wbicb 1 %h^\
4^011 10 diiitiatine ol' by ^tiAi} * '
jervtid ttuLt a|»uiU«i bare ti^. .
lEikjftcr-baU «» «iitH(khtt»% -
tu bti Sttt Uial all byidjiiib)*^'
|ielitiim« gtattled to itic i %
it flm ttt tuciAt oqI^ of
% kv, ib«&i« to bof tb'
tha ylajalitf imd dvli^itdii:
wb^ tuiii b«2Ga Kiid Ml|r^
p«|f<f a(Ji say«» Ibai bjr cBinit.
.It niaaiii a thiuif coomni;
one c^n of petijilc^ acr
* Xiuma CuutmuoiM Putr.
tiu: kii}|c'» l^^^^'^^ii'^o
aad invvkt, and ike bJkv;
- ai iltQ dianar
k^ai sne not ifa
-.:■ ^ly 1m% f
-, «Dd irjirismJ :
• W« of QUIUTL*,
'it no mun k Im
mmfimeRt^ bwl
.ttif only liiitL
f tn5rL-s witb
n-iaijfi and tlwj
, lucrebmnU
1 1 ncili nrcafdjuy 1
*' £f by lli^l
J ciLniKit ba p«t 1
I- abMitutcly m0l«r<
i lie coaM not lie, q ^
wm lA Ity n^iriific s
:^0ii 10 knra'gn
. «• jr is pmcbimrdt 1
^jMfed: and thr ^
r eases *si* wur* ur
^■ii riioi Uii^n wniif]
II tbc icing sbfiii
r^ifvraod peace^uti
timMiftf tbtf one,!
jg fi«i tbcfrfnrr tbi
^^ ^iiyt f^Nidi of ihe 1 _
trade ra,
'illi in thdr
uitT the l>nr*
rtnd mlran-
I tii tike notice of
tmrnxi*! liy lilt* ^kl^ud&at's
iiiMilil(«ii««i tbat ilie king
•ctb ihm firerogiittve : for
voanyji penran* tcwllni^ to
»liiii ri*«tfi^Q theiii from
l*atf i>t ibr* world, Tlie
MiHtrtuti m u ^iilj«ol to hb
A tfi«Tif» in <»ur law, the
to d^ tf fting ; An4 I
>ui pra/etice uf our pre^i^at
■ lJii« Ivs^t iitnHmg^ for
I tbiuk I ULuy truly say,
{Miner 'k urt'ii iiMtufal in-
U li> *n_Y law* ill tiii^ [mv-
I'-- i>u- flhucitiitii [Hiwer of
Uj^ itiber&nt pfcro'
iiiietrt eaotna dt-
» ftbt; cut' of murder is a liill in-
1 1 nnr lYHH that pnarogative ever
kk n(0'- ihoiitrh never so trouble-
thut siiii^le c:we of the earl of
without any reason, tbat 1
£ b it theretoe to h% ob-
'" ^. r. Campmy v. &fid!^t. [AM
I III, that the Ion; will pardon
., Durderers aod robbers, and
!Mi niiike use of bis prerogatire
' '...4.. ..ii'.tirs osca|)e?
' "l: IS ilio foiuitaiD of boDoar, as well
■ '-iKt^, and in viilue of that prerogative,
""^mmIiu* ns many of his subjects as he
, ' '^^ : iiiul thereby exempt them from ar*
-■^. nud other common processes of the law,
' V mcr^ns whereof men do more speedily re-
nwvT their just debts, aod huve redreas for in^ii-
rip<:. Ik it therefore to be presumed the king
will inuke such a glut of noblemen, because be
in:i y do it ? And as this is against his inclina-
tion, so certainly it is a«fainst his interest, to
make such grants as the defendant's counsel
seem to fear ; for it is more for the king's be-
nefit timn it can be for his subjects, the greater
the importation of foreign commodities is ; for
from thence arise his customs and imiiositions,
tliose necessary supports of the crown: and
therefore, in sooie sense, the king is the only
person truly concerned in this question ; for
this island supported its inhabitants in many
ages without any foreign trade at all, having
in it all thb^ necessary for the life of man.
* Terra suis contenta bonis, non indiga mer-
cis,' says the poet And truly, 1 think, if at
this day most of the East-India commodities
were absolutely prohibited, though it might be
injurious as to the pro6t of some few traders, it
woukl not be so to the general of the inhabi*
tantsof this realm. And therefore, as I have'
offered tliese few instances to prove the king
sboukl have such a prerogative ; in the next
eoe I come to shew, that the kmgs of £n^-
d have exercised this their prerogative la
all ages: and as the king has the iiowerof
restraint of the foreign trade, so he is only judge
when it is proper to use that power, which
seems plainly to be for the same reason. And
1 think Mr. Williams's remark of the difficulty
of this case, that it should necessitate the king
to call a parliament to assist him with power to
determine this question, is not to be passed by
without some oliservatton.
God be praised, it is in the king's power to
call and dissolve parliaments, when and how
he pleases ; and he is the only judge of these
Ardua Regui, that he should thmk fit to con-
sult with the parliament about. And Mr. Wil-
liams would do well to save himself the trouble
of advising the king of what things are fit for
him to consult with his parliament about, until
such time as he l»e thereunto called. Hut it
liath l)ecn too much practised at this and other
bars in Westminster-hall, of late years, to cap-
tivate the Lay-Gens, by lessening the power
of the king, and advancing, I had ahno-t said
the preros^ativu of tlic jMrople : and fVoai hence
comes the many mischiefs to the king's sub-
jects in parts abroad, by making the power
of the king tliought so inconniderablo, as
thougli he were a mere duke of Venice, being
alisidutely dependant upon his parliament.
Woukl it not oe mightily for the honour and
dignity of the crown of England, thiok yot th^t
■ oftl
~ Tbi
ii35] STATE TRIALS, 36 Charles 11. l6U.^The Grmi Case d/Mtmo^oiia: [S
*
I
I
I
I
ike cmiKTor of Fez m\d Morocco, or any prince I
of the remote parts of* the world, jihouUf be told,
Tbiit Mr. N^mdyS) one of the king of Great
Britain s subjects, caiuti into the eiDjtei'or's
territories against his prince '» consentf mod that
he bad no [lower to hiiMler him, unless he
would cjonsult with all lii^ nobles, and the
represeulaiives of all his common subjects, tn
assiflt therein F Would not the emperor beheyc
l^andvi to be the ifreater prince of the two?
Bui though such sort of declamations arc so
much for theiservice of the crown, and for the
honour of the kinfrdom, as they would have
It bc^Heved ; yet I thmk tltey have the ^ame
tendency of duty and s*-rv icct to the kinq-* with
tome other matters ihsit of Kite huve huppptipd
imoiigst u^, VIZ* 8orae have heen so rouceni-
od| as well ii>r the esiifcty and s^^cnrity of hi!»
fivaieKiy'fi sacred person^ and to make him for-
midahre to his rebethous suhiect«> al homet as
todesiwihal his j2;uurds niiylit be dischai-^ed,
beeaufie it hxiked asttyoucrh he desigiic<l to rule
byaaiandioGr army ; and la shew their ten-
derness eo his sacrcil fife, %\outd have him re-
moved friim the assisrtanee of l'tiI connscllor^
as they called them ; and put himself into the
hands of ussssvrnates, as thouq:h one murdered
f>rince were not sufficient to satisfy that piece
of state*policy m one and I he same ace.
And in order that he mitfht have ^lufficipnt
to support the necc*«itY, as mpU as the dig-
nity of a crown, which all *r<x»d subject^i are
zealous lor; some^ of late, have mdustn-
ously endeavoured to have prevented him from
bein^ aide to borrow any money upon the
credit of any part of his revenue, a privihw
that the mcanc iit of the pt^psons coiRcmcd in
tJiat ipiestion woulil Ihink themsetveti highly
injured to he debarred of.
J, \nm
but tb« ■
And herein 1 shall cotiteot mystJf i
much brevity as 1 can, only in prodttciiig" f
few of those* many instances, which were \
ffreat care and indnstry found out by Mr. ]
Attorney* aiid Mr. Solicitor ; und by ifiem *
learnedry and properly applied to the
question ,
1. Therefore it has l>eeti well obaervisil, that
the !^tapU"9, which were the common and
pubhc marts for all merchants Ui re»iirt la,
were firvt eroded by the kiitg*8 prt^roj^atiTe,
\% tiliout atiy art ol' parliament ; aa it doih plain*
ly appear by the Reveral acts '^f parti.imeiit
mentioned at the bar^ either I j, th«
places , or enlarjfi ng the com mo
pcrnutled to be brought to the .staph , tor i
mall time*«, when the Ktuplt: was H:ked ]
dominions of any other prince, that mo
done by leaffi»e, wliich none ran makf but t
kini;. To instancp one authority ffir all, tb€
Stat, 2 Ed. 3, cap, 9. expretaly sayn, * It it
* enacted. That the staples bcy^^ -^ *i^^ -Bca*,
* and on this side, ordained U\ iiaif
* pas^l^ \x.' Mr. Atlornfy firnj L - hritor
ciUid several nn^rds, nnd other actsof parfis*
ment, that allow thii» to be I he king^'s prennr'*
live iibfiolutely ; which I shalt ODiyinaine,tkry
havuii^ opened tlie jiarticuUrs at larg^, fix.
VicesuiM» E, 3, Pliic. l»arL Rolls Al>r. foL im
lilO. Ckiavo. E. a, num. 2l». 7T E, 3, cap. 1.
43 E. 3, c. 1, 47 E 3, N. t? Prim. tt. «. N.
9f^. with mnny more ; which did not only li-
cviihe merchants to repair to their aefNsI
staples, but prohibited them from carry foi^tbiiir
staple commodities) to »iny other j ' - - "ndUie
several acts of parliament mm i* ^^tW
staple, only iiifiicied ;ireater t«ni*.^,.*^ upw
tlie persons otfeodiny:^ more tbai| the kuif
by his prerogative did inflict ; btit
added to, or diminished any part of the power
of the crown ; llie truth* whereof wiA abw
These and the likeaiiempts, if not presented,
will refiderlhe kintr and h>s government low
•iii despicable in nil other parts of the world : la d her appear bv the consent of the pmrUmiait
and as for the instance between a denizen and plainly declareif in several statutes lbllowiiif>
« man naturalized, 1 think it mtVier makes viz. 2 H. 5.C.6. 2H. 6. C4. B H* 6, r. 17
ojfHJust, than for Mr. Williams's conclusion, an 27, by whichf and several other iustai
lo the main question. For though the king- both by Mr. Sohcitor and Mr. Attorney, }
cannot naturaJi/e a man, and thereby opvebim concei**© it does plainly apjiear, that the stal
inlurilable blood, as a natural-born subject, to of '2 Ed. 3, c. 9. Nono Ed. 3, c. 1, "^ decti
inherit lands ; yet he may make an alien a quarto^ Ed. 3^ c. ^. the Htat. of * deeimi
denizen ; and by ihat means he becomes to tpiinto* Ed. 3, mentioned in t^T
have as much privilege as any of the kin^^'s , plea, decimo 8 Ed. 3, c. 3. wli
natural suhjecis hath as to trade and commerce, , ant's counsel hove much iosiiu
which \h the only qucsUon now belbre us : and ' opening tlie liberty of trade only coneei
1 caunol help bmn^ of opinion, that tht«» king- | merchants of the staples ; and by the acu
dom \\';ts in greater regfard abroad, and the in- parliaments made relatinsr to tliat trade, '
habitants thereof more prosperous at home
when the prerogative of the crown was more ^
absolute tha'i now it is ; therefore it is our
duty as g:oc»d jndj^^es, as well as goad subjects,
10 endeavour to support it as much as we can '
by law And so t proceed to mention some
preceilents and authorities, whereby the kings
"all ag'es exei^ised this
of £n«;land have in
part ot their prerogative, of restraining', dis-
posing and ordering matters of commerce and
fereign trade, by royal licences, charters, and
particularly mentioned by' Mr. Atlomey, smd
now repealed.
And tlioug-h the pbM)e of the stanle, agwitt
as the commodities^ were aseeruined by i
parliament, yet the king granted to i
1 i cences to trail e else w h ere ; w 1 1 i '
is alluwetl of by actsof psrliam
aulhorities in our books : tor in*»utii<L<. , umo
many others, the slat. 6 U. 6, 'il» ^22 Ilea,
chap, 4. 13 Hen. 0» c,3. 57 U. 6, e. 1. 1 ll
7» fol 3, A. 16 Ed, 4, foL 3. /, 5 E, 4, 33,
And A8 the ktng^, before iboee
STATE TRIALS, 36 Chahlks If. l684.— !»<? E. L Cmnpnny r. Sand^i. {9M
m\
HrD.
mentioned, ordered the roerchandizes
itf tjir sta^de ; wa all other forcijorn tradtr not
A notii^ of hy acts of parliament, were
in Rnd aliJialutely disposed of by th^ kiog*s
fativc ; fur a^i my lord Coke, in liis com-
ii|w>n Wag", Chart, r, 30, does truly ob-
that by Mercntores there, only is niea^nt
aul-ttintn^rii ; ibr as I said, 1 do not
fhtd dmt any <d' tlie suhjects of this kiou^
mcddlet) in tbreifn^ trnile, in many yeare after
\br m^ikiti^ of thut act : tlie first instance 1
with/ijf in Malm's Lex Mercatoria, foL
of the society of inrrchanis, which is the
ndrenturers, made by a (jraut from
3» and wrre caUe*l tUe brotherbofjd of
-a-Bt-ckct of Canterbury; until the
-7, who confirmed their charter,
' their name to that of Merchant-
;, by which name they continued a
coTporation.
And that the king did shut and ofiea foreign
trade at his pleasure, by many iostajices men-
tioned by Mr. Attorney and Mr. Solicitor, does
£irlher appear, 33 H. 3, mem. 1, 2 E. 3, pars
•ecimda, inemb, 35, 3 H- 3, N. 33, Rolls Pre-
rofratiTe 170 and 214, before cited, primo H.
5, 41, deciino- octavo H. 6, N. 60, and the
HM. of 12 H. 7, c. 6, which 1 have cjitisefj to
W ie«rched. And in Plowden^it Commi'iitarii'^,
in ibe great esse of Mines Royal it is set down
as % rule, that ancient charters and grants of
the crown, aretb*' best evidences of the prero-
fUt/^ffe, PhiL and Mary erected the corpo-
iitfKUi of Russia merchants, hy charier, %vith
ap' • other;;, with the like conditions
willj I itjod in the charter at the har ;
and w^% afterwards appi-oved of in parliament
in 8 Eli^. and the foHeUuro mentioned in tiie
leHeri patent matle more effeclual. And as
Mr, Attorney did truly observe, that when
G«liJ8 was taken, and thereby the fftaples un*
•ellM, <|tieeii Ehxabeth ihou^ht, according^ to
the precedent of the Russia and other compa*
" s, it waji ino«t ad ^antageoufi for the carrying
lit' trade and foreign commerce, to erect
and corporations ; which was well ap
red of in thc»se timc^, and so has continued
since undisturbed, until this present ones-
; which \ shall more particularly insist
upon, when I come to discourse of the next head.
And h^rc hy the way, I shall only remem-
brr, tliaf there were many records and books
cited by the connsel at the bar, to prove the
itfliarance between alien enemies, and alien
ilBJut \ and how these intidek are in law
loolied upon as per{>etual enemies, and the
many cases tliat were cited about the Jews, and
others, J think will not be necessary to be
farther insisti-d upon ; fen- I conceive they do
not concern the question tljat is now before us.
For were not tlie charter now in question m
being, it would be worth while for Mr. Sandys
to consider, how far he might lie obnoxious to
punishment, for tradiofr with infidels, who are
"n law called * perpetni inimjci/ And therefore
ci»ncei*et it i» a» penal f<nr any of the kind's
-»^— ^ t|pg||g ifitti intidds, who are aheo
enemies, without a royal licence, as it is to
trade with aliens amies, contrary to a royal
prohibition. An*! I canuoi irotijfjcture how he
will avoid this rock, notwithstanding^ his pre-
tendud skill in navigation, without making use
of tills charter as a safe-conduct to him, hy
imphcation ; though he se<^ms here 5o much
to strugg;le against it ; and how tar that would
prevail ibr his benetit, may be al»o consideretf.
But as I said before,
4. The true question is, Whether this be %
good grant to the plaintifts, of a sole trade to
the Indies, were the inhabitants therfK)fChrif*
tians or infidels, exclusive of others ?
And therefore I nnjceed to the next step,
that tliough unbwiut ensroffsing, and motm^
|M)Hes, are prohibited by me laws of this, and
all other nations ; yet I do conceive, that the
charter now in question, of a sole trade exdu-
sive of others, is no such unlawful engrossing,
or monopoly, but is supported and encoura^ed^
as conducing to public benefit by the law/
practice, and usage of this and other countries.
And herein, by the way, though the word
Monopoly, or Lngrossing^fifenerafly spoken of
is odiousin the eye uf our law, yet some en-
grossings, and so ^nie monopolies, are allowed
of in our books *, and so I desire to be under*
stood, wlien I say a lawful or unlawful monO'
poly ^ or a lawful or unlawful engrosMng. And
iQ as much as this is the great, and as I think,
the only objectioji that either hath, or can bttf
made against the present charter, I shall be
the more particular in giving my opinion
tlierein, with the reasons and authorities that
liave induced me thereunto.
I premise only this, that in all those coun-
tries, where societies of trade arc erected by
the supreme power, exclusive of all others, ag
the case at the bar, monopolies are forbidden %
and are as severely punished by their laws, as
they can be by the comu\on and statute laws
of England, (viz*) in Holkud, Ciermauy^
France and Spain, &c.
And so wherever the civil law prevails, mo-
nopolies are punished with coofisca^tion of
goods^ and bantshment. C. de Ilklonopoliis eC
Cens. forens. part 1, fol. 49 r.
Now though monopolies are forbidden, yet
that cannot be unda^tood to be so universally
true, (as no general law can ever be) that it
should in no respect, and upon no occasion or
emergency whatsoever, atlmit of any excep*
tion or limitation.
The exceptions thereof may be such as these :
1, Though no private persons can have the
sole trade to themselves, by their own private
authority, yet this may be granted to a public
society, by the prerogiUive of the prince ; if,
^. It be upon good cau»e, and lor the public
advantage of the kingdom.
3. From the necessity of beginning and car-
rying on such trades and foreign commeixse,
which can Ue only done by companies and
soeielies;
4. Such companies and societies ought to be
eontiiiued &nd supported upou tlie oatoral
I
I
I
I
\
539J STATE TRIALS, SSChaklesII. l6Bi.^Tk€GftatCaieo/MbmopaBn: [540
equity and Jii8tiee» that no other pemms should
be periuitieil eiihpx to reap the profit/ or to eo-
danger the loss of what hath been begun, and
beeu carried on by them, with great hazard
ami expenoe.
Now in as much as foreign trade can nerer
be of advantage to this kingdom, except the
balance be kept equal between this and other
countries ; which can never he done, but by
keeping up to pro|M)rtionable rules for the re-
gulation thereor with the otlicr countries : and
because, as I said before, the municipal laws of
this realm seem too scanty for that purpose, I
will therefore first consider how this quebtion
stands, as to the law of nations ; and then how
it is considered by our law, producing autho-
rities in boUi to make good my assertion. And
because I thought the former more natural and
effectual for the decision of this question, made
me more inqiiisitive than otherwise 1 should
have been. Cujacius, lib. 16, Obser. 23, dis-
tinguishes inter ' Monopolia licita et illicita.'
' licitum Monopolium,* says be, ' est, si
* oertia personis vef quod potius est certo Col-
' Ic^io conceaserit Priiicc|)s ut ei soli jus sit
' vendende certc mercis ;' and therefore re-
citea a law of the emperors Tbeod<J8iu8 and^
Valentinian, by which certain governors of
commerce were appointed; * Edictali Lege
* HDcita, at nulli Mcrcatori nisi ad designate
< loea tem|KHribus pnestitutis ad ne^fotiationis
* SUB 'speciflt distrmhendas passim Uceret ac-
'cedere.'
CarpzoviuR, in his Decisions before-men-
tioned, lib. 3, Decis. 105, N, 13 and 14, makes
this no new case ; * £t certe (non est novum)
' modum commerciis (quie tamen liberrima
* esse debcnt) poni ex causa niniirum publicse
*' utiUtatis vel necessitatis, ex quo 31onopolia
* alias prohibita jure subtfistunt.
And again, ' £xemphi haud rara sunt iibi
* neceasiute et Kdi4:to principis Monopolia
* quandoque probari : Commercia ad certaa
< porsonas et loca restringi videmus.*
Idem, Decis. 4. N. 10. et N. 13. < Nimirum
* Exercitium ac permissio Mouopolioruni a
' Principis arbkrio de[>eudet,* &c. Scacca de
Commertriis, U. 7, 161. 301, N. 1 'j. * Hoc non
' procedit in MonopoHo, autoritale Principis
* sive Rcipub. contracto, quia sicul monopolia,
- priratu autoritate contracta Ueipub. sunt per-
* niciosa : Ita hcec quic Ijcgis Autoritate, e\
'justa contruhuntur. Causa Ueipub. valde
* utilia sunt.'
Grotius de J. R. ct P. lib. li, cap. 12, sect.
16. ' Mono(M>Iia uon omnia cum J ure uaturce
' pugnant : nam possunt intenlum a summa
* jiotestate perniittr, Justa di- causa el pretio.*
Up gives amongrst otliera tiiese two exam-
ples:
1. From the history of Joseph, wlun he was
vice-roy in Egypt j \s hich is, says he, an il-
lustrious iivstanee of this matter.
S. That undiT the Ilouiaiis, tlie Alcxan-
diians lia«l the sole trade of all Indian and
^thiopic commodilii s.
Ho Xhuanus, lib. 32, gives an inslanoe of a
grant from tlie French king, Ann. 1604, for
the sole trade into Canada, or New France ;
for which be gives tliis reason, * Ne gravis
* esset csrario ad sublerandos navigatioBit iUinc
* institutie sumptus.'
Which I conceive will go a great way in
supporting all such trading oompSniea as can-
not be begun but by a piltiic expeace.
C. de Monopoliia, the prohibition iaezpmtly
limited, * Nisi Privilegium vel alia oonaoetudo
* in utilitatem puUicam vergens reaistat.'
* Mercatura est res ijdifferens, in qna Ma-
* gistratus, vel in vetando vel penaittendo anan
* pro Commodo Keipub. potest interponere aa«
* toritatem.' Halmas. de Fmn. Trapesit. fd.
236. * Hoc solum permistum est Regi ut pant
< prohibere, ne aliia vendat salem.' Alciat. in
Q. inter publica 17, in Fin. F. de Veib. Sign.
as it is at this day practised in Franoe, Thuaa.
lib.
Sic in Sale Vendensi, Monop
licite ezero
Scacca de Meivat part. 4, N.
>polia eliam
hodie in lulia licite ezeroeri h snperiorm
* permissione.*
80.
* Sic in Rqiub. Lubecensi, certia i_
* Mercatoribus oh prcdictas ntionet jua co*
< qqendi sacchari, et salis spedali Priviigia
< ooncessum est' Marguard. lib. 4» c. 7* N. 89.
And then as to the usage :
< H«c est communisoma omniiimp aalb
* prorsus reluctante Doctorum aanlentia, qnod
*• jnra bujusmodi Emporalia et Regalia povant
* ac(|uiri non modo per Concessiooem eumni
*• Pnncipis, scd ctiam Consuetodioe el Ptm*
< scriptione.' Lesbius de Justitia, bb. 8. e. tt«
Dub. 21.
By the imperial laws commerce and traffic
have received several otlier limitations ; aome-
timefr the subjects of the empire baTa been
forbidden to trade to certain places, pavCicalarly
named ; and in general by otlier conaliliitioM,
forbidden to export coin, gokl, or arma, to aay
of the barbarous nations.
And that the law or customs of natioqa if soi,
the prnirtice does evince.
And tirst in (lermany, where the law pra-
liibiteth all muno|>olies ; yet see how tbe law
there stands in res)>ect of our case.
< ('irca Monopolia autem, qui:^ exerceator
* advfTsus Cives, obser^andum, non ease iltt<*
< * cituui, si non cuivis quodvis negotiatioiiii
< geuus exerccrc conceditur, sed illia duiiCaial
* qui ad idem cxercc^ndum juxta institute CiTi«
< talis sibi jus q uteri verunt, quemadiuoduoi m
' rebus pub. Kuropeis tecta qusedam pni-
* stitissc o|K)rtet eum, qui mercaloriura aut opU
*• fiC'Liim aliquot! toUerr vult.'
This as tu Coiiiorations.
As to trndiiig Societies thus :
* Sed et fieri pcitost ut a summa potestatefia-
* cietati mercatoruin indulgtatur certum gaoM
^ iMrrciuni ^^ certis loo is advehere, ezdosn ra-
' liipiiscujus privik's^ii concedendi variRpOHiHl
^ esse causw.
* 1. Nam Commercia qua ad loea i
* ma instituer«9itur, priusquam rite f
&4( 1 STATE TRIALS, 3(S Charles 11. JdSi.—Tfte E. L Company t. Sandys, [544
I rvfpiimnt eiitn^ittiH, & anc'ipiti ercntui
M ■ '» ftutUoriwus talium
f «n c«it* tie qtio*! ab
♦ furr
• V ! i»<''j privi-
i|ty»t ces-
_ ,__^.._.- ',...:!_, -^' '^ sne-
rtmm nidiori Mf commerdi
ajorcm ropiani incrftutn hoc
fM, m-riite «?c lot f\'ftudihuj» et
'III miorum
I* lor I rciiartum
»r^iaiibiu portioniLnis 'Ji'^irjf»«iili!i% I\»flen-
•i|M€ilr Jan? Nuliirfc k (Pentium, lib. 5* Ibl.
4 lf«nic)^ motbcnr iloes more at Tar^e dc-
h bai b«Mi ft qtteslian snnietiines delintcd,
»Wtiii I UH?»or»* V^ rntrrfHl jnlo by iSit* rians
j T^tSfiWiSDnf liitv ? * Uninpe quod
111 "I ^ *«c ferre viileturj ut
|r ^ i-mnnt confitderati fjua;
ip to voluor, Vi^tidaut.*
I i» yertinn notv made agBinst
Bat die uiAi* cr ^^iren was twofold, ami will
i«K bane to tli mease.
1. tV«t ihr i^'mperor ClmrlCT 4. hx^ giiren
aii ifarahitioo, und made it lowful by his
f. lliif ihfi^v harl conUnued in possesion of
thkmdnf »o' ^^^"' ***'t '^"'v the length of
iBp ftodlieT e^s consent) re-
i »n ilrjii L, , Curpzovius de
I, Clip, e, sett, 10.
u question, ruid otlier
I ftf Uke nature gmiilt'd by the kinga of
laanWf W-^tir<^ i bed with <
1. 1^ least ir js this so-
|iiilW(jr "ti was blate<1.
ItlMHtgli. (o the tnleM ot our
^Kieh A |rn*^<iii <.] iifcci ' ' ' : iln the
_ I of A Mta^Tipiion ; i f na-
[ ta^ Mill the i^racttrv f:<ajfitn«^
I ^\Uk «re <mh' ndn i tf^o, it i«
^laiip. • iWscni ... ...... — Itjngi tem-
fnrfr rfm Jegis obtlnel^ imo tolttt omne
*Pl»ot.ii|p<io tcmporm imcuemorialih, quep
" ' ** " e«i et fx ritioso etinm tiluJo
I et V ^ otnnesqu*? solemni^
^rinm , negfotio accewusse,
Wliir joitas, num. 10,
lespectum con-
el Cae^wirum appro-
rnntUL'iuuu jiri ' ' '^ u
' iluT . n. 50,
IvilJbrx. -"" one of the
vv i>»d of, go
I I'.i ".'■-■-, :■! ^ ^l-Lifld to Jgllp-
rthciu. i tiiid abof e mxtv
(fonie say dsi^hty) towns and cities tinited tbeit
stocks, making Lubeck, Brunswick, Dautxic,
*nd CoOen, the chief place* of their residence^
and so gteal was their trade and credit under
that constitution, that manv pnoctfs griMiteil
them large privileti^Gs, and ifiey kept courts by
their deiiuties and councils at Bergen.
Bv tile la^vss of Spain, all monojiolies are
forbfdden and under the same penalties ap-
pointed by the civil law : yet there al^o a right
may be acquired to a sole trade, by licence ob-
tained from the king'^ or by prescription.
Quinta partida Tit. 7. le**. ^. incnihris hoc
Commercium Mariltuium exclusis cieteris a<l
«0. anr: ' *: ,f^ uHa re se
* niagis > i vicie nostris
* diebuS) [^inio lUi vtiii [i;i ( unjbiiujU itiagnltudo
* ct felicitas, quam Narigationutn iu Indiai
* Orientates susciptarum coustantia et sucoessuSy
* ail quos ut ttmrio parceretur, societt^les in-
* stilute, Cfi at unique taodero, ut sub unatn bo*
* cietaieui oniiies coircnt, quod alioque experi-
* tnento conatitisset, Aromatnm pretia ab insu*
* laris oh cmptornm frcipientiam augeri, et cutn
* alii alils prtevertere, Pt lucrum ad ne aliorum
* damnoderivaresatagercnt, ubicoiico)*diamajc*
* hna est opuSj Bmulatlouum et dissidii i»emiui
* sparg^.'
1 come in the next place to tnake it a|ipesr»
that as the law of nations, and the practice of
all other countries, warrants the (ike g-ranls
and restrictions with the case,' at the bar ; so I
conceive this charter of sole trade to the
fndies, cxcludinjj othei^, is neither opposed by
the common law, or prohibited by any act of
|iarliament ; but is supported by Wh, as wilt
more evidently appear by the practice atid
constant usage in alt times.
Therefore, though ing-rossino^ be a crimt,
odious in the law, and punishable, yet all man-
ner of iDgtff!=isrn§r is not.
Therefore in tl\e case of foreitfo tradCp which
is only apphrable to tlie case at 3ie bar ; it wa«
resolved by all the judges of England, 3 InstiL
196. That merchants may buy bevond sea io
gro&s, and sell here again in gross also. I say*
that all monopolies are not unlmvful. Gene-
rally speakititr they are, and therefore, I will
admit the description of an unla^iful monopo-*
ly made by my lord Coke, 3 Instlt, 181.
A monopoly is an institution or allowance bj
the king, by hi^ grant, commission, or other-
wise, to any person or persons, bodies politic,
or corporate, of, or for the sole buying, selling,
making or using' any thing v whereby nny
persou or pergons, body poHtic or cornorate^
ai^ sought to be restrained of any freedom or
liberty ihey bad before, or hindtred in their
lawful titicfi;,
Nuw if thesuTtjeclsof England had not, be-
fore this grant, a free<loiu »md liberty to trade
to the Indies, agulnht tlic king'irojal pleasure,
the charter at the bar wiU be no mi^uopoly
within that rule.
Now that theyv had no t^uch liberty, lialli
been sufficiently proved by the several pro-
hibitions mentiQueU before^ and tlie mauf
1)43] Sf AT£ TRIALS, 36 Charles II. }6H.~3'he Great Cmt pf Mm^p9tm: [j
more instaoccs tlitn-eof cited by Mr. AUorucy
anil 3lr. 8i»licitor ; ojiit it would be very strange
that ilie king might prohibit ft»R'ij^uVre fWiiti
comiu^ here into Kn^rlaiid, and uot pruhibit lii^>
own bubjecls Irom gfouig- into toreign countries.
Aorl ii is not dunioil, but if the king should
prnclaim a uar \%\\U the Indians^ that then it
would bt* a prohibit ion to all his subje<'ts to
have any commerce n tth ihem ; nay, and he
int^ht cofitinui- that war as long as he pleases i
and by tliat means all hiii subjects would he as
well prevented of any of the commodities of
that cuunti'y ; and aUo of exportin^^ any of our
commodities ihit her. iSo that surely this char-
ter, with these restrietioru, is much better than
4 total CLX elusion ; and ihercfbre foreigii trade
U not like our home ii ade^ to which the word
monopolies is properly ap[»licable ; for that
cannot be totally excluded for any time, though
never so Bniall, oy any act of prerogative.
Object. Ay^ but^ say the detaHiant'» coui]'
»el, though Uie king cau by hia prerogative
prohibit 'jl\) trade to any country, upon such
great emergencies as war and nlagiie, &c. yet
to grant hliertj to some, and cjccjude others^
that makes the ^rant at the bar be thought a
monopoly. Which is still begging the question »
for if the king» by his prero^tive, have the
power of restraining and disposmg foreiij^i
inde, wbere acts of parliament have not iii«
lerposed ; as bv the precedents already cited I
COHCttive clearly he has, as inherent to his
**rowii \ therefore, as he may restrain all,
so he may restrain any part by the same parity
ofreftion.
If the king proclaims a war with any coun-
^1 ^hioh is a general proltibition of trade, and
louid order that John a Style, or a do/.en, or
Tiny greater number of his subjects^ ^c, and give
them instructions to treat for a peace^ and the
persons so appointed should carry ou a trade,
would bot Mr. liiandys, do you think, have
us much reason to murmur that he was none of
IllOfe ambassiidors, as he has now by being not
oomprized w ithin th^ charter P And would it
not be thought an arrogaticy and ^uciness in
him, to demand an account ofUie instruction
jfiven by the king to such ambassadors ? Or
dun»i he trade there till a peace were proclaimed
Willi that country r*
And the glust of that law says, *• lltefcatares
^ iKm taelaiit inter Monopoltum de re non ven*
* denda nisi pro certo pretio, vel de non excer-
* cendo oBicium nisi per eos recicpiatur offici-
* ale^ et socios : Fossunt tamen hccc facere
* cuuj concensu et scientia Regis et contra
■ facieutes pcrpetuo exulabunt, et eorum bona
* Regi applicantur. Ex privilegio ergo lic^is
* possunt simUiterel consuetudine vel prescnp-
* tionc, quia quod pnvilegio acqiiiritur^ etiam
* pra^criptione acquiri potest/
And there quotes ^ ubi dlcitur, quod potest
* concedi priTil^ium \ quod quissolus piscetur
* JA certa parte Slaris, et aliis |)otcst probiberi/
In France Monopolies are prohibited also,
* Sub pcena Confiscationis corporis ct buDorum
* indict.' Const. Fr. l, Art. 191.
:^<
I wilt
Notwithstanijing which, there i
several corporatiorks tor trude ;
but «wo, Anno, i6/,r, the Fp
a grant of the sole tisihery in li
a society y excluding others upou pain that 14
ierlopcrs BhaJI mcur the jieualty, *• tie Coofi
* cation des I'aisseuux ct Mercluuidt^es et
* dix miJle Livrcs d* Amende/ Aytz. toL^
|»ag. 207. And in tlie year IG64, the J
India Com|Kiny, by his declaration, wiib
tiXclustoD to all otlierit, hke our East- Id
Company, page 74, 75.
In the United l*rovine«s, the laws agi
raouopolies are the same, yet there alwayt
were sevei^ trading corporaVions excliisifc of
all others. 3 June 16t2], in the charier ofllie
Dutch West -India Company it in gT«al«t
thus : '* and in C4se any one shall go to^ or ne-
gotiate in any of the aforei»aid places granted
to thif Company, and without coii«e&t of tbe
said Company, it shall be upon paia and fi>r«
feiture of iiuch ship and goods, a» shaH b«
found to trade in those coasts and plaocfty wbicb
bring presently and on all sides, on the behilf
of the said Company, set ujion, taken, aaii
forfeited, shall be and remain to the use of tlie
said Company,*' Aytz. vol. 1. p« 62. sect. I.
And in case such ship^i or ^^^oods be sukt,
or fly into lands or havens, the nggers and part
owners thereof shall and may be distnuiicd
to the value of the said ship and goods.
That the aforesaid Company shall within tW
said limits make governors, officers of war Knd
justice i and for the*»ther necessary «crTitt»
lor the preservatioD of the places, and oiiia-
taining of good order, policy and justice, lad
the udvancement of their trade, ■ " i^iKiutl,
dispose and displace, and sub ^riii
their places, as they shall &id invit ^iUti« do
require.
At I ships coming to any p1»ce where tbe
Company have their garrison smd guremiiNDt
shall not' transp9rt thence any mea, goods, 1
money, without leave and consent of the coan
cil, upon the pais and ioHeiture oP six montl
wages, &c.
In the grant to tbe Dutch laJia Comptny ,
20 Mar. 1602, that no body of w hut quality gd
condition soever, shall for tne space of tweuty^f
one years pass Eastwards of the Cape of G««<t
Hope, uiion forfeiture of ships and goods, Aytt.
1 vol. fot, 157.
That the said Company may appNoint gx>vtf-
nors and officers of war and justice, and for
other necessary sen ices, for ttte preservAtioa
of their places and maintenance of good onler»
policy and justice,
Tlie said officers to take the oath of flupre*
macy to tlie slates general; and of tidHdfJ
as to what concerns trade and traffic, lot
Company.
A\\i\ ufterwards. the 9th of Sept. 160^,
Plaeart was [mblu»lied, thai nobody, '^
indirectly, shall pass or Inide be void tj
of fiood Hope, upon pain of dc*ath, auu \*>t\
feiture of their hhips or goods, which shall I
found to have doue or tQ do so. And Uio
oaiMH
wtliil
J45] STATE TRIALS, 36 Charles II. iCs^-^The E. L Company «. Sandys. lUiS
ihey sbonU absent theinsr>]?es out of the United
IVwinceK, yet tlic iienteDce shall go on, and be
4Hsraed and executed, with the present onnfis-
otioD and aeUing of their j^oods, actions, and
cfcdits.
Idem, pafB^ 158. And surely the Dutch
have been always by us esteemed as our g^nmt-
cit and must dangerous rivals in trade.
And as for the reason and necessity of es-
taUishioy this way of trading by companies, see
Ike judgment of Tbuanus, Jib. Hist. 124 and
\30t where making mention of the East- Indies,
be saitli thus: * Diversis itineribus hnjus
* Segionis Incolarumque Ingeniiscognitis tanta
'fie^uentia it privatis hoK; ipsa Navigatio et
'•Cominercium exercitum fuit, ut alter alteruni
*• fen ivisset perditum. Ad obviandum itaqiie
' kme malo visum fiiit. An. 1602. quibusdani
*biijos NavigatMinis mercatoribus, pnupo-
' JeiUim ordinum consensu corf urn constitucre
'eorpoii, ciijus tantummmlo, &c.'
Ik Indians being infidels arc by law cs-
iBUBul common enemies ; aiul the opinion of
■J kvd Coke in Michelbomt'^s case, I think,
Ihewfcre, to be law, notwithstanding the ob-
JKlisiiitiiat have been made against il, which
Moeef our books warrant ; now the king by
hiidwter makes the plaintitis as it were bis
■■bHHufcMV to concert a peace, atid Mr. Hsui-
dytHnnurs becaiuie he is not one of them.
. The kiag may grant a fair or market to
wyadatct he has; but because he grants
te pavwge to some of his suljects, have
4^ imaaj just ground of complaint? be-
CHK dbe kii^ may pardon every offender,
lit vil' Boi pardon any highwayman now
■■ licwgatp, must those gaol-birdd, thci-e-
f^ think thentselres injured in their liberty
^ ymperty ? because the kmg gpranted to his
li»B or Hull, that no other ships should he
tkn fineigbted for iiireign parts, till the ships
rflhat ton n were first freighteil ; as he did,
KilCIum. 41 £. 3, memb. 25. did London,
Anct, or any other town of trade complain ?
V«U any of these gentlemen that contend ft)r
tti liberty of trade, adventure with their for-
kaci to j\lgi«rr8, and %vlien they are seized
y by the Als^nos, tell them we are Eng-
iSiBeD, and we have by the common law of
bbnd, and many statutfs of our kingdom,
«ficlisii|i|»oi-k the liberty of the subject, a friHi-
dvi to traile wherever wc pka&c i Or would
ail they rather say, we have a pass from the
k^l of' Kn;;laud,'and rely u|ion that, which
fMimes Ireutics, leagues,*^ and truces between
llbeei; and in case that will not prevail,
As khig will see them ri^htcil ? And in the
Amv that is now before us, there in a parti-
ng realiiction and limitation oi' trade to any
pbee in amity with our king. Now as the
Mrtttt usage and practice of other countries
'Vmanli surli socii:ties as these, ti) docs ouvs
Vk;:Fer, as I said, the Hans tiHvns were some
'^ fcil enfporations of trade that we read of
Mn; flowaa it thougbt the interest of
-jhM to nipport and encourage them.
i5B% H. Sp gavo then gr^ut privileges, and
the Still-yards for their residence, which th«r
enjoyed near 300 years, niana<riiig their traife
by an aldermau and counsel, called The Guild
of the Hans, ingrossinjx the trade of England
for grain, cable:*, masts, pitch, tar, 6ce. and
under that colour tbe Jacobsons at this day
claim several privileges.
It is obseFve<l by many historians, tliat the
most flourishing trades nave been begun by
united stocks and policies.
In this kingdom a [»ateiit was first obtaiued
for the ei'ecting the staple, from E. 3, before
any act of parliamf^nt intermeddled iu that
trade, and pn>ccetletl under several regniation^
till the time of queen Eli/idicth. In the book
I cited bi>forc, Malyii's Lex Mcrcatoria, fol,
150. says. This company of iiicrcbants are
above 400 years standiiii^,'as that lKH>k r(Tkon«
IVoui 1248,* ulien ibc said mercliaiits obt^ned
privileges of John duke of Brabant, and wito
eddied the brothorbood of St. Thomas liecket of
Canterbury : which wore contirniiHl hy king K.
:^ H. 4, H. .'», H. (», E. 4,H.3, 11. 7, who
gave them the name of ^lerchant- Adventurers ;
and sfter him confirmed by H. 8, E. 6, <l. M.
Q. Eliz. and king Jauics, not without many
enemies and opposers; especially, says ihut ,
book, of late taxing them to l)c monopolies, an^
unprofitable to the commonwealth, being that
all our cloths are not dressed and dyed in Eng-
land ; yet it still prevailed, as being thougut
for the public good.
And it is observable, that queen Elizabeth
did not only confirm what was done by her
predecessors, but augmented and greatly en-
»r£fed the privileges of this ancient cimiiumy %
ana confirmed the charter of the Muscovj
company, granted by Philip and Mary ; and set
up severai other companies, as that of Exeter,
mentioned at the bar; tiie Eastrliifiia i*om»
pany, and the Levant nntl the Eastland com-
pany. And ahhoiigh that ancient end bene-
ficial company of staplers was oiicii oppo9e<l by
particular persons, and <;omplainefl of :is a mo-
nopoly intrenching upon the liberty of <Iio sub-
ject, in several purliauuMits. in the time of J 1 . 4,
"H.7, E. 6, and queen 31piy: yet all partiet
being beard, these complaints wrre fully an-
swere«1, and the Company *s priviicgvs ratified
and enlarufed.
Again, in queen ElizalK'thNtime, the clothiers
having piY^vuilrd airainst the coin|>any, the
ch>thing countries were almost quickly ruip<-d,
and rediierdto thai fvtre.mity, that in «M' Eii/.
the lords of ihet'oinicii s»ent lor the njei.l'ri-« ut"
that Company , desn-lnif iheiu to ivassuiuc ilii'ir
priviU»gi's, and clieariiilly to prortH-'d in their
socii'ty ; with assi'.vanec of lII ei»:mtFHJt!irc riid
assistance liom the i:(>\irrMii"nt. Aim' in too
reiurnof king .lames, alW s.'V<i-:il iiiRMii»ju rs
had enilcavoureil to desfoy pie riunpuny.the
king published his pmolain^ttwin t<i irstore tlie
Company to its ancient |)ri\ iic'^'es.
So did kiiriy Charles i, 7'.h Dec. 1G34, re-
citing;, * AVhtTias \w lia\«: tukvn into our
*y|>riucely considiMUtiitn tlu* inunifotd benefits
' that redound to tins kins^doiu -, and fiudiiif^
iJ N
I
547] STATE TttULS, 36 CiiiaLts U. ifiS^^Hr Gr«re Oiaf ^MmopoHm:
* h»vf oiueh order nd gorcrtiiiMnl iflrill ccm-
'4uc« ia Uio Lurrc^se ati«l atlv«^eiiioitl of the
pn
lit fit I With the ^drka
I lite Coinpaxiyi and |*ixihi*
tlil*&u^ .. upon tlteir privil^esi u|)Ofi
ptin ol' sucli pimidhmeuts &s the SUir-ckMHilbisr
sbtU inflict.
Hinc<e Ibis, it may be \vor<h consltlemtioa,
whetho' the breaking of this Com|mnY, ha«
not occfufjutiei] the ^raiki th cay of our ira*lc jd
voui : it heiuof u^itfftiblc to reason, ihntas im
liiw ttui t»c tfVeoturtl witho4it courts of jiistict?
Ix> put lUoiii in execution; uor a straij''/''^y
imiy t^ubsist viiiiumtdi^riptirtc; ma !iti*a^tj;ltng
inkle iimtiii^LHt by [>articii1&r |»ei'M>ns, Hhibl
mfciy one t»ti(\es (o advauce his own privafe
lAieiest, wiil niio the trade in gi^ucrMl, e-s|ie-
daliy such a hnjcardous ti^de as thU to the
£a»t- ludics, uhich already hiuh biH^n so
chari^eable, aud cati otily he prcventeil by the
coiiiiiict aud ;^yTt?riuneut of a public society :
aud surely to look atler atid sfttUj the^c iiiiil-
ten?, |n V ' !iiu«fs to the care and prudence
©four .
Now i ..;,,t,i ^.i->crvOt how the practice has
been botii in tpieen Elizabeth's timc^ aod ever
sinO^t iiod that althoH'I' u\:\uv rhui *n ; r.l^f
oursut ilie bar have i
ever rlemandtiiiby a J3' >_
UaU, or an much as ubJL-ctod ti^^uinst, save only
that ol" the Canary pnlcnt, till this cause at
the bar: and Uiough s^-e:^ atteuint>i havr*
keen made both in purltaiuoiU, anil hi tlie
coutts at W»siniin<it( L-hiill, n^Ainut mmiopo-
lit» ; ytt this charter, and *»lhers ot the like
o«ilure« wei* never looked upnn uadcr that
c;haracter. Vot instance,
J- A chillier was grantcil 2 Eli^, to the
iMCii-haiits i}i' EalUt for the f^iv tra/le to
France, CAclUclipr' u]\ nl\>rc ui. i rli ..;-. ni' t>x.
cter not of that
turbtd, ami pn , ^ ^ , ;
tiou that wiiM made nmnnst it in {>ariianieiJt.
Kiiic: E«h>anl t3, and kiii^ l*hdip and iilary,
hrivHJL^ -r;tif«;l a rlMrh i' bkc OQIH to lh«»
Jin.,p;i , , nv| 'isi\ 1; Ui( u . .nJtiiiiicd ift jteacf. till
i' t lixabi'th; w,hen the p^itr-
^ ol' that patent, thoii^'hl
in ill rni,;,i]u a \\i\U nU the c
iina^'^nitilitc; atid wa« an far fro.^i
||^ono|^oty, thiU it t(S*> v : *
fore ihnt lime had i
by it; m^'l -^•••.i-
oilier pt'ii.t'
b\ the itMi' , ,1
there wtrti some initTinperi upuu iiuit tnide in
those days, and Iwwl btcu Vinhle ii- tl.r fo;
'itnre«» mflicLed by thusu
tre f liPtT^f^-r f ir**^'! tf»
iliat I
pot t^:^r ri*1 ol J
kin linblc to ;
nil, as to t fjt r.
tiueen El/. ,
M era! ciiaiici^ oi ilic hke uaUirCt which [auuted
the p^nisal of her attocp^ and «olJ
learned men in our profiMon* In the
nio^ of her rtign tr»y lord chief-haron W
wt« solicitor, air Oilbert f>errard atloi
^eneml, and passed (hose patents botli
Uinsia and heeler companies: ^S ¥AM
lord
tht^ 1
:»caaantijorily
t^ her rei^ni. gfniutetl
Ik
of
Pophain was
• Inr E^ertoo sol>
vv such charters were mst* gi'antied
tl th€ bar. And then my lord Coki
• I, and roy I'^r-* ^ »->.-*' i^^pen
raJ, *vho:r cf&i
ni. . „ i , , .itjie, that in i.-^ ,. _-:'J fl-
of the qnecn, the parliament look uottoe of
many patents of cnono}>ulj4*a, aa it apf»carR by
the book cried at the bar ; Townsend's Cal*
hclions, QU and '^46. The parliament aeeioed
to be as! hic:ii aii ev*ii' tliey h ere in any •g* W-
fore, and particularly were incensed* by tliiia
putentD. A list of all vttarti brought tn Ky Mr.
Secivtary Cecil, that were thou|i^t|rrieviHU^
prrjndicml to it- ' ' ' '.ini^ti
there were a c^i I i'^
whom tliat of iunv i» ' ^1»«-
ujent, nor n«>ne olficr, < lay
charier sf ranted to corpon- "i
tinned undislnrJicd. And
:i!!M's-: fi» oh-^t r\ r. that Oui! , ...
I in narliameot, but re-
in Wesftn '
estmhiHtetvliail ^ Ibe
great reason tiiat gutded that judg^tiieoi ita<i,
the restraint thai whk put upon the hoine tr^;
and fto it appears in More's Reports, 072. Aod
thii*; stood these charters; the I hina ehift«r,
the Turkey ci>nfipany, the Bai^
the Guinea company, ail charts
1 ' ' ' jiiained io iiuueaun
vie.
!'%
,
r rrfking JamttiM
lirki
i^ a geiM-ml tid
'.<'..i.'
nee, to all tb»|
nt l»e done in n
!iy tlic preaiH
thai act ; uor *.
Hi call those dun
nioiioj»tt!itfs, ur
ii •)• tntdc to any «
]n%rhi of the uoild, hut leaves all cUarlfl
fornVn tffide.
save to !8|>ain, Portugal
l-r.,.-
in ns they ilid before. All
1 U..-
^ cap. 9t there is notice u
« be charter gmr.^ * 1
of the 6ofte iTi -^
uas thong'ht tu if^- njmiM
:\s of that stntute K. 3, >tJ
smiJ Ciiu
i'neir priTtlr^esJ
ii,'s, or III . - ■
rod unto them |l
chnrttfi^ Hiiy iiiuti; contained in
! ?\'A 10 ilie contrury notwit
Ilia act ol^ parhaineut i oksertel
L tii : ■ ■' , ■", ■ ' .
charter ; ^
elnwve nl ik: jr>, wjji! lof mo jin nu
wc.ll id that eity,
IE That the kttcrt [laletit weic
599] 9rkTETtilAlS,36CnktLLfi9U.-i6S4.^TTie E.L Company ff.Sgniya. fSSO
hwy lad did not want the assistance of :«n act ' that the pfiriiament then thought a nenerat
tf ptrinmeiil to 8U|iport them ; for that act ; savinj^ sutiicient to support those chaners that
diet BOt eenfirm those lettera patent, but pro- , ivcrc then in beinsr, to coqjorattons for trade
fides ottly, that the itatuteS Jac. should not and merchandize'; but oiade particuiAr pro-
W general trords be thoug^ht to impeach or vi«»os for the savinir of patents for inland com*
iub«>ytliem. Now had the parliament thought i mo<Utip3, viz. such as salt, gunpowder, ord*
the charter voiil or inflrm, they mijs^ht have i nance, shot, and the like.
ttfrmed or atrengtliened it, as the Russia j Ho that this company was in full possession
fiinCwM; but ttey concluded, that had it of their privileLje of sole trade, exclusive of
not been for the statute of Tcrtiu, the charter \ others, all king: James's and kinji^ Charles Ist'ii
vumd to all intents and purposes : and this . time, till ail the prero^tivcs of the crown were
I tue 10 be full authority in the case at the ; invaded, and the crowneii head too was taken
Iv. Bat to proceed, tlie Greenland patent ; olf by traitors and rebels. Hut the providence
ftrtole iSshiiiff, exclusive of others, gran ced by { of Gml having^ restored us our kiuuf, and re-
reDJ
3.
I ESzabeth, is held good, Rolls, Part. 5,
. 3. Taylors of I Ipswich's case, and the case
•fthe abbot of Westminster, is agreed to be
Inr; ID Darcy'a case, More, 673, by Mr.
1 1 think need the advice, I shall read
lie teij words of the book: he that hews
ilife Ins bandsy chips will fall into bis eyes ;
' It ^ Migestatem scnitatur principis, oppri-
' mttar sptadore ejus.'
h hag Jameses time, many j^nts, like
4Hii were made, but particularly m 7 Juc. the
fMtmoted to the East- India Company by
^eeei KBnbetli, was, by tlie ail vice of her
~ ",11 wdl as by my lord Hobart, then
^felleral, and sir Francis Bacon, soli-
■I, confirmed and allowed with the
\ as the charter at the bar ; and so
Inndisturbedand uninterrupted all king
!*• reign, and was not thought to be any
vhil touched or aimed at by the proviso in the
tfme, 43 EKz. cap. 1, sect. 9, that act oidy
paaCbg aft the monopoly |Kitenis comnlained
mkwmz parliament of 43 of the queen, which
1 neafioncri before. Then comes the statute
•■neh lonsted on hy the defendant's counsel,
eHNmlv called the statute of monfipolics,
te. tl Jac. cap. 3, which certuinly doth not
um tflbet the case atthe bar. For first, this
llvier m not a general grant for the sole buy-
i^jiiMing, making, using of any thing within
* 'Ti, which, are the very wordn of* the
' doea-thia charter give the East- India
lioenoe or toleration to do, use, or
le uiy thing against the tenor or purport
^9af kw or statute, which are the only things
pRndcd against by that act. But the parlia-
^■ft tiMn aeemeu to take the same general
to «f all such charters as this at the bar, as
fc fvKament did in 5 Jac. of that particular
AHtarof Esceter ; and tlierefbre, to the end
ItttfMia words in the begimiing of this act of
imiglit not Ifc Uionght to exten<i to
rporations for trade, there is a
feineo,aeet 9, that that act should not extend
wMf cwpoiatiitus, companies, or fellowships,
AflLMMtodlbr the maintaiuancc, enlarnfeinent,
tl fiiirw any trade or merchamii/e, Itut
DM as they were before that act,
on: and it is obeerrable,
invested him with all his undoubted prerotfa-
tives, as wdl as restored us to our ancient riorhts
and privilesncs, and scarce, as 1 may say, warm
in his throne, but amongst the other consi-
derations that he had ibr the pidilic weal of his
subjects, he considers the public advantage of
this kingdom arising by tradi^ and amongst
them, one ot'his first thoughts arc ii\cd upon
this Company. For 3d of April, 160t. he by
his letters patent taking notice of the charters
of queen Elizabeth, 'and king James, granted
to the East- India Company, and of the inju-
ries that were done to them by the late tron*
bles ; witli the advice of his council, and ap-
tirobation of Mr. Attorney Palmer, and my
ord-chancellor Finch, he granted and con-
iirmiid to them all their nrivilirjres. The 27th
of May, in the Wlh of his i-cign, lord-chan-
cellor Finch being attorney, jmmI my lord-
keei>er, that now is, Mdicitor, lie confirms this
charter; and gi-auts to the Easit- India Com-
pany other privileges, by aiH}t her charter in tho
UHih vear of his reign ; at which time tl»e
l^nl-iCeeper was atlornry, and sir ^Villiam
Jones, solicitor : he ronfirms the former, and
grants more privilrgcs: and in the 25th year
of hi»j reign, by the charter now in questi(»n,
ItasMcd with the approbation of tho pn.'sent
attorney and <iolicit(»r, men of groat ability in
their professions, and of whom, were they not
present, 1 should say much more ; the char-
ter to this company was confirmetl with a<ldi-
lionai privileges.
Nor has this charter pav-rd only the appro-
bation of his niaiesty and council, since his
happy i-estoratiim, hut the parliuaicnt lias
likewi'^c taken notice of it; the statute 14
Car. 'J, cap. 14, takes notice of it to be of great
advantage to the piddic. The stat. of the 29th
of this king for poll-money, taxes thrm with
twenty shillings for every huniired poiinil in
stock. In the great case between Skinner and
the Kast-lndiaCompany, the House <»f Com-
mons defended them, even to an eruiHion be-
tween tlie two iiouscs.
Mr. Jenks and some other linnrn-drapcBS
and trailesnicn of London, t-.iWv.i^ the advan-
tage of the heats that too fre«iucnily [H>Kses9ed
the House of Commons of liile years, espe-
cially against the |H)int of prenigative, did
f iiiously attack ihe East- India t.'ouipany. but
without any success - and this company was
never assaulted in Westminster-Hall till this
551] STATE TRIAI^, 36 Charles II. i684.--ITbGfrf«r<CiM«o/^imi?p^ [SS*
cause at the bar. 1 cannot Iielp therefore this
olisei-vatiou, that as the king oy his charter
1607, takes notice, that the cluirtt.*rs grauted by
qpecu EUzabeth and kinnr James remained
uninterrupted till the late rebellion ; so the
iaterlojiers a^inst the kins^'s prerogative in
this particolar, and the horrid conspirators
against the king^s lite in this last hellish con-
wiracy, tirst appeared in Westminster- Uall
aliout the same time.
As to the ol^outions I have not yet given
answer to, 1 tiiiuk ihey arc hut few : my lord
Coke!8 opinion, cited by Mr. Pollexfen, 2 lust.
510, where my lord observes new thincrs,
which with fair pretences prove hurtful to tlie
commonwealth ; and amongst them reckons,
that new corporations trading into fureign parts
and at home, which under the fair pretences
of order and government, in conclusion tend
to the liindi'unce ot' trade and traffic, and in
the oud produce monopolies, docs not at all
concern the c;iiic ai the bar. For this charier
that hath continued i'or 100 years without
any intuniptlon till of late, can neither be
tiMuight a new corporation or hindrance of
U'ade ; and ^ir Kd\%ard CoLc, when he was
attortiey general, and past this charter, was
309 learned i:i tli;j lau', a;<» he was when he
published that book, and wii>< turned out of '
beuig chief-jubtiee, did not think this charter
needed that caution.
As to the case of the Canary patent I)etween
Iforn and Ivy, that cauuot atfect the case at
the bar.
I. For tii'st, thejudgineatlu that case was
pven u^;on the point (»f pleading, and not U}M>n
thevalidiiy of the paicnt.
II. That pattni \; a> iu pei feet opiK»sition to
the statute, ;> Jac. thai opened a free trade to
Spain, and tJjereforo could not be restrained by
the king's letters pu^-cut, but there is no such
objcelion to our ease.
The counsel that argi:c(l for the defendant
seemed to allow liie charters to the Virginia,
Turky, and Eastland Companies, which are ex-
clusive of otheis, to be good ; because they
are mauii«jed by a rei;uiatiou, and not by a
joint-st<ick, V. liioh sureiy cim make no dirter-
cuce : fur it is a <;rant oi'a sole tnule to them,
•ixdufeiveofotliers, iis at:ll as the case at the
lar. An»l it is as hard io get jnio the Tnrky
Company, as ii i;; into tl.is ; and may be more
cliar:;e;il>ic : lur \ uu lamiot be a member of
the Turky ionip*.Jiy, but you nuist be a free-
reserved to himself a power to destroy and
alter tte whole charter, or any part thereof,
so as to put it into a way of regtilatioD instead ot'
a joint-stock, in such manner as be shall in his
great wisdom think tit ; therefore it becomes
us in duty and modesty to wait till we receire "
his further royal pleasure therein. And whereas
it was objected at the bar, because the king -
cannot lay any imposition upon foreign trade,
therefore he cannot restrain it :
1 do not know to what end that objection was
made, because it does not affect the question it
the bar ; but lest it may obtain tbe eflect, tbtt
I presume w&s aimed at, I think it is not amiw
to say, that even at this day there is much more
may be said in the maintenance of the king's
prerogative in Westminster- Hall, in that case,
than can be offered against his iirerugative in
this. But in as much as that and several otlwr
objections against the charter proceeded from
an uureasonaMe, as well as uiiinannerly mis-
trust they have of the crown, 1 cannot out re-
member that his sacretl majesty was not so
misli-u&tful of them. For he since his restau-
ration has bestowed u|M>n his subjects more
than all his preilefM^ssoro, put them tUl together,
since the co»<picst, ever did. Nay, he in a
n^mont frank Iv bestowed upon us more than
ever he <lesircslie should bo trusted with againy
for by his act of indemnity he bestowed upon
Ids subjects their li\es, hl»erties and estates,
which were all justly and legally forfeited to
him by tlie late rebellion ; the consideratioa
whereof will pn.'vent all fears and jealousies,
and promote iu all loyal hearts a firm retola«
ti<ni to sacrifice their lives and fortunes, so
freely bestoweil upon us by him, to maintain
the crown and just prero^jatives thereof; so
that it ma^ have a ]>er{Kitual continuance in that
r(»yal family, in a luwtul buccession ; which I
heartily pra^ may be so long as the sun and
nuMMi endures.
From wiiat has Ix'cn said, I hope it doth
plaiidy appear that since the law of this land,
and the law of nature and nations, allow the
power of making com|)anies to manage tra£Bc,
exclusive to all others to be io the prince, that
this is reckoned to be ' inter Jura Rej^ia;*
that no act of parliament d^es restrain this pre*
rogative ; that the practice of all £urope bis
been accordingly ; that particularly such com-
panies have been enacted in )*]ngland, and those
companies have l»een in (piiet possession of
their privileges for such a nunitier of years ^
man of tno city oi' LtMiilon ; and makes you I that they have passed the approbation of'^many
liable to all the great oiliccs of charge in thai
government. liut u froedom of ihc Last- J ndia
Company may Im* pw:\lj:isod at a much easier
rate ; the mem bus of tisc East- India Com-
p uiy uro as visible as tl-ase of the Turky. And
thu'igli it was said, the K:u>t- India Company
vert- sonietimes invisible, yet, wt-ve theTur!*y
(Nnn^tany inTLried with so luany interlojK'rs as
Ihc i Cast India Company Imve, they wuuld
not ancvai' l;u ^^lorious and splendid as they
now do, i*ud as 1 heartily wish they may long
>:ontiuuc. Dut the king ky 4us charter has
learned men ; that they have been thought tor
tbe public advanuiijfc of the nation, by so many
langs and [irinces, with the advice ^of their
council, both in and out of parliament ; that all
statutes anil autlioi-itit s of law that we can meet
with in o::r Looks Mvm it, :ind uone thatl cai]
nit'»*t \wih oppose it.
That the Knst- India company have soleljP
run the ha;car«l, antt Ihh- n ai great expences.
In <liscoveriug places.
Erecting forts, and keeping Cones,
tfettliug faptor>cS|
553] STATE TRIALS, 30 Charles 11. l6S4i.^The E. I. Company v. Sanit/s. [554
And making 1em<pies and treaties abroad ;
It would be against natural justice and
c^oity, (which lio municipal law can take away)
Mr mm to reap t)ie benefit and advantage of
i&tbis:
Especially since all this has been occasioned
bf sn act of the public, and by the just prero-
ffldn of the crown, under which they claim.
8o that DOW, supposing the matter had been
dooblfiil at the beginniug (as yet the contrary is
endent), yet after so m^uy years undisputed
aid mriDtemipted prerogative of the king, and
the pot ■■■on of the companies pursuant thero-
mi; and yet the laws having always been
opfD to any sulgects wiio conceived themselves
mred ; that speech which Josepbus records of
ng Agrippa, to those Jews who aiitcr many
ynii endeavoured to recover their lost pretence,
■ij be applied to these clamorous interlo-
pn:
* Intempertimm est nunc libertatem concu-
*pioere, olim ne amitteretur certatum opor-
' IHL Non amantes libertatis discendi estis, sed
'nUili cootumaces.*
And so the Romans answered Antiochus (to
Aev the iniustioe of his demands), * That he
'Rfvred those cities which his preilecessors
'fw 80 many years had never enjoyed.'
Aidqaeeo £lizabeth pleaded against the king
cf DcBBark, for the rights of fishing upon the
nei-
nor
! any thing ibr it ; and thcre-
Ar eoMladed it to be unjust. Cambd. EUz.
Mk aui. 1600.
jfotkati oonchide the first, and, as I con-
cme the only point in this case, that lettei*s
fiM which gave licence and liberty to the
iWotift to exercise their solo trade to the
Mws, within the limits of their grant, e\-
dnvf of all others, is a cfood grant in law.
2. I ilo conceive, that tne ddbndant trading
tedbe Indies, contrary to this charter, may be
luhed by information at the suit of' the
Bi( ; and that this action by the plaintifis is
iki well brought ; hut in as much as I have
^^* ' so lon;r upon the first poiut, I
csHli rf Norway and New-Isbiud, That i
tfaer kb great-grandfather, ^prandfather,
Albv, hid exacted any thing tor it ; and thi
than the grantee of a fair, market, or any othe*^
franchise.
S. The aotion is brought, and gronndcti upon
the grant of the sole an? entire trade ; which,
as I conceive is a franchise the king may
gprant, and is like the case of new inventions ^
upon which letters patent actions are brought
by every day's experience ; and the prohibiting
clause is added, only to mi:kc the thing more
notorious : and that interlopers, in case they
sliould be pro«ecute<l at the kind's suit, should
be more inexcusable. And until you can ima-
gine there boas many East- India Companies as
there are commoners and school -masters in
England, Mary's case. Coke 9. can never be
thought an objection. As to the objection in
the h Rep. B8. Rolls Ahridg. part t. p. 100.
Darcy's case, that admitting the grant or dis-
pensation to Darc^r had been good, tor the sole
importing of foreign cards : yet that beinc
only a dispensation to the stat. of Ed. 4. and
did only exclude Darcy from the penalty of
that act, he could not maintain the action :
but if in case that grant had vested an interest,
as our grant at the bar docs, he might have
brought an action, as my lord Rolls says in
the next ]>aragraph, may be collected out of
Darcy's case.
The case upon patents of new inventions,
are full authorities in the case at the bar : and
so is that case of the abbot of Wcstmii.ster,
wherein the grant of the market for thirty days,
exclusive of others, is particularly set forth in
the action . And the Salisbury man that brought
cloth to London, and sold the same contrary
ti that charter, is prosecuti^l in an adion of
trespass upon the case, at the suit of the abbot ;
and the writ concluiies, (supposing the grant
good) * In nostri cronteinptuiii ct pronlicti Abba-
* tisgra\c damnum ac Vv. cllibeiiatum suarum
» pitedictaruin Uisionem nianift^tam ;' which
is an authority full as to this point.
Upon the whole matUT, I am of the same
opinion with my brfrlhcrs ; and do conceive,
that that grant to the pbiiititTs of the sole trade
to the Indies, exclusive uf others, is a good
M trem^ upon your patience but a few i grant, and that the action is will uiought
*«ditotnis.
t. Tberetbrr I ronreive, the plaintiff need And therefore let the Plalntifi* take
M lilcdge anv special damage, no more ' Judgment.
hi^
STATE TRIALS, 36 Chailis II. i6&^,^The Lady ttfi Trial
313. The Lady Iw's Trial, for great Part of Shadwell, in the
County of Middlesex, Die Martis 3 Junii, a, i>. 16*84. Terj
Triru 36 Chaules IL B. K, Before the Lord Cliief Justic
Jeffuevs.*
Slam 3tassam, Plaintiff; r. Dame TlieoUa&la
Ivy, D^c'tidant.
_ _"HIS day this cause came to be trietl at tbe
tmr of the Court of Kinj^'s Beuch, by a sjiecial
jury of the cohnty of M id'JIesc^x ; whose ounics
fbllow: Sir R^Jfinald Forstcr, hurt, sir John
Cutler, ItL and bart. sir Gt"ldai*d Nelthoip,
hurt, sir ^licbael Heneag^e, knt. sir William
Guliilon, knt. sir Richanl Down ton, kot. Rich*
mil Rivnifn, Ralph Bucknall, Thomas Aus-
tin^ Joseph Dawson, Thoma* Cleve,* Hichanl
Whili', esquires.
Who being c^uttteil,the Record was read to
therm by the clerk of the papens, in English ;
tnd t»pene<l by Mr. Holloway, for the plnintifl'.
8erj. Sfnit^cr, Blay it pl^u^e your lordship,
and you gentlemen of the jiivT» 1 am of coun-
sel iu this case for (he plaintiff; and the ques^-
lion will bc% whether the It^^or or the plaintiff
hath a good title to tlie teneoientfi in qjiea^tion ;
♦ " Jefferies," says Mr, Fox, '* wan a man
entirely a^rtieable to the temper and huitahle
to the purposes of tlie present govemment'
£ihat ot Janie^ the second.] " He wa« thought
not to be very learned in his profession ; but
what mi^^ht *l«e v^antiDg in knowledtre, he
made up in positivcness', and intlecd whatever
luiirht be the difiicnltle'^ lu questions be-
ti^etn one subject and awoiher, the fashion-
able rloctime w bich prev&iled at that time, of
•opfKirtiu^ the kiog^s prero^'^itive in its full
€Vtenl^ and without restiiction or litQitaiion,
rendered^ to such as espou^ it, all that
branch of law, which h called constitu-
tkiual, extremely easy and simple. He was
ac submi^ive and uie-au to those abo?e
Imn, as he was haughty aud insolent to
those who were ill any degnree iu hiji power ;
and if in his own ooAduct ho did not exhibit a
Tery nice regard for morality, or even for
decency, he never failtd to aniniadrert
upon, and to punish the mofst slight deviation
in others, with the utmost se verity, capeciaUy
if they were persons tvhom lie suspected
to be no favourites of the court," Hist, of the
Reign of James 2., ch. 2*
Burnet had before said, Own Times, vol, 1.
p. 5^7* ** All people \\ere appreheniiiTe of very
black dcsig^nit v^hen they saw Jefferies made
Ltjrd Chief Juslice, who was scaudalunsly
Yieinug, and wa^ drunk every duyt besides a
drui;kerkiiei»s of fury in his temper that looked
like enthusiasm. He did aoL consider the de-
cencies of his post : nor did be so much as af-
fect to iieem impartial as became a judge, but
rim out upon all occaeioiu iota deciamationx
which are aliout three or four hundrt^d I
meats near RadclitR?, ia Shadwefl parish ;
the ground thereof is, say we, the atii:tent io.'
heritance of the diurcli of 8t- Pad'^, wlafi
have hatl the possession tficreof for foi^r or fi?e
hundred years f , We siiall prove leojc* duwa
for some hundreds of years, till we come to thit
made to the lessor of the pbtntiff ; under wliflni
we claim. We will be-j ! clKtletse
of dean Stillingflt-ft, 30 ', upon tiip
surrender of the lease mnd* ny ut-iiu Sanrmft,
now lord archbishop of Cantcroury.
Swear JcoflVcy WiHaii f which was dOTie;| it
is a chuich-lease, but yet be is a witness to it/ '
The Lease of 30Seiit, 1^73, waa read^
Serj. Siringtr. (Shewing to him
deed). Did you see that d^ sealed aod 4a-
livereil?
WUlan. Yes, Sir.
An Indenture quadripartite made the 23itk
that did not become thebar^ much lr«s
bench. H« was ix^i learned it. " i
and his eloquettce, Ihou^ vii
yet was neiLncr correct nor agret3si»fc.
Mr. Barrington, in a Note to hia OlMffa-
tions on 4 Hen. 7, observes that bishop Biiiiicl
** is generally very accurate witli ng«rd ta
points of thiii sort" [legial history,] *^* and il ii
not improbable that his tiistory was rwlicdbj
his great patron sir Harbottle Gritnstotie, who
wasMaslerofthe Rotls.^'
This conjecture cannot be true of any part
of Burnet's History of the reig^nsof Jamea Id,
king WdJiaiD, or queen Aiuie, for CiintNtijm'
died about Christmas tt>d4, at the >
see 1 Own Times, 597.] His beiii_
chaplain to sir Harbottle must have j
him to the acquaintance of the grt^
of tlie time : in his btslory be occ^^uouall^
gives us their characters. In the trial now
before us Jefferies displays considerable acute -
ne:ss, accompanied by his usual in^lence and
coarseness. There is a story that baving
commenced the profession of the law io the
unsettled tiines bctwceu the death of Cliarlea
the First and the Restoration of Chaiiee ibe
8ecund, Jefferies bad never been r^uladf',
called to the bar.
f ** The slate of the question being, Wheil
the seven acres in 8 hn dwell, was part of th(
ancient inheritance of the dean of St. Faufa
whom Mr, Ncale was lesfiec^ and w) now
of the |d»iniiff; or part ol ^ ir,..;n,r m^^i
that hail been drained by ooe ^ and
at^er sold to the Htepkins^^ un! :^ lU tkC
lady Ivy did claim/' Former iMlii.
»7] STATE TRIALS, $6 CHAHtES II. l6S4.*>r great Pari of ShadmlL [fi
lUrch, im% 01 Car; f, between Thomas
Att. Gen, (Sir Ruberl Sawyer.) We idtuii
ibeissigtimem.
Serj^S/MUjircr. Tlieii wc ihull prove llie landa
ta oesooii were alwa^rs held of the dean of
Aii. Om* Ay do» shew that these land* in
lyoMlion were su, if you can*
L C. X (Sir G. Jeffreys). I would not in-
upt you, gwiilemen, pray po your own
lay; hut if I mistake m>t/y mi h:id as good
^ ' with 5 Ed, a. as you did last lime, as 1
illfcr-, I Lave nol mdned my bt>ok I had
, fcere : 1 foar we Iiavc not overmuch lime
I iraste : we %[\^\\ want liioc at the latter end
CF- t>terefore pray come dasc to the
^*e.
_ . We will shew it, if they re-
'they kufiw it well enongl».
An, OcJi. ISUew what you can,
^T}. Sfnnger. In 5 H, 8. the dean of PnuVs,
|C«4kt. \^nst9 to nne John UaiL
L C. /. But it ifi 5 i>t^ £d. 6. I Oak for.
^ejj. Stringer, 23 Feb, 5 Ed. (5. dt^n May
iiili aaake a lease to Jimn Halt, and IVIarceUus
I HftU. Th*?n dtan Fecknara, 10 Dec. a and 3
f WL and Mar. in consideration of a surrender
•♦' thut lease, lets another lease to !\larctllus
liiU; aud so it continued fill Slay, 16r.U, and
I thmiiiD Donne tnaile a lt?ase ihv three lives :
LflpOQ the surrender of that in IGM^ dean
T made a lease to Moor; and in 1G40,
anollier lease to Winterhurn, which
tid to Mr. Neale, nud so roaie to the
' the plaintiff. First reail this hook.
S^ Ctn. W tiat book is it, Mr. Seqeant ?
L C. J. Ay, tell US tvhat it is; open it he-
ld it.
4ds.] ' A tenement with a crater*
I i'ertiHcntiu*
, J. What is it you read there ?
_. _ " ^ - - f.fwik that belongs to
ike d- Paul's.
J L. L, .'. />..... .,.,„^ ,s it? JIow do you
I trot* il ta belong to the dean and chapter of
^Vfrken Mr, Sj}€nrer was called, !>ut could not
^BadiYy come in hy reason of the r:ro^Y d. 3Ir.
^^brtcr was svvoni.)
^BSrrj. Stringtr. Mr. Porter, what aay you to
^^ Purirr, 8in<3ethe iH^sri^ning of this suit, this
heck WHS found auiou^ the wittings of the
ileMi atKl rliapter of P:iul'».
jiit^ Oxn, How long- agro» Sh", upon your
rti T^ Porter. About a year flfjfo.
JL. C /. *rhat is but u slovenly acconnl of
1i i lMt^.t !>. this.
It is phiin, my lord, it is not
:«: on pUrjM>8«*.
L, L\ X It 1$ plain, thai in this !tKn]>ery ag-e
' liTe iii« it \s vtry easy to make a book look
"* ^yfiU wuutd have it.
stringer, Wc will ffo oa 10 th» lease
to IkUrcdJui Hall*
(Then Mr. 5^encrr cam e in and wiw sworn,]
Mr. Willi^mt* Pray, Sir^ when first saw you
that hook ? '
Spencer. Seven years ago,
AtLGen, Where, Sir?
Spencer . Among: ihe evidences of the <
and chapter of Puura.
L, C. J. What is it you would reiid in itf
An entire tease, or what P
Serj. Stringer, 'Tis a ahort note of a lease.
Clerk reads.] •A tcnemeul with a water*!
mill — "■
i. C. J. See if the hook ha\'e any title.
Clcik, No, ray lord*
L. C. J. Let me see it. rWhicli waa done.]
Serj. Stringer, The 23d of Feb. 5 Edw. 6.-
X. C. J, You, 8|>eiicer, have you s«en in
any of the books an entry of any lease made hi
Dean Collet ? '
Sprncer, I havenot observedthati havei
any lease of Bean CoUet.
X. C. X Have you seen any leaae made l^
Dean Collet, in the time of 'Henry 8, ahofl
any of the churches lands ? I nsk you the ques
tion, l>ecause I observe here in this j>«per, in
two places here b the word * Dean Collet/t
writ with another hand than that of the hook j
but Nowell is writ with the same hand a^ tie
other. And so Nowell seems to have been put
for ijie mt^k^r of this lease, as besn^ put upun
the top; ^hcn in truth he \%^^ nrft (i*-<!ii till
long after, Ujion your oath name
wa?i that lease let that is here s-
Spi;uccr. I know not, my lord; that b 1
book I saw then.
X* C X U this letse to your hook
leasies ?
Alt* Gen, Pi^y, GentleToen , y ou did protluce
hetbre your original deeil of purchase, w here is
it uow ?
Mr. IVilUams, That book was produced an4
read at the first trial,
L. C,J, What first trial? Not that la
Term.
Mr. Wiiiitimi, It wftsin the cotui at thi
time.
X, C. X I believe not, you are rnislfikcn
that ; for 1 have bi-ou^ht lh£; notes I took the
and 1 find no £uch thing* here.
At I, GtTi, They produced then the first puf^
uhasc^of the dean > ^
Lj C X Is diere any lease of Henry 6th*ll
time in that book ?
Spencer. 1 do not remember any lease
Hciiry ftth^s time of this land ; hut f havei
that iJook ever since I belonged to the
business.
X. C. X. Have you not a hook of the sue
cession of your tk*us.^ When was CoUflP'
Dean ?
Mr. Wiliifimt, In 1505.
L. C, X When wflH Nowell Dean?
Mr. Wittwms. lu l^dO,
X. C. X Then 1 asaure yDU this book
grandly suf^jicrous*
AitlOcn, They threaten us with forgerie
&5Sf] STATE TRIALS, 36 Charles IL 1684.— 7%tf Lady lnjf$ TKc^ [fiflC
and I know not what ; I believe it will be foand
•n Mr. Neale*s side.
X. C. J. If in case you come and produce a
bode, and ^^ou value ^ourselves upon the an-
tiquity of ft, as an evidenca that this land did
belong to the Dean and Chapter, and leased by
them, 5 H. 8, and in that b<K>k Nowell is writ-
ten by the same hand as the rest of the book,
as Dean then ; but because you find Collet was
then dean, and Nowell not till threescore years
after, Nowell is turned by another hand to Col-
let ; it draws a great suspicion certainly upon
your book, as set up for a puqiose.
Air. Williams, It is true, my lord, if we di<l
that, it were something; but we find an old
book an^ngf the evidences of the church,
and we produce it af> such ; we have not al-
tered it, therefore it cannot be done for our pur-
• pose.
L. C. /. Who knows who did it ? But done
it is.
Alt, Gen, And your title is under the dean
and chapter of Paul's.
L, C. J. Who keeps the evidences that be-
long to the dean and chapter of Paul's?
Spencer, .They are kept in the chapter-
house.
L, C,J, I am persuaded there may be an
ancient book, and this may be such an one ; but
it looks a little untoward in this particular.
Vou, Spencer, did you look upon those two par-
ticular passages?
. Spencer, No ; I did not observe it
Serj. Stringer, My lord, our next lease in
the book recites one made by Collet.
Alt. Gen. Come, upon your .oath ; did not
Air. Baron, or Mr. Neale,'comc to search in
this book ?Spencer. Yes, tboy diil.
.. 8erj. Ltitwich. How long* ago was that ?
Spencer. As to Mr. Baron or Mr. Nealc them •
selves, I did nc\c.- see them come to search ;
but some for thirn liave.
Mr. ]VilUu/u6. Do YOU believe tho book was
thus as it is no«v, iiefore you cumc at tirst
to it?
Scrj. Lutu'ich, You say they did not conu'
to search, what (!id t!ic*y come for then, to
drink ?
Spencer. They ha\«.' ri>nie to llu'ofiiccr, Viv.
Porter, but I uem- saw lUciii smroh.
Mr. Williams, lint I ask you a;^'ain, was it
so when you found it fii-st ;'
Spencer. I believe it wus, I know of no al-
teration.
Seij. Sirinifcr. lint to put it out of doubt,
we have this scaiiid If^se, which docs recite
this lease of CoIlct*s.
Mr. North. Nov, r.iy I'lnl, wc have anotlun- ,
piece of evidence tliat will forfify that lK}ok to >
be true, as to ihe fouiiihilioii "fit ; that such a |
loas^ was then made a^ iIk; l):H»k sa\ s : loi- we ;
have a kind of particular, or ('ataloguc or ovi- |
dences of the dian and cii.iptci-. Il is uii an- j
cient writing. And in this llnfix; is mention I
particularly made cf a Uixsv iiuidi: iu 6 H. <{. j
Prav, Sir. look upr>ii llsiit. (;nd i^\\c uu accoiuU
4>fitl
Soeneer. I have seen this among the rest
of the evidences of the dean and chuter oi
P^'s.
Alt. Geh, How lon^ ago ?
Spencer. I cannot directly tdk.
Air. Follexfen, How long do you think, opon
your oath ?^ Spencer. Two years ago. .
Att. Gen, That is since this contest.
L. C. J. Ay, tliat is a little too lately for an
ancient writing.
Serj. Lutwkh, *Did you see it bofiire Mr
Neale or Mr. Baron onfercd a search there.
Spencer. I cannot say particularly I did : 1
have seen this pa]ier
All. Gen. Paper, man ? It is a parchment,
prythee mind what thou sayst : How long is
it since yon first saw that parchment ?
Spencer. I believe I have seen it this sefen
years ; but not that I can swear to hare taken
any particular notice of it.
Alt. Gen. Where did you see it first, upon
your oath ?
Spencer, Among the rest of the deeds tad
eviclences that belong to the dean and chapter
of Paul's.
Alt. Gen. Upon what occasion did you take
take notice of it first?
Spencer, Upon searching among the writ*
ings.
^ Att, Gen. Who did search witli vou at that
time, upon your oath ?^Spencer, Mr. Porter.
L. C. J. Read it.
Att, Gen. Was it delivered to Mr. Nctle
before it was brought hitlier ?
Spencer. It is brought here now among the
dean's other writings, we. never use to deliver
any <>nt.
CVe/V^reada;.] This is dated *' 2 Eli/. 1559.
Books andpther writings appertaining.*'
Serj. Slrineer, Now %ve will read the lease
to Marccllusllall; wherein this is redted to
Ikivi* boon made.
(The lease in tlio book was read, dated 23
Feb. 5 Kd. (3, ioi fivc-and-lorty years at \0L
rent.)
Serj. Si ringer, Thui the ncj&t lease is it
'i auif 3 Phil, and Mar. [Which was read.]
10th Doc. '2 and 3 IMiil. and Mar. from deal
Krckiiani to 31arcclhis Hall lor ninety yean
iVoni Michaelmas bdbrc.
Atf. a en. There is a licence to alter the mi1l|
which wo shall prove he utWr wards did.
Scrj. Sfnit;;cr. Your lordship ulisepres bcie
were grounds and several houses at this time
h.'tt, wiih the iiiiil and ponds, and ditches tura-
ccive ihe watiT. A iter this, Marcellus Hall
ossigncil V) .Adiiaii .Moor; he in the year
1618, de\iseih it to Lis wife Mary M«»er; aai
in l(j30, hhii ^urrl?lidt rs, and hath a \ie\f l«aat
for lives.
Att, Gen. Shew your assignments, Mr. Set*
jeunt, from 3Iarcelhis Hall.
Serj. Stringer. That we caimot do, nor Vfti
we ; li>r we are not to derive our title that wayi
but the church title is ours. We will slie^.
yuu dean Donne's lease to Mary Moor, npM
Ji'jr sunoiidcr.
i61] STATE TKIALS, 36 Charles II. l684.— >r great Part of Shadwell. [562
[Which Letse, dated 14 May, 1630. 6 Car. 1.
for thrae Ufea, at 10/. 6cc. was reud.]
8eij. Strineer. Then Mary Moor, six years
after, surreiufera tliis lease, anil takes a new
Iciie for three Ufcs in I>can Winiieif -s time, at
10/. a year rent, aiid 40s. increase.
[Which Lease dated 5 Aug. 1636. 6 Car. 1,
was read.]
Tktn another l..ease dutc<1 .5 March, 1640,
16Car. l,bv dcau ^\ inocfl'to ^3allluel|Whitwick
nlJohn Hintcrliarn, at 10/. the ancient rent,
40i. faeibre increased, and 4/. more now in-
creased.
Seij. Strifiger. Tims fhr it stood upon leases
fir Urea : tlii« \esav continued till 1669, till Mr.
Node bought this land, and then liu reii<'wed
afimn die now archbishop, then d-.*an San-
cnA, who raised the rent to HOi. during the
ifeof Preok, who was the sui-viviug life, and
to 100/. aOer.
[Which Lease, dated 12 July, «1 Car. 2,
1669, was read.]
8ei}. Stri/ificr. \Vc have hrouf^ht it home
MV, my loni, to ilie lessor of the plaintifl':
6r we have sUaw n this lease was surrendered
todeu Sciltinf^rncot; and thereupon he made
tleneiD Gan^nl and Cratford, which we have
pRan account ufliefore. And so we have
Aeviaiurcessinn of leases from tlie church,
tenOodd venrs.
LCJ. the last lease Is at the rent of 240/.
«jeir»Ithiuk.
faj. Stringer, Yes, my lord.
fiStfj. MattuuriL Ha\e you done, gentlemen ?
fierj. Strinj:ir. Ws, ive have, till you give
Bftrther occa*-'Ion, brutlier.
fieg. Matfnard. Tlicn may it please your
ff hnl3hip,andyou{^entleuien of the jury. I aiu
M rfeoonsel in this rause for the deffmlunt, my
I h^ fry. The plaintiffs have ifivcn you u
MKofetidencc ihv a title; but the truth of it
iiiU that they say uill not make a cmiclusinn
Wh as they would ha\-e from their premises :
&raD that they have proved, is, that the dtiius
tf Bui's, successively om* af^T another, hii\e
■ie leases. Tliey did in the bcji^innin;^ tell
fM,they had bad thislaiid hundre<is of years :
M what have they had ? and m hat leases
kifetlii»y made? But only a mill, a bakehouse, I
ifevogb of lead, and all houses, lands meadows |
■4 fasturrs thereto beU>ng[in<c. We do not
4ay but tliat they are to have a mill ; their !
hware also, even the new ones do mostly j
Hnr the track and woitls tliat tvcre used in |
{■B Hary and IK-ury the eighth's times. ■
■there is the truth oVour case: That the I
^aod chajiter hail a mill, we ajEprce ; nay, i
■w than that, we agree that they have
teacn.•s that lie on tlie North side of
high -way ; and ahw that they have
Vkrp«Gelofland,calfcdtheL;y'nches. That
kbanr be nodentood, we now crave leave
I
to the court vA the jury.
Serj. Stringer, And we desire ours may 1m
seen tooi.
Just. WUh^ns. Aye, deliver in your mapa,
this is the only fit place for them. (Which
was done on both sides.)
Serj. Matfnard. Then, my lord, I will goon.
We agree, i say, they had a mill, uliich is
now taken down and nut in another place :
we shall shew theiu wnere it did stand, and
that was no part of the land now in question.
The jury liave seen tlie place, and I hope hav«
had a satisiactory view oi' it. There was
once a mill standmg, and thei-e was once a
pond, but that mill and pond do stand else-
whei-e. The land in question, we say, was
anciently mai-sh ground, and subject to the
overflowing of the water, and it is so to this day.
In II. Qth's time, it was, by one Vanderdelf, a ,
Dutch mun, drained. This by act ot parlia- '
nif-nt, iUchard Hill was made owner of, and he
conveyed it to ^tcpldus, who v/as the defcn-
dunrs suiccstor, and whose heir she is. And
the hounduint'S are uct dowu in that, and the
siiLst qui-nt conveyances, which cannot possibly
stand \\ ith those that their mill is said to stand
in. We shall shew l.y several reconls the
queen had a title to it by a conveyance in way
of mortgage- toiler-; and this ut\erwards was
conveyed back again to the ancestor of my
lady fvy. We yield they hati a mill, and they
have increa.sc<! the rent sutliricnily upon it,
not to need other men's land. They hava
hnuses built upon it. 1 know not indeed how
much, hut I think it is near l,fH)0/. ayeartliot
it\iclds to tiicm. If then we can demon-
strati I ciy shew you where our ground is, and
tviici I cticirs is, and if we affirm our title by
roiii.ils and good oonveyaucx's ; then by a pre-
tence to a miri, I hope they shall not griuil us,
or -Uike awa}' all our Innd.
Alt, ijin. My lord, and gentlemen of the
jury, 1 crave leave to answer the evidence that
iias b(^'n ufiven, before I enter upon our title.
They have spent a ^rcat deal of time to derive
tloun a title to the dean and chapter of Pauls,
to a mill, a huke-hduse, and some; little ground
thereto Jjclonuiug. And truly, as ^\i. Serjeant
Siivs, no man e\er questioned the dean and
chapter fur their mill, and bake-house, ami
leaden trough. But the tiling in question is,
seven acres and an half oi land, which in the
memory of man was marsh- ground ; if you
observed it. Caeiitlemcn, upon the view how it
li( s, you know the Nortii iNnind is the dean's
Lynches, the South hound is the Thames Wall«
the West bound Foxe's-lane, and the Kast
bound is the hilly ground that Ls calle«l Cock-
hill. And we sity as to all this lanil, it is none
of the dean ami chapter's, nor ever did pass,
or was enjoyed by this lease; but we shall
shew you it was under another lease, i must
observe, that it is very strange «|M)n their own
evidence, that a mill, cum Fcrtinaitiis, should
pass se^'en acres of ground ; and a mill tliat
was demolished so long a^o as in queen Mary's
time, (for so we shall plainly ihew you it was)
20 .
I
I
568J STATE 1 KIAL5, 36 C« a bles U. I M4^Thi Lad^ tp/i Tn4t,
and llMrt tbeie tutids, couUiiningr ^ couaidenihle
« Tweoiie, ihould not have a survev tikea of
tUeiu, or 0 botiudirj miufo of the isnd, that
they ttiiglu know What was theirs, and ivhat
their neighbours* For yom lordship and the
jury may ohaerYc, in all the leases and convey -
amoes dun-n to this timef in Dean CoUet's t*3ase,
Mill iHiward, there wnn nothing mentioned but
^ tntU with the nppurtenanctfS, or a tenement
wHli the ajjpurtenance^. But they haTe not one
fixed boiuidary of their hinds ; and rt^alty it
Otftnol lie presumed the dean and chapter should
he se ignorant, BesiU«*s, in the ancienl lease
tlial Uiey produced of Ed. 6iWs timCf there was
« co^eDaul to pay theijuit^reni, as for lands
hoiden of the inaTior of Stepney . And we diil
ex|M!Ct that they would have brought »ome of
liie tMi iind recurdii of that manor ; agd out of
sonsesurtreVt there remmniaif, would have gireu
a particular tesiimonv 'jf what lands heloug" lo
Ibe disan, and wliAt 'Ao not But in truth, we
A^ this i» properly mnrsh-land ; for that wil
St your qwcHtioD, tfentkun^ii, tb»t
tfentkun^ii
try> I believT, at last ; «l>i *
dcres, thus huumled on Fox
the Thames, .South ; on iht miu
Cock-hill, or Mill-ditch, LIjks!
you are lo
' .a iiC'Teu
est ; *Mt
ivay, called
auJ on iUc
I and L-bupler^s Lynohc?^ North, hemarsli-
1 ? The dran and chaptei- Imve ^iven
I of some h-asf's, wliich upon the siii-
t«ider» wcr*^ dcUvcrcd up to tlu'^it ; but t!
ire oone pftHJueed^ they only read the em
in then* booLi. Now we shail demonstrate i Uvi
tbia mill of thein^ ^vrs mi owrsbnt tuiU ; f^
there
Hrhicb
the ihinlpai-cel, and that only cancemi
eocjuire of, whetlier tltese seven acre* I
half be parcel of that ? And that is ite^fcrtbed M
the record to be a tenement, called Denkl-
hills, which is a bak^hous^i with a mil), and
the leaden trough, the appurtenances of the
mill, at the rent of Sts. and 4d, Tb»r are ill
the parcels named of the dean a»d chaptrr*^
lands. And at the last trial xvf ^ ^m*
duccd the d*jed of purchase, w li ww
coofcyed to the dean, which I uuiuk wa» ia
H. 3ril'9 time, it yielded but 3t, a y<tr in ib^
whoh% and now in tin- - * * 't»rnc to 90001 a
year, without this gv* xrhifjb ibeir i»*
tend no%?, if 'i*'*^ ' >", i . .. ^ up. Atidao*
as to Ibis \r «< y cau claim ia but a mill,
and in the i lh* it is a house where tb«
mill stood, and diat we shall shew bv reeordfl
where it stood ; and it is wid to Iw called Der*
rick-hills, and situate od the Eact endof tha
marsh now in question* And to gii % Hff
tarthrr we fiball shew that tliif waa altereil ia
qtieen Mary*^ tiaie ; for in b E, 4, the book
wherein their kase 1% makes mruil ''
mill QA btandiug; then in 10 Hfi*
Ph. and M. there is ?i kind of
uc ghull by our evidt-utje ui>
hjU la Juini Carler, «>ur-muker. *4'het«
thtit place, at ttiia day, lauds and h
mention tnadc of n leaden tvoug^h, ( jncld the dcau anti chapter im Imnd*^
is the only propf'r instrunit^nt of an a-year, distint?! from the lA*Tiohe« aiid
ii»tawliot--mill ThtrHbvc we wdl first settle [ North grodnd of IIn
(beCBOse they tliPmstlvos will not) what i^
ibeiiBI and then we do u lit not to cfive you i^a*
tia&ction tltat this wub never uny of theirs, but
^e undoubted mhentauce of th(*8tepkins : and
not a' toot of it bplofij^s u> any other man li* lu*^.
But further, since they nilf not, we shall pro-
duce a piece of e>idcnce» it hlch indeed we miii<t
thank 3Ir. Neole lur ; for he blublumr it alHuii
flm he hail a survey of the manor of Stepner,
fHiifih wootd do our work, put im tipon seared-
iRir there for it ; and we have it ht*ra; atid
mre you will hud a p&riicnbr of all the dean'.^
lands, waOkit 3df. and Ad, quit- rent. And the
partjcttiof* are thus de^riljcd in that book,
(which shews that there was a leneuifiit tlial
ftood by the mrll^ iindlbat paid aquit-teiit, and
Ibe other lands came under that qui* -rent)
TwfAty acres, caUeil Sbadwcll field, that lieth
•n the U<:«rth-side of lliiteUnrhig^h-way, known
at this day j ond all tl)i« piece of ground, of
twenty acrus, is built upon and improved;
which was one fiarl of Che (and that came under
4 <|uit-rei]t, but not pretetuled to'be any part of
this. The; next is live aerea called the Lynches i
and it ap^remrs by therMmt! lo be bnt five acres,
iBtl a<» it w meMred no w . HaiclifT h t^ - way
fneltt OD the hipof the hrll, aiKl this is called the
* y«Kh-wmy, notifuftwved onr built upon ? «nd
■Hiy aboiM tecAnfiiig^la our records, mid
phem] by acres tu aa acre. Theu eotites
a verr |fm>d impr
bake IjourMf/dud a lrft<i> '
fbf ilie wuier. Now In
they recite tliat ibr - '
keif ping up ; and a'
them by tlu* lease, .
null down the mill, it tva;* piitk^d down
bfiill upon, and H came to ylc!] t!iom lOO^J
year, as it doth at this day . *A i
rail witnesiscs to m>t forth, in
in the East end of Cock-hiJI, in ihe nytii
mem, there was found thfe Hfjor gf the t "
And there are those liyUv^ tliat cati ;
it So we shall shew they aJ^ ftslih
^vr'ntfl;' pool; they ha^e sutficient to
their deed of purchase ; and iilt the et
that hath been ^ven you, will appeft'
be only to entertam the court whh an Arii«M|
nothin^f ; and to take Up th** ~
shall go yet a step fUrlher, au
all peradventure, that this land , u^
n>arsh- ground • and the odier mde
mit, that if it be morsb-mund, the
ehapter have nothing^ to do with it,, ner^l
tenued to a tbot of it, nor d«Tih any tittle of tS
evidence mention m
ke will admit it b:
|rf(»nud We Itave nothing to do \ntlt iL '^t
that, rttttlenieu, toii^ gMl qtttftiOB il, W^-
ther this be martn-^otmd, or not? Aa^f^itm^
Wm
^
IfS] SrArETmkli.t^CumhE^JLi6U^Mgriuirarto/Sl$i^dmlL [566
fete*
^Uieili^n Will W »lioi»ltbe these koaes, 10 ^ewed antl #¥l»Qded mM ^ill^
ib»r
«, if oo ||iif!«tioP| nor »» r^ tvus ui all ilic
lilrl: Hjid It
(V llf so to
jui> VI hu Imre seen
irMli-^rtiiitid, Miiii the
- " |*iiive
c^Mimiisbiori of 8Cf»ei», hail n survey t^Kcn o4'
it. Vl'iv
4S
|.Tt
1, ivhw iiiiii liruined it,
lipve nnr f:n!r; anJ
I hinn
1 p?ir-
anrr
d^ be iitwi tuiicu this iov!j^
f^ykiam, 3C4|i N^iv, '/ hdc) 3 Plitl.
Ml dnn&ir tM* UntJ in ipir^iou
IV
I jvasn.- ill
iliai for :i4
tlit^ Ukiin.
jf the l«uds JQ
he iKHiniis they
aiiM iiuH uJii» iU UJiie,
So the tmWet hud nokv
i
iiib«(ai4
^ the
Hufl
tcwsF tVom
and i^lurVi
U^ RichaVci
•flinll •iht^w thut
hard
Jcihu Mild
t he-
I in of
UUt^uU:ki4udtng
. ud*T all thcit
t*^Uar!* iin; oveHluwii)« 1 think lh<iti you V^itt
auike III* donht, Hhtthfirlhisbeour knd w oO»
And to |irfic«;ed iu this order that I bare o»en-
rd, M *" will Hrat shewr yovi 4he surfcy. Ttierc
Hii J I lbrLfot'»lKAit tJie 11 ^cr^
-r. What is it you t^ first,
H'\r r
L* C. X What do you begin Brilb, Jlr. At-
torney ?
Alt, Grn. Your lanbhij* observe* tl»oy «hi
n lea»e tVoiii deno r^kn^H* thr liUh &
2 and a of Ph, ami M.N e atnd
Dec. in tbesamey^ar, Mre^hai rn<HiHii»
Haltf by tea^ to Cnrter, buu^ tt Mpuu iW ra^
sidevf the tudk
i^.CX 1 took the notes th« la^t time ^T
)our evidence, and it l>ej^ii iu 11, 8tl«'?i tuup.
vl/^. Gom. My Jord, nbeu we ' <ir
title, we shttll g-o op in the same '•«
difl ebeti ; hut now we are oid} shc^> m^ wur^
the Ian 1 1^9 «j^.
L. C. /. Go your ovn way .
CVrr A readii,— • This iud'cuture, miHic the
* 23 ud day of Det"«einbi.T, iu the s*.< uuu ,*tid
' iUiid years of the relets of ou: n
' In id a lid lady Fhihp mid Miuy, l> ' «
kinjj uud i|ueen of Jmil. ii^i, > p^^^i,
, both thcSioiheii, Jeru^ul.. .jk iM'I ite-
' itftiidi <ietSBUikr!> ul* the Jiutht aich- dukes ff
* Ausitria, dukes of liur^ndy, Millniti aod
* Brabant; couui^of llaiipuJic* Yh
* Tyrol! ; bftween Murcellus H»M
' rmllcr, of tin ' ^ '
^ fiaiiliffe, *» i
^ other [liiil ; 1^ uiiL>ii iu, i ti
* C«lhi9 Hiill bath dciiiiscii,
nd
' Jbrm b'«» '«'•'" '^^
* wSiiU-1 ]
* »>to<>th I
* weit upon the ea
^ the mill* dam, rei
' 30 IcHit ; and tk-oiii
(Ttuntvd^ and |o
ui laiin r«riei t^Mit his
^e mill
>»ll ttK£
i^ alias
liiki iHulU-t.aa uuruor of
the said luiU'dani, southward to the rtv»fr of
* Tliames. 20 foot ; to have and to hold all and
'^ wbniu thti said wharf^ as iw before specifiedt
* with all commodities and pi" f ' ' u'lng to
* the same« to the said Join w hi«
* heirs, rxeculnrs, - ' - - c f«Aft
* ofHt. Mary the V dbw-
* in^ the dale of thi-,. j^.^ ...... «- iii«i«*lli
' and lei iti of 3u \ eart — ^
L. C. X Tluakasc waa read ih* l;*>ttiiii«*
Her^, Stringer* Yc«,it wa^ '-
Clrrk rc^ds.) ^ i» h ^>pl<^te
* ond ended > vu^lditig' ami payio^^ i ^r
* ihi^ same, unto tlie said Marcelli ■"*
' h«iri, extieutorni and a^aigoa, tetiaLtiUt^ iti
STATE TRI/O-S, 36 OHABtBft IT. l684,— TTle Lady Ivfs Tr'mt,
' lawful money of England yearly; that is to
* jiay, at the feast of Uie annuncirilion of 8t.
^ Mavy tbe Vir^-in. And if it lia|i]K'n tlie said
rent to hv. t>etiitid &nd unpaid at the said feast,
^\n part or 10 all, by the soact> of one fortnight,
^ and lawfully asked of tne said John Carter,
-^ his executor, nod assigns, then it shall be
^ laufiil to the said Mareellus Hall, hia hcirs^
executor*, anil assigfns, to distrain for his said
^ rent so beings liehiud^ and tbe disti-ess 8o takeu,
J to keej* HuJil such time as the said rent with
the aneara|ye*, be fully satisfied and jiaid.*^
X. C. J. For how many years is that?
Aif. Gen. Thirty years, *
X. C */► What is demised by this lease?
Ati. Gtn, Read the particulars ai*;aiiK
Sir X 7Vn>ur. My lord, we would gladly
Itfitfw where they hud this lease, that so it may
ap|»ear whence it came ; for we know they hare
an excellent art at dodin^ out of deeds.
L. C. J Ay, cximc, shew wbei-e you had it,
I me see il.
Gen. We did produce it at the last trial,
'^and at the tirst to<i.
L. C. X But that this jury knmrs nothlnjj
f, and tdey call for some account' of it on the
her side/
Att. Gtn^ Mr. Kuowles, do you know any
tim|4f of that deed? When did vou 1iff»t
it^
Wiliiams, And where had you it?
fo'/ri. My lortK I hiid it in a garret, in a
I of a nook', about sijt foot lon^y, and three
ot and a half wide, in my own boiise^ m the
garref atnontf other writings.
L. C. X How came you t<ihave them?
Kvotrtts, As I was executor to Winlerbnrn.
Mr, Ponis. Fray, Mr, Kmmles, will you
" what occasion you looked there aud
,n?
- ,^. .4iii Pcfnbertm, Ay, pray gpve an ac-
ornitof tbe whole.
Knowic^. My lord, ap*>n the 2«1 of Au^st,
3d82, wmsthc first time I evt^r saw my lady
Iry to tny knowledge \ and she was informed
bvone Mr* Vicarer, that I had ^r-vernl wril^ni^^
Jof Winterbum*s; I told her I hs*d so^ and loy
llndy desired me to search amonc^them, ifiliere
FVere aoy wniintrs that eoncemeil Kte|»kujs*s
•estate; 1 tolrl her it would take up a month's
{ time to look ali thecn over, for there vtms u vfreat
Itily of them. She said, I would do her
^ eat kinducj^s, if I would look ; I promised
r I would : and upfin tliefouilh ol'S<?piember,
\ think 1 limnd the deed,
X. C'. X How wa& W interburn concorucd ?
Atr, Gffi, T\wy have shewn that lie was
^•wner of the land once^
Mr Wiiiiamg. Did you crer read utot that
'lease?
X C. X 1 ask yon n^ini how was'AVinlcr-
Irtirn eoneemed 3*
Knoiku, He wan pnrU>er with Wright, who
^fold ihe estate to Mi \eale.
Att. Cm. But pray, Mr. Kiiowto, idt t
were these wntings erer shewn to Mr. NcakI
Kmmicj. In tbe year 1669, when BIr. Net'
bought this estate of my imcle Wrig|it,|
wri tinted were all to he looked over ; and ttpm
Mr, S^eale'*! request, oU the wniiiiirs w^tt »iit
to his counsel, a g^eutleman in ^ 's aoe
Ca^"", I think bi^i name was, ot jg^Hke
it ; and there they were lefH thrcj^ Hioniha, ml
1 believe in my soul that deed wai tioM^
them,
Jtt, Gen. Were they brought batsk again?
Knorcki. There were two hnmjxrrs broti^t
back.
Ati, Gen, ilad ymi uny discoutse with Mr.
Ncidc abtjut this business ?
Kntfwiti, ] Wits arrested tmnu hi^i account bi
an airtiao of 3000/. and ti . aiteriani
and ^ot mo otf from that nntltoUiBC,
Mr» Knowlcs, I am sorry you war* trrald
upon my account, ^o am J too, Bir, iii&il 1 \
!^id bej J do benere really yoti found Ikf
dee*\j I did so, ^ir, iuiid I :*but ^ays be, ffif
will you answer me one f\\u
That 1 w ill, two or three, tf I
iays he, did not my lady Ivy, ^
foist tbe deed into your bou:-.c ? ^l
before ercr 1 saw either of ihem.
that deed. Then I am undone^ sut
Mr. WUtiams, Who was bv
thfs discourse past between \f}-
Knorjffs. There was none I ti
Mr. Wtihatffs, It Mas at tbe tarcnt; Mr.
Neale, I suppose^ will not deny this,
L, a X Will he not? Will you Uke bi*
word for it ?
Knoutfi. I do say, I found that deed tl^ivf
X- C J. Read if ; read the demise. K (
Mr. Koowl<lk, let me ask you a cpieftmo «rt
two: as 1 understoofl, you said my liidv I7
desired you to fpok among Wmtcr burn's wrt*
ing>, thf deeds that ooncertied Sicpkins** a*
tate? — Knmrlfs, Yes, my lord,
X. C. X Where was that?
KnouUs. Thai m as at her home.
L. C. X And when did you find tbisdcf<I?
Kftwries. I found the deed in 8ep1(;fnbfrt
before auy body came to look with me, w p»*
in Ihe place wil'h me,
X, C. J H'us thcie any Iwdy with y^^f
when vou found the deed?— KhuuYn, So,
L t. J, Then you luund it yourself?
Knort^ltn, Yes.
X. C X Did you read it ?
huvu its I did the outride ; what ims 1 000*
Ceroed further ?
L. C. X Nay, do not bi^ angrv ; whfo iJii*
art mf»steahn, thou (^penkeiit so f;i&t «i man can
scarce understand thee; answer myqiW^W
Snt. Gnu (I'
fto Neale, Witi
hia executor, tmu \
lineli) WrJg'bt sold it
1, Mid thift mnn was
eamtito lU« W1 itinj^n.
Scijf:
M L
fairly :
yau read ?
i?ay you read it, what pariwai*^
Kttowfts, Tile backside, the outside
Mr. Wiiiitufii, Tliere
Doihi
ing
wntup
the outside.
X. C X How did >
the outside, ibnt it coiii.
Kncuks, I o«ly read i^iepKUi^ /• i^an
i] . STATE TRULS, 36 Ctt Aries IT. l6S4,— /<r great Port of ShadmiL [570
, C J, Slef>kiji9*s name, you say ?
tnotrlcs. Wlmi d€ed da you ask me upon ?
C. X That dc€d, tlie oul^ deed you have
I hen?. What is v<Mir chnstian name f
tnintiles^ Stephen Knowleff.
|X. C i. If I niistook you, I Uej^ your par-
our question is cancerniog^ this very deed
<£li»»itri f,> you.
f I ! thougfht you had meant the lease
Cl J. VVell lhen» let that pass for a rais-
; I wo id r I know ol' y"ii ooiv something
'Cfmccminaj this deed. Louk upon it — (which
lie did) — upon your oath, when saw you tliat
deed first ?
Kmrnle* I eannol suiy what day it wtkn.
L. V. X But, look you, if I mistook you
not (if I did, I u«sk your pardon again), did not
you tay you found that very deed atnong- a
great many other writing ot Winterburn'R^ in
om, w> many foyt lonj*, and so many foot
?, in your ^jarret ? Did not you say, that
von saw my lady Ivy first, upon the
-t, 1082, thai you Vounil that deed
I following'? And did not you tell
von did beUeve, in your coufciencc,
file yeiir lt>69, Mr* Neale had this
I oifiori'j^ olhei-s, sent to the cbiimber of
Igentlcman in Grays -inn ; that they re^
th«fre thret* montlis, and then were
kroogiit back again to you ; and you beUerc in
yiMir conscience this vtas onii of them ? And
did oot yousay> when I asked you, iiow you
rltnow this heloufred lo my lady Ivy f
d, bei7anse my hidy Ivy had s(»oke to
[look if there %vas nny thing belong-in^
LfRBf and you read the outside of the
nd found Srepkins*s name, and so you
^w it to concern her ? Did not you say ail
\? — Knau^ffs. I heheve 1 did.
t* C. /. Now tell me then by the outside of
t d4^, how thou canst tell that it belonged
1 8t«^pkins ? For if thou canst^ thou art more
crufty thiui any body her a, 1 believe.
iKmitles. I th ought it had been the long
e, for that hns Si^pkinst on the outside.
^X. C. J. U ell, let that p*s for a mistake ;
\ imut now begin a^ain upon ij new matter,
hen first saw you that deed ?
hJCiWto/tf. In September, 160^.
iX. C. J. How do you know that ?
iKnd^it't' I pttl »oy hand to ii.
_r]L* C. X Jiid >ou read the inside of that
Kttmvhi, No, t did not*
C, J. liook you then, we ask you how
t ome to know it w&«i a deed btlonti^ing" to
■riikitm 1*
liifttia la. I read the backside^ aitd put my
1 lo it.
L. C. J^ How ctiinc you to put your hand
l^^.a ^,.wi ,.. i-Utupn^^ ro8tepkiDs, when you
• the d«?ed ?
...n t liiund thiu deed to have
rWfCU Ufioii Tt Marcellus HalU I did believe it
ithin^ that eoQceroed th« Stepkina^s.
L^^J* Lei lis see the deed now— -(which
was done)— You say tltat was the rea«0E upoti
your oath T — Knamht. Yes, it was.
L. C. /, Then look tipou it again, and do
not t*e surprized^ but let us have the truth
come out, m God^s name. Was that the rca*
son ?—KnowUs. It was, my lord*
L. C, J, I would fain se€ Mr* Sutlotr, I
li ave a question to ask him.
Att. Gen. He is here, my lord.
L, C. J. Give Mr* Sutton his oatl»^(which
uas done) — Look upon the outside of that
deed, and upon your oath tell us whose hand-
writing that is*
Suttwi. All but the word (Lect.) is toy hand-
writinjtf*
L. C, J. Are not the words Marcellns Hall
alt of your hand- writing ? — Sutton, It is.
L,C.J^ Tlien how couldst thou know this
to belong to the Stcpkins's hy the words Mar-
ceUu?? Hall, when you first dis«!OTei*ed thii
deed in September, 16^2, and you found it by
younielf, and put your hand to it ; and yet
that Alarcellus Hall be written by Mr. Hut ton ^
which must be after that time ?
Att, Gen. He says he knowa it, because he
put his hand to it ; 1 auppose he read aomf^-
wliatof the inside.
£. C. /. He said the backside, th« outside ;*
iio did not reail the inside.
Att, Gen. My lord, I desire our efideooi
may not be anticipated.
t. C J, Mr, Attorney^ I would not antici-
pate your evidence ; but I must tell you by tb*?
way, your evidence anticipate tllcnm'lves :
Anfl this fellou-, Knowlej, wit hoi rt any moi^e
ado J has proved himself an errant, nutm-iuns
knave. And if your eTidenee will blunder and
spoil themselves, 1 caimt>t tell how to help it*
1 koeWf as sorm as L saxv the deed, that that
was Sutton's hand ; I know his hand, as well
as that you are Mr. Attoniey.
SoL Gen. Pray, my lord, give me leave to '
aak hrni a question, whtrh I hope may clear
nfl this matter, for it is pkiii the man is mis-
laken.
L. C. X Mistaken! Yes, I assure ymi
very grossly. Ask him what questions you
will ; but if he should swear as b>ng ar sir
John FaJ»talf roujjht, I would never milieve i
wonl Ue ftays.
Stil Gen, Did you look into the mi 'Idle ofl
one of the deeds ? — Knowles, Yes, I did.
SkiL Gtn Can you tell which you looked
into the inside of, and which you did mU P
Knowles. The Iwwe and some others I did^
but 1 cannot particularly tell.
SoL Gen. Then, my lord, here is the ease:
Here are multitudes of deeds, and a man looks
outhe insidt' of some, and the outside of others;
is it possible lor a man to Rp«-'ak posiliVely to
all tiie pai-ticular deeits, without being' liabfe to
mistake ••
L. C. X Mr. Solicitor, yfm say well; if he ]
had said, I looked ujwn the outiide of some^
and the inside of others, and wherever 1 saw" |
either on the outside, or in the itiside the name '
of Stepkins, or Mvcellus Hall, I laid them by»
»7I] STATE TRIALS, 36 Chailes II. iSu.^ne Uiy It^^ TfM,
•nd tbooffbt ikey mi^bt coDcern my lady Ivy ;
that had begi someUiinpr. But when he oomes
to be asked about this particular deed, and he
upon bia natb shall deriare tliat to be tlie rea-
son why he thqugbt it belonzed to Stcpkina,
because of the nasue uf Marcdlus Halfon tlie
outside^ and never reuti any part of the inside,
when Sutton swears Mercellus Hall was wa-it-
ten by him, what would vou have a man say ?
Sot Gen. My lord, I nave but this to «tfy ;
if tliere ware never a de^d ilolivcred by Knowles
Id ray lady Ivy, or 8uiton, where iUareellus
Hall's name wns written on the backside of it,
but by Mr. Suilon ; I cnni'ess it were a stronir
objection. But where there are other deeds,
ami a great many, a nun may easily be mis-
taken. It is impossible fur any mau, iu a
multitude of deeds thai he lindii among a ^reat
parcel, and delivers many of them out, to take
It upon his memory particulaily, wh'u^i he
looked on the inside of and which Jie hH)kod on
ihe backside or outsiile of.
L. C. J. Did be not give it as a particular
reason of his knowiefltfe, that they beloni^ed to
i^y lady f vy ? For wherc^ver he saw Marcel lus
Hall or Stepkius, he thought that belonged
to her.
Sol, Gen, Wherever he saw those names,
that is either in the inside or outside.
X- C, J, Under favoiur, fc^ir, he did not say
80 ; but positively said, he knew it by that
name. And you shall never argue me into a
belief, that it is iropoasibki for a man to me a
true reason, if he have one, ibr his remembrance
of a thing.
SoL Gtn. I beg your pardon, my lord ; as
I appvelu»d bim, be swore he looked into the
inside of some, ami the outside of others, and
there were a great many of them.
L. C. J. And I bog your pardon, Mr. Soli-
citor, I know what he swore as well as any
body else : if indeeil he had sworn cautiously,
and with care, it might have lieen taken for 'a
slip, or a mistake.
Att. Gen. My lord, we must leave it upon
its own wei(rht ; but we are not come to our
title yet : 1 have the deed in my hand, nhich
is a f t:ry old one, and therefore needs not such
exact proof, lie is mistaken, we do own it ;
and I must apppiil to the court, whether a
man may not be inisLikiin iu a great multitude
of deeds.
L, C. J. Well now, after all this is done, let
him give an account how he came to know
this to belong to Stcpkins, or my lady Ivy, if
he can. I sneak it not to prejudice your cause,
but only to tnive the trntli come out. But for
the witness that swears, it may aflect him I
assure you. Give him the deed, and let him
look upon it. — I.iOok upon tlie inside, and look
U|>on the outside too.
Knowles. I believe, my lord, upon better
consideration, I have read ihis deetl before now.
L. C. J. Very well ; and yet you swore the
contrary just now.
KttukfUs. 1 was in a maae, my lord.
L. C i. 1 am siire thouantmBt wildly.
Sol. Gen. Pray what de^d did yofi t
be at first f
KmmUs. The lease of ISSyttra.
X. C. J. Prithee re^ it now to us.
Knowles reads. This indcnUire m
22tl day of Dec.
/.. C. J. Between whom ?
KnofvUs reaiis. * Bctwceu MarcelliH
' lladcUff, miller, of the one part, 4u
' Carter, oar- maker, of the other pai
* uesseth, that the said Marcellus Hi
* deuiised, granted, and to farm letiei
* said John Carter, all that wharf 1
* Radcliflf, where late a mill stood, call
' cliff-mill.'
L. C. J. Can you say you ever read \
before ? — KnoicJes. I beheve I did.
L. C. /. When was it ?
Knotclcs, J u September, 1082.
L. C. J. Then you read it beiore you
it to my lady Ivy ?
Knowlts. Ves, my lord.
L. C. J. And you foimd what the <
were by readi:!g i
Knoicles. Yen, my k>rd.
L. C, J. Did you read it through ?
Kamcles. No, I did not, I believe.
h. C. J. How far do you think you i
Knowles, As fiir as I have read* now
L. C. J. Did } ou find any thiug thei
name of Stepkius ?
KhowUs. No, not iu that I did not
L. C. J. I would desire to koow of y
it was that came to my lady Ivy, to iui
you had such and such wntings ?
KnoiL'les. It was one Mr. \ icarer,
trial that was to have beep two or tlire
ago, at thu bar of the Court of King'
here ; but the cause did not tlien go O!
that Mr. V icarer did tell my lady, ti
Knowles had a great com|)auy of
that were Wuiterburn*s; and she desi
that he would please to talk with me,
I could do her any kindness or scrviei
of those deeds. The first time that I
was the 24l of August, as near as 1 can
ber, aud then I told her, I was exe<
Winterburn, and had a great numy ^
Said she, do you know the hand ol'Sc
if you do, and can find any uTitings th
to Stcpkins, you will do me a great kin
L. C. J. ])id she name any body else
Knowlea. She named one Lun,
Barker, and one Holder, and several
I do not rcmemlKsr all.
L, C. J. Was there any mention i
one Collet l* — Kncmles. No.
L. C. J. Was tliere of one Donne ?
Knou'les, Of oue Lun there w^^ls.
L. C. J, Of one Fecknam ? — Knon^U
L. C. J. Of one May ':*— Knouies. f
L. C, J. One Joan Hall ? — Knowla
L, C. J. Was there any meutioo i
any Hall ^-^Knowks. \ es, there was.
£. C.J. What Hall did she apeak i
Knowles. I am not certain whether a
waa named or no.
STATE mUIA 36 Charles H. i684»— /tr great Pdrl of ShaiwelL
[574
there it&iiof
but mfi oi any
ikpet so, Mr. Attorney. But
tk him thi« question ; if thf re
««c no Vtoili^ti of ati} Hn^' ^'^'^^ «ir^ine lou
11 lii 4i«t thst iHn 1c r Mot^Wllus
Kii li€3tifef slioiildaffecL i , i^, or my
Wriryf
ft^o^lSii. if y lord, I will gite jou an ftc-
MM of dm.
HlMirici, Tt»i« itas'at (he 1if>^l time llmt 1
m^ mfXmdy I*y, ihnt i)iis disco tirse wm be-
fno ^ t IMP, ttt anolker
tt ^ tiou iiiui iid slie tell you
ifiiffnt?
Mmiii ' '- ji.' i them all.
..C /. '^ ifc?* i^roni't (tally as
l1«Cli« ., ' ^^«^ i»'" first lime
mr Ki* ^ then rHo
kbtl^m o4 I _ fhnt con-
^Ifpliim, iincl Luu, and tinrkcr ; and
(»f»rh 3 rhr. ihi* finiitlj of Sejit.
[ :ttlt, lie f«i>iui«i ' Iniir h*.* ivifl not gwa*
filftcvaiiat Hri' 'o kf^ow, hy Hoirs
SM^tfeftttlitii I <kin«. 'l \tr>ul«l
liikitfV i^hm fj^'tlie name uf
iblMi^
Ifwfrf. It wftt fttl withm fl tnont?i*s time.
t^d/ Wh'> '" timt sj>«ke to you to
MVjiMtt t)
tmmku My *- jr . > spol<c m we about
, hilltMi 1 Kiife bcr accnniit nf snm^ ifcedfl 1
' look erer the
.nrtes,
:\ ditl you j^ivc* my
you bad futiiid any
X
I.
\^-
iiMrlbt. Ycf , t ^fttre her an ftcOtint of the
\>am^ ittt year?.
JL C:. J I ill! y «Mi find notbingf else b«l that ?
ft.. ^ '-K,
1 It did vouandetfC?
X^^nii. :,wvenil : Y ctinnot tn%e an account
L C. /. Did voo find that lease, or tlil«
Mfctt*
ni fimktUmi Qf liiieen dayy utter
I'-^s did ytiu find out ?
v\bcn you found the
ifj, »T Dvij i na*l found lh^' ^ ft
lliiidit by, and to<)k«l t
,«nf» ♦.*-...',< . ...M-f--
^ Id'
I wm m^ M eartloi as i r,;
k «r tb^ l0ni^ of I'^Q years, bui
ifteiTfibitfi tguin: Imt I Wt^ my Itdy
I bndfomid micb a deed ; ftnd the ordered Mr
Banister to bdp "Jitagatn.
1, C\ i^. I*r ver tne onec tnofT.
Who tir*t - ' mJ of Itiokiuf^ iifter the
Hulls r- niv Ivy.
L, CJ. r. ^, .,., ,,. iy by, ivhcnsbe spok*
to yoo to looli alter the lUlls?
iCwdaj/ei. ^ es, Mr. Bamil€i' WJts by,
L.C.J, Who fisc?
Knawtfi. Heveml of my liwly '« s^rrants.
L. C. /. Name some oVthcm that were by.
KnttteUi, Tliere ifos Mr. Banitil«!r*d wit# and
his dawghtcr hy.
L. C. J. Wfiat day was it mv VmW try finl^
spoke to vou to look after the flaUt f
KnatL^fes. AVithin a week after I flrtt izvf
her,
L. C. J, Was it before you found the letM
you s|ieak oH^Krifm^ici, Yes, it wnsbrlbre.
L. C. X Ho^^ eamria it to pass then» thai
you did not find it at the lin»t 1ookin|f) which
wus the 4th of September, ^vhen you found
tbtit lease, you aay P
Alt. Orii. We must lay aaside the testimony
of this man.
L. C. X Ay, so you had need.
Sdt. Gnu Fray fpavf th*? deed in court, we
shall have Mr. Nc ill v with it else.
Alt, Gen. We ^ your lonlshlp
to consider all the use wl joake of this deed
i<t fo provr, that the mill was removed to ano*
ther place*.
L. C, J, I do not know what it proves, ha4
if you had kept T<»ur *vi!ness Knowles in the
mill, t think y cm bad done better than brought
him hither,
AtL Gen. 8wear Mt, Bauifiier and Bbv
Clerk, (Which H'Osdone.)
S.fL Gen. Did you examine that with the
roll. Sit ? (ShcwitiV him a paper.)
Mr, Cfcrk. Yes, Sir, I did examine that with
the book that Mr. Northy shewed me ; 1 think
lliey uay he iii stewanl of tlio manor of Sten-
ney ; he read in the book^ and t read tnt
copy ; and it is a true copy of a survey of thftt
manor^ tak^n 25 EHs?,
Alt. Gen. I heard say yo-*-^ '^*if? bo<iki
of the manor here ; pray let i tdtioed*
Mr, WifiiaTfu. Yoii arem^n^v , ^ .Uomey j
if it is a true eopVi pray let It b«! read.
Cferk rtadi,] * The D*!an of St, PSatirs
' lifthls freely of fee or field » containing by fg*
* titnation —
L. C, J, Who is lord of the manor of Step-
ney now.
Mr. Poteis. My lady Webtwortb is lady of
the manor.
Clerk reads,'] * The Dean of SI. Pan!*!
hold;* —
L. C. f. Tins bounds H on the Eiist, on the
Dean and Chapter of Paurs landa, and 9o doth
yoQ no 1^00 d,
JUr WilHotnt. Let them ^ on, my loi-d.
iff f: ., \v.»f^ submission, tlie«e ire tn^
AtU tJen,
. -^ *jo On.
Wt«baIl|^on;
And i#ifh tub-
675] STATE TRIALS, 36 Charles II. 1084.— 7 Ar Lady Ip^s TVui/, [576
Hall a parcel of iiianb-fl
misaicm tbese bounds exactly agree with the
bounds that are set by the act of parliament
for draining the marsh. Here Is nothing that
we can see that they can claim but a mUl and
bake-house, and they are all bounded on the
West by Wall-Sfarsn; and the Lynches are
bounded in, part upon the North, and in part
upon the West ; and there was a little part
of the marsh did run into the North bounds.
But npw we shall come to our evidence; and
ficst we shall shew the act of parliament
Which being anno 22 H. 8, was read.
Att. Cen. Next we shall shew Richard
Hill's conTcyance by moilgage, to ViTold and
Salvago.
Which Indenture of Mortgage was read.
Clerk reafJi.'j ^ This Indenture made the
' eig^hth day of NoTember, in tlie 32d year of
* our soverei^ lord kin^ Henry the eighth,
* bbtween lliciiard Hill citizen and mercer of
« London, on the one party, and Anthony Vi-
* void and Hcnrv Salvago, merchants, of
< of the otncr party ; witnesseth, That
, * where the said Richard before time
* was indebted unto the said Anthony
* Vivold'and H. Salvago in the sum of 560/.
^ of hiwful money of England, whereof tliere
* are of their free will have pardoned
' 280/. The said Richai-d
< Hill by these presents All
< that moiety of marsh ground being 130 acres,
* Wing and being that is to say,
^ ixom Ratcliife mill, that joins to the Hilly
* Lynch to RatclifTe town, on the party of the
*= East ; to Grash mill hy the Hermitage, on
' the party of the West ; on the highway,
^ loading trom Loiulon to RatclifTe on the party
,' of the North; and on the river of Thames,
* on the party of the South
( given and assured to the said Richard
* Hill, by authority of parliament
' in the 27th year of the most noble reign
to have and to hold —
Att. Gen, Tiiisdoth vest the lands m ques-
tion with otliers in Vivold and Salvago, as a se-
curity for tlieir money.
Sol. Gen. Now we sliall shew a lease from
Hill to Marcellus Hall.
Cierk reads.'] < This indenture made the
< eleventh da v of November, in the 37th year of
- the reigii oV Henry the eighth ; lie-
<■ tween Richard Hill, citizen and mercer of
' J^ndon, of tho'onc |Kirty, and Marcellus Hall
' ufRatcUffe, miller of the other ])arty ; wit-
* nesseth, that the said Kichanl Hill, for the
" suiu of six iH>iinds of lawful money of
* England, to him in hand (paid, at the on-
* aeahnc^ and delivery hereof, u hereof the
* said Richard Hill hereby acknowledgeth
< himself to be fully satished, contented and
* paid ; and whereof he doth clearly
* acquit and <lischarge the said Marcellus
* Hail, his executors and administrators by
< these presents, hath demised, grranted, and to
* fJUxax letten, and by thes^ prcKBts doth de-
4
grant, and to farm lett unto, the said
]Ius Hall a parcel of roanb-miuid,
< lying and being at the East end of the*
' mise,
' Marceili
* tharsh £at butts on Ratdiffe faiBv
< mardi waU-bank, or wall
* belonging and the well
* Shadwell, containing by cstimatioa
* eleven acres apd a half, more or mmb, abuttia^
' on Thames wall, on the party of the South;
' to the lands called the Dean's Lynches, on the
' party of the North ; and on the wall tkc
* reaches from the Lynches to the iabad, by
^ the pond on the west,
' with all the Uireland and soil.
' All which mai-sh-lantl is in the parish ofSle-
' bunheath to have and to hold themanh
*• land foreland and soil to the aiA
* Marcellus Hall, from the feast of the anmn-
< ciatiou of St. Mary the Viigin next ooimii{^,
' for tliirty and four yeai-s —
Alt. Gen. Tliis was a lease made to tbdr
miller, and contains eleven acres and half n
acre, which wc shall shew isjustexactljth^ '
contents of our land. Next then we shall i
to the convey p.nce raaile to Thomas i
which will bring us to our title.
X. C. J. Rciid the reservation ofthatkuc-
Clerk readi.'j ' Viclduigand paying thcR"
* foi'e yearly, "and every year, unto the md
' Richard Hill, his executors and assigns, tbisi
* pounds oi'c;ood and lawful money ofEnglaDd
* at four terius of the y^^vr; that is to say, the
'feast of the nativiiv of St. John the I&(Miil|
< St. Michael the Aichnn^^el, tlie birth of Mr
'Lord, and the auuunciatiun of St. Mary the
* Virgin.'
Serj. Pf.ntLrtcn. Tiay'my lord, we desire
tliey niuy t;ivo souxo. aVtouut of this lease,
uherc they luiil ii, rjul h^^\\ iii.y came by it
Att, Gcii. \\>ii iia\c !iad it hi your haodf;
you see whrit it i.i .
St rj . Pl /hlu'ti >ji .Yes, n :i d therefore we de*
sire to kiin.v vtoauihiii*' iJiout ii, I>ecau9iewe
find Kno\vlt> s I:u:;d to it.
Att. Gin. \* «' v\'M q,\ye you a belter aocont
of it thuu^ouiiiuiL (i>i\ Gut that will letjfo
into nn hour's \% rangL' more, which isallyoa
have tu say for \ ours-. I^c-j. We have it, dJI^
pro\e it.
Scrj. Temben^n. Yv;u liMo it wssce;!**
remembta- you will give no aocouot where yoa
had it. Bui then we Ui;»iie to ai^k Mr. Koowjee
a question, Whether ir.y ludy Ivy was with
him —
Att, Cen. My lord, w^ Ocsirt' we may «o
on and give our e.iLivriictr ii.tiic; they ww'J
fain break in ii|:nn us, and tsik«i up anrther
hour in quarrellint'- wiiu ouv wimess. • VMij*
we bear thtiii in tfu i: time oflcr lo impeachtM
validity of the det-d, tiien Mill be our limet^
justify it; and 1 doubt not hut we shall give »
satisfactory accomit of it. J*ray, will yon jPJJ
an account of the deed you sna]>ped up tbeb*
time ?
L. C. J. Nay, nay, Oentlemen, we cav"
kC up our time in vour diakwim •■! I
heats. DoyouDdiJ
take up our time in your dialogiiei M i
liiiiderthaB»tfMliMJ|
STATE TRIALS, 36 Chables II. l6M.^fifr great Part of Shadmll. [578
*• eleven acres and a half of marsh-Iaiid arc in
* the holding' of IVlurcelliis Hall, miller; and
* and also the bank, or u all-flood or (Kind, ad-
*• join^ West on the said eleven acres and a
' halt, containing hv estimatioa of niea^jure two
* acres ; aiid also afl that parcel late ^ividt'd into
* two, and now late in the tenure of. Uichard
' Hill, batcher, containing by estimation of
' raeasare six acres ; and also all that parcel
* >Vcst, adjoining* to the six acres, vliich I the
* said Richard Hill hold in my own hand ;
* and also, that is to say, all that
* parcel with the bank or wall
' ishmd and pond, containing by estimation of
' measure ^\e acres ; which last thirteen acres I
shall not hinder you when it comes to
B.
Thii deed hath been reail for the
ind defendant, and is market! so.
•tn. It has been twice read before,
r. Wall, will ye co on. Gentlemen ?
'en. Then we shall shew this decd-
This is also marked to have been read
Reads) This is dated 16 Apr. in the
of kingf Edward the 6th .
II faithful people to whom this present
: shall come, I Richard Hill, citizen
ercer of London, send greeting in our
od everlasting. Know ye that I, the
chard Hill, for the sum of one hundred
rty Dounds of lawful money of Eng-
\y Tnomas Stepkins, alias Stipkin, of
ishof St. Mary Matfellon alias White-
, in the county of Middlesex, beer-
, onto me the said Richard Hill in
lid, wherewith I confess myself to be
d truly satisfied —
r. Upon whose account is it that my
Irepory comes here ?
innger. My lord, Mr. Baron Gregory
ed by the plaintiff to be here ; and as
« come to our reply, we shall ask him
sdons : if he please to stay, we will
Imn ao soon as we can.'
«ji. Nay, rather tlian trouble Mr. Ba*
jy we yield he should bcexamine<l
Gregory. I am not in so much haste,
but I can stay awhile, and not break
the middle of an evidence fur mc.
K If you please, they consent you
Eamined, and they may be long.
rregory. I would not interrupt the
evMeuce.
'. Nay, we will take you at your word ;
be long, remember we would have
I, but you oomplimente<l yours<tlf out
w yon arc like to abide by it a while,
^-oo, brother. Go on.
reads.] * And do therefore acquit and
te the said Thomas Stepkins alias
faifl have given, en-
sold, granted, and by thi^ my present
conflnncd, all those
ir-and-twenty acres and a half of
and, measured by the rod or |M)Ie,
Wapping- marsh
Mfea of which are lying adjoining on
t nde of the mill that butts upon the
nk, or way leading to Ratciiff town,
Rateliff-mill, witli the bank or wall
10 belonging, and the well adjoining
way that goeth up to the Lynches,
kadivcU, lying in the East enit of the
•■d all the next piece West adjoining
nine by estimation one
■i ikm pond and two acres adjoining
ital Me, six acres lyin^ in the bot-
■ Mlhf. Lynches, aiHoming North
imA that reaches from the Lyn-
""^^"^ the pond. All which
' bought of, and had conveyed to me and my
' hsirs, from one John 8t. All
* which four and-twenty acres and a half, more
^ or less, of marsh- land, abutteth on the Thames
' wall, on the part of the South ; to the landa
' of theL dean and chapter of the cathedral
' church of St. Paul, called the Lynches, on
^ the part of the North ; on the aforesaid mill^
' on the part of the East ; and on twenty acres
' of the said Thomas Stiukins, on the part of
'the West. And also all the Thames bank or
' wan, belonging to the said four-and-twentjr
' acres and a half of marsh -land ; which said
' piece or parcel of wall doth abutt on the South
' end of the said on part
' of the East, and on the bank or wall in the
< occnpving of William Knevet, on the pan of
' the West. - All which marsh-land, bank or
' wall arc in the east end of Wapping marsh,
*• abutting on the aforesaid hill and hilly bank
' aforesaid, in the way leading to the town of '
*" Ratclift* aforesaid. And which four-and-
' twenty wren are part and parcel of one hun-
' di-ed and thirty acres which was
^ heretofore continually for the most part ovcr-
* flown and drownt^l with the water of the river
^ of Thames ; and all and nngnlar messuages,
^ cottagc:s, houses, edifices, orchards, tolls
^ ^foreland and soil, which were the said
* Thomas Stepkiiis's before the overflowing
' and all and singuhr messuages,
*■ editiccf , cottages, ■.. celkirs, sollars, or-
< chards woods and underwoods, aud all
*• other the rest of my hereditaments, whatso-
' c'vur, in the parish and manor of Stepney, in
' the county of Middlesex.'
Ait. Gen. Now we shall produce a lease
from Stepkins to MarccUus Hail.
Serj. Pemberlon. 1 hope they will give some
account of this deed first.
Act. Gen. When yon say any thing again!»t
it, Mr. Serjeant, we will ; but we desire now
to go on with oar evidence. Read that deed.
Clerk reads.] This has been read before, and
is marked.
' This Indenture made the SQthday of April,
*• in the sixthyear of the reign of our sovereign
' lord king £dward G, by the grace of God
< king of England, France, and IreUind ; be-
* twixt Thomas Stepkiiu», otherwise Stipkin,
* of the parish of St. Mary Matfellon, ia the
* county of Middlesex, without ^Udt^atc
2P
570] STATE TRIALS, 36 Charlei It 16^4,— Tfcr Uify hyA Trial,
bcer^ brewer, of Urn one part ; and MarccIIus
JhiU of Ris tiflr» milkr of the otlier pait ;
f^\ .r tlie sAii] Thomas ^10 pklns^
^ .'^»iif f'Jr the iuni <»f 50/, o^
' Oawlul mouev *>1 Englaml, to ihe fcaidThomaJi
■ St^I>V.i'^<? otfirr« i5«» >irT|>kin, by the said ^lar-
:: hereof, wpU and
1 of ibef^anie do(h
^Mjiiii aiiii iii^t Uarjjc Uic said' l&lar*
HjjII, hrs f xefutors ajid DKsit^ns, and
jofitii T "■ -■ * ;cprefien1*ihaUidcmise*f»
' {^TAnted, In i to farm letlen ; and by
* theKp |MTs ,, r.n.i demise, ^rantt b<Hakp»
' ;,uil h. hum ItU imtu iUe said Marccllus Hall,
^ i i]i',r.<- ]iM |iiircc'la of mar^h-]ai)d lying^ aud
* I M the wesit side of
* i. ^ .or way oalle^l Raichff-way
* anil the iiell adjoiuin^r to the way ihat
*,poetli «ji 10 the Lyiiehe** culled Sliaduell,
•.Riiiif in the east end of the man%ti, cr»n-
' ' uiixiafl: by esliniation of measure, tliree
* acres and a half, and all I he next nieee west
*' a^ljoining to the same, coDtaillin^' uy estitna-
* tion of measure, six acres and the [Kind ;
■ and tno acres adjoixiinir *m the west t>idc of
♦the aivacrn*, t^m^ on ihe Itottom of the
. •^Iiillv Lynrlies, adjoimnQ^ north. w«il on the
*iraftj which rcacheih from the Lyncbes to
•the island by the ^M>nd; fdl wbiVh eh'vcfi
' acres and a hall, little more or les», abutfrtJt
* on the Thames wall on the parly of the muih ;
* In the Dean and Chapter of tlic cathedral
* church of St. Paul, called the Lynches on the
* party of the north ; and on the wall by the
* ponil an the parly of the west ; and also all
• • the Thames waif l^elonjpn^ to the said eleven
* acres anrl a half of meadow or marsh- land i
* wlmh said piece or parcel of batik or wall
* doth abutt on the south end of the afore-
♦aaid hilly bank, or way reaching' to the east
« side of It, which Knidetb to RatclilTto^n on
• • Ihe party of the east, and on the wall in the
* Orcupation of John Emraid, on ihc party
* of the west, and also all tb*' foreland anil
* soil down to the low water mark of the rirpr
* Thames belonging to the premises : all
•i^Klch in the east-ead of
* Wappinjr maruli, abutting on the aforesaid
* mitl^ aQd the hilly bank, or way leadioGT z^
* aforesaid in the parish and manor of Rtebun-
* heath otherwise Stepney, in the cotnity of
* Middlesex, and now in the holdinif ot the
* uid Marceltus Hall, to have and to hold alt
* the said parrels of maridi-buul flir^^lairid and
* soil, nnd every part and |». >i\ to thu
•said DIarcethis Hall, hif% ^ ;ind as-
* ^rgn^i from tlic fei^st of the aimnneiation of
* St, Mary, the Virgin, before the date here-
* of to llie end and term of 13S yeara, thonce
**next ensuing, yield in^^^ —
Sal Gzn, Read the Proviso,
h. C. J. Rfadthe reservation of tjierent,
J^Urk reada,] * Yiehling^ and paying there-
pre vaailvfor Ihe mme. to the said Tiiomas
pktna, hln heirs and usj^i^nK, one pepper-
^)orn, Hi the feast of the auunacifOkia-^
SifL C§a. Now read the Viormff*
And the aid )larc«I]iia tiill
» for i
' naaictJi
* Thottja,*; "-
* he the s^a
* a^isiifns,
^ charts. — Aud it a> furthu t vn ^iianto^,
* cranted, lind ajjrer^d U^tv^ppn th** said piirti*«,
•that ■ " • ■ • ~ .
*cc)l
* ate <ii .I'^M^'ii tiiJiK j
* any part tbeTfot*, a^
* and «r»r,u. ,.♦ ,,f iiie fc,^.,. i M..^.^i^
' hcii -ns.*
J^li ,. Prav. inv li>fi1
me leave to a^k a qn
Ait, Gen. My h^
mineil yet ; they cefinot, amkr tavour^ wkfaiin
any *|uestion8.
Mr. Wtlliums. You have sw^^ nl w)
he is under un oath, and w^ w-* '-r-
annnc him as your witnc*^
huvc read. Is that your i
Ihffdeetlof 16 Apnl!)
Bntt liter. This h tny name writieti by wy
own hand.
31 r. WtUmnii. When did jfm WfHe jm
hand there, 31 r. Banister ?
BannUr. The 16tii of April i$^,
Mr. Willtnm, l*iay, Sir, lo^k opoo it
agiiin.
Baniitcr, This i« my banii* audi wmJllDf*
self when the deed wa« found ; 1 writ a p«p(r
of such flf^eds OS wer«} found ai the miitB-
stantnf ijine,
Mr. IVtlliiifm, /Uid you iriit itwben fjw
found it ?
Hanhur, I writ that, name at that ioittfit
of time.
8erj. Pemhcfton, When was it, do yoo ufi
Bunitfcr, The 1 6th of S" -• i ■ « ^ ,
Mr. WiliiamM, Are yon
Banister. Yes, 1 um s ,
Serj. P ember ton, ^
Banhtcr, It was in i wni
tlus paper at the aant« time.
L. C. J. ^Vhere did you write tliii name I*
this deed ?
Rarmttr. At Wt, Knowles^s house.
/.. C J. When was the dn^ai linie that y^tt
saw thai deed ?
BimaUr. The very same day tlial 1 wrilinj
name on this ]>aper.
X, C, J, Did he find the deed, or you ? Let
me jkCe it, (Winch was done)
Banirjff . He had found that deed bdbii. ,
but f I it« and deiiircd mv
to till
X. C.J* Where did you find it?
Banister. In a garret til ihlr, Knofrltt^
house.
Sol, Cm, Were there nota
I deeds there ?
Ba ni$ier. Ves, there were a great J
L. C\ J* Prvihee, look tipea it
consider what thou sayest*
8115 STATE TRfA W, 36 Cr ASt trs If! 1 Jiv— yir greai Fart of ShaAcelL f 5S2
^u
L C.J.
L. €. J. VetyweW • 4lid huw came ili j naiiit^
Bftnitter. Tbw is tlie Very deed I looked upon
«t that time.
I.. C, X Where dt^ you first see tlmt deed ?
B^nuter. I was nt the findings of it la a gtir-
If ct Mr. KfiovrlenN lir>ufte^
C /. Tbat iifts ju He|»t. 108^ J you say.
siilfrer. Yea, in 8t*j>t. 158^, I never §^w
fore*
£. C% /• Pmr, wllo are riarties to that
deed=^ ^
irni. My lord, it lb the purchase of
El Uto ; and how shotild tliat come
to he ia the po&seasion uf Raowtes?
KManmier. 1 never saw it Mbre ihattime»
3L C* /. Read it a^iu.
Cttrk irtitds.]^TUm h dated the 16th ot
Aprils in the sixth year of Edward the abrth.
• To all taitUftil— *
So/, Gci^, Certainly, my lord, be i5 under a
mistake.
J*. C X Ay, 5o Is he sure enough, hut a \'ery
Ibnl <iim QpOD my word- Rut let u* lee if we
etn hrm^ him out of it* Mr* Banister, let me
ro« a qoeatiud*
anutcK Yes, my Inrij, if you pkmse.
• C\ /. Then pr^y miii<] u bat I nay, dud
Fofit. The Itilli uf Sepieiuber, ioB^,
I the time that yon wont ou ]Hir(iOsi^ to look
for 4ktAs at Mr. iinowles^s houso ?
l^muitr. 1 was ihere un the 7th of Septem-
f and that was the rtrst day that ever 1 came
\ Mr. lttiow!*^*g house in my life*
, C.J. There were souh- Ir^k ii ^rr-m^?^
tMr, Knowlcs hud ;
f#er. §o Mr K
. C. J, VPhat became of thoae dcetU he
I found before ?
amititr. As he told rne he had mislaid thera.
I C J, And when did you come to have
I Aocunnt that he had found tliose deeds tirst ?
BanUt^, Jt w^ after 1 had paid him 3i, h>r
I*. C. /. When was the llrst time that he
t^eol it?
Btatitter. It was the flAh or fourth of ^p*
. C X And when did you first ofo thither ?
t^htrr. On the 7lh of StipteiiiCer, he de-
t ine to come and hefp Itrm, and assist him
Boding ont the dCedi^ that be had mislaid.
* C* X What do you know of this deed I'
niUfr, We found one deetl —
€% Jf* Look upon that carefully, ia that
VMr Hsttd? — Banister. Thai is my hand.
m/f** €. X Do ^ou rememht^r when you put
^Kr hand to that deed ?
^^^FitfTf r. The pa|>er 1 have in my hand waa
written at the »toe time.
L, C. X Lo€»k QfKui that (laper^ and consU
Aer H well ; and now tell um whc-Uier you foimd
iiAt de«d flmt or Mr, Knowlcji F
Beniittr. Mr. Kno^^lea.
L. V. J^ Now look up<yn it, iDd look upoti it
AiAfiy, when wai it P
Bani$ter, Tl^is deed came into my hand>; the
same day that I writ this note.
A(C. ben. My lord, iiedcsii*e we may go on
with our evidence, and not luve them breiik in
upon us to examine any tiuch ihui^ till tlivir
lime comes ; if tbty have any lhiii|ar to ul^ect
a^inst our wimesaes, let ibeui take their time.
Serj. Panberton. Mr, Attorney, we are very
regolar sure in what we di> ; you prcnluce a
deed, and we desire an account uuw you etune
by that dtted; and fioding Mr. Banister's naioe,
who is your wiiut^^s, aud sworn by you» we,
would know of him what he knows ot it.
L, C X Ay, ay, let truth come out, m God*a
name. Look*a[)ou it, Mr. Banidter, once more.
What say you to it?
BunUicr, This is the same deed, and my
hand.
L. C, X Upon your oath. Sir, when did yoa
firift see that deed ?
B(tniiter, This deed 1 saw the 7th of Sep-
tember, 1682.
L. ax Where?
Baniittr. In the gmrret at M(- Kuowtts's
house.
X. C. J, Did you find it first, or Mr, Knowlea?
Bartitter. 1 cannot tellp it may he I might.
- L, C. X Are you sure you then put your
name to that deed ?
Bftnitter. ] did put my hand tipon this sam«
deed the 7th of Sept. l^RS.
L.C.J, Pry thee look upon it aguin, and« {
look very carefully upou it. [Which he did
i\w a good w Jule togetner.]
L, C. J. Now look U[*on your bote again*
Att. Gen, Fray dp so, and peruse it care*
fully, and see whether that deed he in your
note.
X. C. X Nay, g-ond Mr. Attorney, let us
havo no directions. What say you ?
BanitUr. I set my hand to several deeds
that I found there, to some writings on the
Tth of September, and to others on tlje 16th.
L. C, X Now tell us, which of them it was
that thou didst put thy hand upon this deed?
Banitter. I believe it might be tlie Tth,
X. C\ X Did«t thou not see that deed heibte
the 7th of Septemljer, I6a3, upon thy oath?
Banister. So, never.
L, C. X Who waa with you when you first
found that deed .^
Att. Gen, Pray my lord* let this note bi
read, and that will clear all*
X. C. X No, by no means, Mr. Attorney ; lio
may make use of what notes he (rteasoif to re«
fris>h his own uiemury ; hut we will never sup-
port or prop up a pfrgitry nt that rule, 1 assure
you, by a note. Was Mr. Kuowles with yon
when you found that deetl ?
Bfinitttr. He was.
L, C, J. Do you lake it upon your oath thai
thirt deed was 'found the nii of 8eptemher»
1682, in the garret at Mr. Knowlest's boose?
Banister, i cannot tell which of the two il •
was, the seventh or the sijrteenlb*
1, C. X Was ii one of th« two, upon your
oatlt?
STATE TRIALS, 36 Chaxlss IT. l6Bi^The haiif %*' THf/, [fill
I
t
Ba n u t( r » It was one of tbc two.
L. C, J. Now call Mr. Kaowles ac^iiin.
Mr fii7/i«Pi*, There be is, roy lord ; if your
lordship |)1ease to look upon the deed —
Kaowk-s's naine wits to it likewise, but scraped
out.
L. C X Well, wc will ask hlro about it.
B«t, Mr. BmiKter posiiively sweart be wai at
the finding of this deed. What say you,
Knowles?
Kftofrlis, I know nothing of it, my name is
not to it
Rlr Williojus. Was your name ever to it, or
not ?— A'wrwr/ef» No, ueVcr.
Mr. Uohbim, But it was to it, U tUe trial m
Miebaelmiis term.
L, t\ /. Did you sfrt yo^r name to all the
(Ic^tiii you found in tli« garret?
Knowks, Yci, 1 did.
L. C. /. Upon your oath, Banister^ did you
set your name to any deedi^ that he did notuiat
were to ut»d there?
BaniiUr, 1 believe I might do ao, I would
not swear punctually to it.
L. C. J. liVas he with you ?
B*mifUr, JIc was with me in the very s&m^
chiitJib^r,
Kntfwkti. 1 do not know that ever I put my
band to that deed in my life.
L. C. J. Did you ever !*ee (hat deed ?
Ktwu'U^. I cannot t»&y I did ; I remember
nothiii^ of it.
L. tlJ. I ask you once again, wbeu yon
found this deedf was he with you ?
haniiler. Yes, Sir.
L, C J. You, KtJowlcR, did you ever tru^t
- Jiim to took and scare ti any det^ls in your
Jparret, but when you were by yourself?
Knouks, No, my lortl.
X, C. J, Tbeii I* would ask you uj>on your
Ofltli, because you are the persons that hsul
these deeda in your custody ; was there any
deefls dehvered out of your nand that you did
not set yoar band to ?
Kmmlci. I believe there was never any one.
L, C* J. How came this deed, which he
iwears was found there, not to have your hand
toitf
KnowUi, I do not know that ever J saw it.
Atf. Gen, Did Mr. Knowlea t^ay he was
lookrny: for deeda of his own concern, when he
-fijundtbe first deed?
Bnni$(rr. He did say he had looked before,
•lid hail tbutid some of these deeds, and then
tni^lnid them, aud desired my assiiflance to find
tUem ag^ain.
X. C. J. What did he say to you at first?
Banhter. He said be had been spoken unto
by my lady Ivy, to look for deetls that might
coTiccrn her ancestors, and he had found some ;
hut tiDiling- ^tne also tliat concerned himself,
he had mi^liiid my lady^s, and desired me to
help him to titid them again*
i. v. J. What employment have you under
my hdy Ivy P
Ban^Ur, 1 am her reat-gatherer.
i^C.J, Her baihif, 1 fuppose: But »ow
von sneak of what my lady try ifeimal of
Knowles, I would aak you a quealio(i« lest It
slip oat of my memory, were you preaeot at
rmy time when my lady Ivy spoke to Mr«
Knowles to look after auy deeda ?
Banirier. Yea, I was,
X. C. J. Pray tell us whose deeds she dti*
sired bim to look ?
Bmiittr. The deeds he said be bad miihii
LCJ. What were they ?
Banisicr. The deed of Richard HilU stttd the
deeds belonging to Stepney and ShadwelL
X* C. J. What names did she metitiaa t<»
him, that she would have looked ailcr ?
Bannlcr. 8hc did meution some.
X. C. J. Upon your oath, did she i
any deeds made by Dr. Donne, dean i
l*aul-8? — Banuler, No.
X. C. J. By one l^Iay, detn of St. Panl'i?
Banister, No.
L,C,J, Was one Lun ntuikod ?
BanisUr, No.
L.C.J. Or one Holder?
Bam iter. Not thai 1 know of,
X. C. X Did she mention one Joan Halt?
Banister, f do not, know tliat mv Mf
Ivy gave particular order for any ot^ duN
names.
X. C, X. Did she, iipoa your oatli, ouuc
Marcellus Hall to you ?
Bunister, No, my lord*
X. C. /. Upon your oath, Knowles, was ant
he by when my lady named Marcellus Hall t«
you ? — Knoulh. rie was, my lord,
haniiter, I did not hear my lady name tldi
I name at all*
L, C. J, No; he heard b'^*- ^^'^^ r^rA^r(of^
particular deetls, neither t l.uii»
nor Marcellus Hall, but oiii_, ^ "Step-
ney and Shad well,
!Sir Edu. Herbert, Banister, did be say b»
had before foand them, and mislaid tbcmr
Banister, Yes.
Ati, Gen, Upon your oath» what dead M
you take that to be which is produced ?
Mr. p4?a II. Can you read it, yea, or no?
X. C J. Mr. Powis, do you think my lad J
Ivy sent Bauistcr to look atler deeds that be
could not read ? that were very prtitiy !
.'If I. Gen. What deed do you take it to be ?
SqL Gen, Let me ask you one questioti, Mr
Banister ; Did you ever set your hand to aoy |
deeds that were not found at Mr, Rnowles*!^ ,
Bimiaicr, Yes, I have.
Mr. Lutuich, Upon what occaston did yo
put 5'oar band to them ?
Bunistcr. Because they wete ancienl i
and 1 was to look out where the haudi
that thev did concern.
Ait, Gen, Pray now answer my qucitioaj
look upon it, and tell me what deed do
take it to be ?
Banittcr, It is a deed of sale to J
X. C* J, It is sOp you are tu the righ
and now upon your oath, where did
that deed of sak?
Bani*tfr. My litnd iitoit, and thli|
I TRIALS, 56 Ctt ABtRs. II. l684,— /or if i-c^i PaH tf SkaimU. [586
» it It Im «4it that WM found in
Mid sa, 1 know not How
I is not hittlsdf.
r can 1 beTp that, Mr. Atlor-
\ He iBiySt is plain.
I overthr •^^♦^^ v^^vs have
•li;andn iH the
rium tesd bis note^ (which he
J hitn whtil jrou mil.
I there any d<%tl <»f the ]Gth of
, from Uiil lo Slepkins, Id tb&t
\ it no ftir question, Mr. At-
lith TOUT fnvfmr, my loH, 1
I for tluit will make it pblo tliat
te he \% ; hut nith your fs-
fclair fjaestioo ; you ure on(y to
'"^ ftl deed git en in evitlencc
osk Hiin one short ques-
bd 1 think it is a fuir one.
in Ciotrs naine^ ask what fair
' leading ones,
» is drunk, Madam. —
My Imtl^ he docs not under-
hy», tliat 11 plain,
ther, all knaves are fools in one
lv« ynu read the date of tliat
' lord, if you pleaaef we will
r evidence a wbile^ and let
""y and consider of it,
my heart ; but I think
B, tf*e worse he is ; and so
iof the<;hapter,
have eatfed to os, my lord,
of this deed ; we shall now
Ketle knew of this deed before.
r^ (wbjch was done*)
roame?
y will you tell the court
course you bat] with Mr.
said about a deed, and
saw the lease ; hut as f was
\ tml, when there was a rer-
to be my lady Ivy's ; and
tod of Decern Iter last/ 1 had an
J with Mr. Neaie, he being^
flidy 't» husband, since dead^
ptaveniv with whom I had
\-Bry: re iirat, (I
nti' :ni^t)andin
llfrcauiv up Muim. After
\ ^3K% or three comuUmeuts,
Im^^'trn ' "♦ Mr. Attor-
I'lc, to treat
-, h Neale, l«t
ttW^O/ to be paid
by him that fails. No, sav« Mr, Biyan, I will
make no forfeiture, but* ( will eeriaifity meet
there. Says Mr. Neale ai^iu ; And I question
not but to give such satisfaction, as M'hereby to
convince you and my lady, that this iii not her
e.<^ate. 1 should be glad to hear that, sayi
Mr Bryan ; why I hope you do not think the
deeds are forged ? No, says Mr. Neale, I do
not think they are forged, Mr. Knowlet
offered me a long time ago, to slkcw mi
that deed, and I might have had it in mv
possession \ but I would not : for if 1 had, T
should have been the aptest man hi the world
to burn it. This is all I can say.
L. C. X And what is this to the purpose,
getillemen ? Alack-a*day, this is t cry thin ; a
slight discourse in a tarem : how can any an*
swer be given to such an evidence f though in>
deed It dues not need any. Pray let not our
tiroe l»e taken un with such tritliog stories of
a oock aud a bull ; go on to that which is ma-
tenaL
Ah* Gtn. Now we ihall produce a lease
from MarcelJus Hail to one Roper, of part of
this eleveu acres and an halfl
Clerk reads,] * This indenture made tJie
* 13th dav of November, in the 2d and 3d
*• years ol the reigns of our sovereign lord and
* lady Fhiiip and ftlary, by the grace of God
* king and queen of Eagland^ Spain, F*rance,
* both the T^ictlies, Jerusalem, and Ireland \ de*
* fenders of the faith, arch-dukes of Austria,
* dukes of Burgundy, Miilan, and Brabatit ;
*- countess of Hupsburgh, Flanders and Tyrole ;
* between Marcellus Hall of Hatcliff, mitler, of
* the one party, and Richanl Roper, citizen
' and Salter of London, of the other party, wit-
* nesseth, That the said MitrcelluH Hall, for the
* sum of six pounds of good and lawful tiioney
* of England, to him by thesaid liicbard Roper
*- in hand ptid ; whereof the said Marcellui
« Hall clearly acquitteth and dischargetb th«
* said Richard Ro}>er, his executors and a«-
* signs, and every of them, by these pr^enti ;
« hath granted, demised, and to farm letten, and
< by these presents granteth, demisetli, and to
* farm letteth, to the said Richard Roper, a
* parcel of marsh -ground, lying and being in
< Wapping marsh, at the eust end of the marsh,
* hegtnning at the west «de of the well, which
*' liem by the v»i«y that leadeth up to the
< Lynches, esfled 8badwell, measured by a
* strait line from the Lynches, by the west sid*
( of the well, to the Thames wall, and reach eth
( wwst to the way that leadeth up into Ratoliff
* high way, containing by estimation of mea-
* sure seven acres, litue more or less, aud t)ie
< pond ; all which marsh -land ahutteth north
*- upon the Lynches of the dean and chapter of
* the cathedral church of ^ Paul, and Mutli
< upon the Thames wall ; and also all tht
* Thiuoes wall bidongtng to the ocvea acres
' with the foreland and soil, down to the low-
' water mark ol the ri*er of Tb ' ^'- • -V whicb
< marsh-lauds ore lying in th« in:inor
* of* t^tebunhcsath, aliaa K^piK v, .. -..v touuty
*• of MidJleiex ^ to bave aod to bohl t|M said
1
1
SSri STATE TRIALS. 36Cuabi.K8 II. l6%i^Tke U^ liy^t TrU, [fitt
' parcel of inMnBh*g;roiind. will, forduid mmI
* foil, with the apparleDtiioes, to the nid
< RicbanI Roper, hia «Jcecuton and aasigiia,
< from the feast of the annunciation of our
« Uened lady St. Mary the viigin, next coming,
< unto the end and term of four'and-twenty
< Tcara from ihenoe next enmunr, and fully to
« be completed and ended ; yieMing and pay-
* ing therefore yearly, during the wid term, to
* the said !klarceUu8 Uall, hia execnton and as*
' fu^s, three pounds of good and lawful mon^
* of England, atibur lerma of the year. —
L. C. J. What date is 4h»t deed of ?
CUrk. The ISth of Norcmber,in the 2d and
9d years of king Philip and queen Alary.
Ait, Gen. Now we shall read Stqpluna's
license to Uall, to alien his term.
CUrk reads.] ' To all manner of people to
whom this present writing shall come; I
Thomas 8tcpkins, alias Stipkins of the parish
of St«bunheath, alias Stepney, in the county
of Middlesex, beer-brewer, send greeting in
our I^rd God everlasting. Whereas I the
said Thomas Stepkins on the 16th of
April, in the sixth year of Edward the Sixth,
have betaken eleren acres and
a half of marsh -land with all the
bank with tlie foreland and soil,
down to the |pw- water mark of the river of
Thames that he shouid notation
or assign the said lease or term of years,
without the special license or consent
Now know ye, That I the said Tho«
mas Stepkins, for divers g(K>d causes
give leave and licence to the said Marccllns
Ilall, to the right wonfliipful Mr.
deap of the ratlic^ral cliurcli of St;
Paul with the wall, ibreland or soil
under such covenants, as is reserved
ami containiHi '
Mr. IVilliatns. I would ask Mr. Danistcr
something about this d«e(! ; hiok upon it. Sir.
AiL Gen. We have not done \\\\\\ turn yet.
Pray take tliat deed out of his hand.
Serj. Vcmberton. You will let him give 50mc
account of it first, Mr. Attorney.
Ait, Gen. You wimld fain <yjnfound him.
Siirj. Fembcrton. He is coni'uuniied «:'nou(j;h
^reaily.
Sal. Gen. Now, Mr. Ikinister, you have con-
sidered of it ; pray once iu*Mt: look upon the
deed again->-(uhi«h ht* diil,)-.\Vas that deed
one that you signc<l then or no ?
Banister. This is inv nuuie, hut I rnmint
find the date of this dr<;(i in my pH|ior. 1 t^an-
Qot tell now wlifther it Ik^ohc I foiuidthcn or no.
Soi. Gen, I^id you si-x your Itnnd to any
deeds that were found tlierc, which you did
not set down in your paper ?
Jiunisitr. No, not that I know Qt^ I do not
know I did.
L. C. J. Prythee where didst thou set thy
hand to that deed ?
IkiHiiler. I set my hand to the deeds that
were found there at the bouae.
L. C. J. Did you set yonr hand t» bom else
M wkm WOK ftiBid tkot r
Bmnuier, I hare wtt hry hand to direift
^s beside^ but they «re none of thoK deeds
thai are in mv paper.
L. C. J. Where did you Ml your hand to
any deeds besides?
BonAsfer. Toditen fleeda i ha«« Ml my
hand at home.
L. C.J. Hare yon to any reklingtoihe
httds in question f
Bttnisier. I do not know thai I have srtny
hand to any deeds ndalii^ to the lands is
question, but att Mr. Knowles's.
L.C.J. To what pui|i08e did yon set year
hand and name to die deeds yoa Ibond tt
Knowles's.
Banister. To the same intoil to tastUy tbt
I was at the finding of them.
L. C. J. To what eiid dkl yoa ssl yoor
hand to any other deeds ?
Banister. To the intent that i kaew bsMsr
where the hmds did lie than she dkl ; adi
when uiy lady found any deeds, 1 set my lint
to them, and then found the places whoe ibt
lands lay.
L, C. J. Thou hast had a fair time to ooaa-
der of that deed; canst thou seeheretovtot
place that deed relates, by this mark?
Banister. 1 cannot find the date of thedcd
in my paper.
L. C. J. But where do yoa thmk yoo M
put yonr name to that deed ?
Banister. I cannot tell whether I did it it
that time or no ; but this ia my name.
L. C. J. I know thy name la there, wu; I
read it two houra ag^o : but did yon putjfstf
hand to that as one ot the deeds that you Im
in September, 1682, when you were at Mr.
Knoi%les's or not? — Banister. I cannot leU.
L. C. J. Dost thou believe thou didst not?
Banixfer. I cannot tell.
L. C. J. Canst thou tell the reason iky
thou didst s(>t (hy hand to it ?
Bttnisttr. Certainly because I was atdtt
iin^ioflf of it ; 1 know no otherwise.
S^rj. Ptmberton. Now pray look upon thi»
deed (shewing him another) and see whrfkff
that Ik> your name or not ?
Banister. Yes, my lord, I will.
Hferj. Fcmberton. is that your nanieP '
Banister, Yes, it is ; this is one of tbe diM
that was found at Mr. Knowlea's.
StTJ. Fimbcrion. You said so as to the cA«
two.
Att. Gen. But he was not so positive is it
Banister. This is rat-eaten, and so I kijj
it again ; and there is a rat -eaten deed •■ *
down in my pn[>€r.
L. C. J. liCt him be as positive as beVPi
lie has licexi forsworn five times.
Sot. Grn. He wis cenfbimdcfl witba**^
take of the deeds, he having set his hand to i*
many.
I^ C. J. They are perjured both of ibtft
plainly ; that is the trum of the matter.
Ait. Gen, I hope the folly of our wUuiB*.
in such circnmstonces, shall not rob us of itf
own hud, and that tt sppenrs to bs pUaly*
iTBTBiJdJ^ 96 CMA^hW n. l6U^forgf€tdniti4(fSJ^^ [50O
God forbid bat yon should hare
lai ; hut by the ^race of God, if I
JOB tball never hsTc a foot of land
ing and perjory.
tfjtt. WheB did you And tbat deed?
The 16tl» of 88|iteinber.
mi. Where?
In the f|;arret at Mr. Knowles's.
mu. Are you sure of it ?
Yea, I am sure of that deed, be-
at-eaten.
MJM. Knowles, pray, do you look
at my you to that deed ?
This IS mv hand, and this is one
I that was round there at that time.
iawa. Pray read the date of that
ids.] * TBis indenture, made the
if November, in the 2d and 3d years
ind Mary *
thertOH. That is a'^Wl from Mar-
to Roper y how AioCld that come
LOwles^sP |#
Thev have sworn it. ''
u Tney go about to blemish dur
0 fbUy of our witnesses, which we
I, lYe however leave the deeds to
ad let tHem see if those seals and
a look like counterfeit.
Well, go on, the jury will have
rhb them.
k My lord, we did before prod dee
ice from Richard HiU to Stepkins.
Dt there, that oonveyanee had no
itf mi ; thereupon there was a fine
ry by the heir of Hill ; and what
of that, will appear by tho
lida * This indenture made the
of November, in the Hth and 6th
lie raigns of our sovereign lord and
lip and Marv, by the grace of God
qurcQ of Enfi^and, Spain, France,
Stcilies, Jerusalem, aiiu Ireland, de-
r the fhith ; arch-dukes of Austria,
' Bttqp[undy, MiUan and Brabant ;
'JIaspunr, FUmdeTsaiHlTvrol : he-
lper Hill, son and heir ot Richar<l
i citixen and merrer of Ix)n(lon, of
Mty ; and Machc^Hne Stt^pkins, late
eseeotrix of the last will and testa-
rhofnas Stepkins, . and
pkino, son and heir apparent of the
■no, of the other |>arty, witnesseth,
■CM tbe said Richard Hill, father of
iMpor amounting in the
I mm of 3,000/. by the
And where
concerning all that parcel
untu St. Kathe-
HihdM nid Richard Hill bought
IktVuidevdelf for the
jjtjfcnt Wapping-marsh, the saki
*>^ itaMlo boimd in an obligation
Afifttf that he should make by a
'-djji^ onre, sufficient, inde-
'• ••^HiA in all those parcels of
' marrii-land, \ymfC ^^ Wapping-marsb ; thai
< is to say, all tnat with six acres
' of marsh, now in thetennre or occupation of
* one Kuevett, or his assigns, and all those
' lying in the east and in
' the tenure of one Miller; that is to say, all
* the bank,- containing by estimation three acres
' and an half; and idl those next acyoining, by
< measure six acres or more and two
* acres by- estinmtion of measure lying in the
* bottom of the Lynches, and reacheih firom
< the Lynches to the island by the pond ; and
< also tnat parcel diviiled into twain
* six acres; and also that holds
< in his own hands ; that is to sav, all that
* parcel with the island and pond,
' containing by estimation of measure, five
< acres and- of, and in all those parcels
< lying on the west side of the [lond, containing
* in the whole sixteen acres by
< measure ; all which said sixteen acres
« to Oravel-lane, the said Robert -Hill had in
< his own occupation reaching
* to Gravel- lane, sometime plowed' and sown
< by one Richard Clayton, and now in the oc-
< cupation of one Cooper, butcher, and lyug
* on the east side of Gravd-lane towards Lon-
< don fields, which was conveyed to him from
< one Richard Tyrrell ; and also all that marsh
< in the tennre of one Clayton, butcher^
' one William Connd, butcher, seventeen acres
< and of Edward Ash, four acres ; and
* also all the lands, tenements,, rents, houses,
< ponds, fishings, mills, to the
* low- water-mark of the river Thames, and all
< trees For the appeasing
* all variances and suits, the sud parties to this
< indenture have folly condescended and agreed
* in form foltowing ; that is to say, the said
< Jasper Hill, for the sum of 1,S00/. of lawful
* money of England, in which he acknowledg-
' eth himself to be truly indebted to the said
' Macheline and Jolm Stepkins, doth give,
< grant, bargain, sell to the said
< Macheline and John Stepkins all
< the sM marsh ground lying in Wapping-
< marsh, with all manner of lands, tenements
< forelands, ways, trees to
* tlie low- water- mark with the ap-
' purteiiances lying and bemg in
* without or elsewhere withm tlie parishes
' then* heirs and assigni for ever,
< all tlu^ right, title together with all
* evidences and writings . disciiarged
* of all former charcfes, incumbrances
* by the said Jasper Hill.'
Atl. Gen. Next we shall shew that Mar^
cellus Hall, tliat had this long lease, and had^
demised the seven acres down from Shadwell
to Itoper, doth on the 14th of November, in
the 5th and €th years of Philip and Mary, sur*
render the remaining tbtir acres to liiomat
Stepkins ; and then we sbiill shew it was de*
mistsl to Fox, who was the first builder and
made Fox's- lane.
Soi. Gen, Your lordship doth observe, thtt
the licence was to assign the wtioli de? «
591] STATE TRIALS, 36 Chaelbb U. IbSA^Tke Uig li^t TriaU [598
'luty reoorertothem
*' br writ of entry lur dineinn in Ic
« post, to be boil against thesaid Macbeline and
' John, before the queen's maiesty*a justioci
* of the Common-Pleas at Westminster, foi
' that time, bebg according to the use of fbrmei
'recoTeries pne hundred acres ol
' tiresh marsh, witliin the parishes, towns fields
' And it was fully agreed
< between the said parties, that the said reco-
« very sliould be tO the uses—'
3Ir. WiUiatnt, Mr. Banister, pray. Sir, look
upon this deed, and see whether your name
be to that deed or no F (Shewing bun the Sur-
render of Hall.^
Banister, This is my name.
Mr. Williams. Was Mr. Knowles's hand to
that cheed ?-^BanisUr. I cannot tell.
Sen. Fcmberton, Did not he and you pm
your hands together to it ?'
Banister, 1 did not make it, 1 did not foige it.
Serj. Pemberton. No, I donottliink yon did,
you have not brains to do it.
Mr. Williams, Where did you find that
deed ?
Serj. Pembertonm How came you to |»at your
hand to it ?
X. C, J. Is it one of the deeds of punduie?
Serj. Pemberton, Yes, it is ; and therdoie
we would know, since Mr. Knowlea*snamcists
it, how it came there.
X. C, J. Is it the surrender made by 3br^
cellus Hall to John Stepkins ?
Mr. Williams. Yes, my lord, it is.
X. C. J. Let me see it — ^liis name, I bdiere,
has been there.
Mr. Williams. Do you know any thin^ of the
rasing of it out? — Banister. No, not 1.
Mr. Williams, You, Knowlcs, were you st
tlie finding of tliat deed ?
Knowles, I set my hand to none but whit I
found.
X. C. J. But what do you say to that deed f
Knowlcs, I do not remember this deed at iD ;
I cannot say any thing to it.
X. C, J. Was your name to it ?
Knowlcs. Here is my name, but 1 do not
know who put it there.
X. C. J. Is that your writing, Banister ?
Banister. That on the backside is. ■
Mr. WiUiams. Look into your note, that yoo
may not out-run yourself. Why did you set
your hand to it ?
Banister, I suppose it was one of the decdi
found there.
Mr. Williams. How should it come there-
]t belonged to tne |iiirchaser. ,
Alt, Gen, Now we shall go to matter ot
record again. Richard Hill, it seems beAs«
tlie leuse made tu Murcellus Hall, entered iirt*
a reco<>^nizance in 4 £liz. this is cxteuded, sad
that will blicw it to be Kichard Hill's estate.
Mr. Powis. (Jan you object any forgery <*
reoordbi pray ?
Sol, Gen. IVay Sir, look upon that (to tt»
Wimess); where did you ezamuie that?
Witness. I examined this «l the RoUSi
acres and an half; hut he did assk^ but seven.
Clerk reads.] * This is dated on the 14th
* of November, in the 5th and 6th years of
* king Philip and queen Mary.
* lx> all whoni this presmt writing shall
' come ; I, Marcellus Hall, of Ratcliff, miller,
< send greeting in our Lord God everlasting.
* Whereas Thomas Stepkins hath by
' his indenture, dated the HOth day of April, in
* the 6th year of king Edward 6, let to me the
* said Marcellus Hall on the west aide
* * with the Thames wall thereto belou^-
< ing, wiih the foreland and soil tor
* one hundred and twenty and eight years :
* know ye tliat 1 the said Marcellus Hall, lor
* the sura of 30/. of good and lawful money of
* England in hand paid have
< by these presents remised, released, and ab-
< sdutely confirmed, to the said John Stepkins,
* Ills heirs, executors and assigns, all such
< estate, right, title, interest, term of years,
< estate, property, claim and demand, which I,
< or any person to my use, have, or ought to
« have, or at any time shall to have
^ in, or to four acres of marsh -ground, abut-
* ting east on the green bank, or way tlirougii,
* six acres l^ing up to Kateliff way, which
* way adjoineth to tne west side of the lands
* in the occupying of Roper ; which said lands
' was made over with the leave and Uccnee of
* the said Thomas Stepkins, to the right wor-
'- shipful for the term of nuiety-
* three years ; and west on the field, in tne
^ occupying of John north on the
* Lynches, and south of, in, or to
*■ the Thames wall abutting east
' on the south-west way, as aforesaid
* down fo the low- water- mark of the river of
' Thames So tliat neither I,
" ray executors or assigns, any right, claim,
* demand or
^ any pait thereof but from all
shall be utterly exclude and
' debarred for ever '
Att, Gen, Here is a fine levied, Quiu' Trin*
3 Eiiz. they had best ask where that was found
too! Is not that forged i*
[The Fine was read.]
Sol. Glh, Here is a recovery also, and a
ileed to lead the uses : in which recovery the
tenants vouch Jasiier Hill, who voucheth over
th% conomon vouchee.
[The Recovery was read.]
X. C. J. l^^d your deed to lead tlie uses.
Clerk reads.] *• This indcuture made the
' 12th day of May, in the fourth year of tlie
' reign ol our sovereign lady Elizabeth, by the
' grace of God, queen of England, France and
' Ireland ; defender of the faith, &cc. between
* Macheiine Stepkins of tlie
< one party, and Edward Buggin
*• Where it was concluded, fully condescended
' and agreed between the parties to this inden-
' turcy that they the said Edward Buggin
' should in thstena of th« Holy Tri-
TE TRIALS, 36 Charlks II. ] 684.— /or great Pari oj SkaiufeU. [504^^
w. Is it a true copy, upon your
». Itu.
nd it.
I is tested at Westminster, 17
And here is a . inquisition taken
il, in the same vcar.
We will reuif that . part of the
lat concenis our .jquestion ; for
i is only in question now. (It
Fas this produced at the former
Tiair
9y 1 think not io Michaelmas
lien we sliall shew an inqui&ition
ssion of Hewers.
The laud in question is every font
larsh; and that they must ac-
iy have no title to.
ns. Tiiis is an inquisition which
taken a commission of sewers,
icw Imw that cumes to lie in a
for it is the original inquisition,
■emaiu with the ulBccr.
The whole interest of the marsh
cfore it might well be lefl with us.
irton. Umier favour, good Mr.
h thinss should be kept by tlie
iminissioners.
How many trials has this been
Tton, With submission, my lord,
produce bfiu^ an original, may
le uiuler (^rcat suspicion, in re-
to be brought in by the ofHqcr,
idy it ought to remain.
mi. It is not a thiug of bare in-
I party and partv, but a thing
tiic public, and therefore .shouM
the officer's ciKKMly.
«ad it dc bene em.; let us sec
My lord, I would osk IMr. Sulton
ironuied and read before the trial
is-termlaNt?
was produced in court twelve
^as it allowed as evidence t
a, constantly.
Pray rea<l \X.
m. Fray who has had it in kccp-
liie?
f lady Ivy brought it to me nmoiig
it first,
bead it.
Bi,] 'The verdict and present-
toe jurors, as well of all d('tects,
,. within the limits or
Wapphig, and Wuppinginaish
.mia to the mill at UHtclili; that
• fOth of December, nnTH> dom.
rthe 14th year of the queen's ma-
itketnow is.
■ of the treeholders within Wnp-
fWn^ the number uf ucres con-
A the fail) marsh, with all the
' ithereof.
* First John Stepkins, gent, freeholder, for a '
'parcel containing' twenty -two acres, in the
* tenure of Uichurd £w Benedict
* Gent.
Ati. Gen. You may skip over a great dcol
and read only that which conduces to the qnr%- '
lion.
Clerk. No one can read it very well, I think.
(Reads) * On the west sideofCiraveMauef con- *
* taining 68 acres'— Is that it ?
Att. Gen, No, go to the tast sttie.
Clerk reads.] • Freeholders ; one paiwl eon-
* taining ten acres, in the tenure of John KodgcS
* and John Gee, John Stcjihins, gem. t'^o par- '
*' eels, containing twenty acres, in iho iciiiirA
* of Jphn Cooper, and John Hardiufri John
* Hlepkins, gent. One parcel, cnntaiiiuig four
* acres, in flie tenure of JoUu Stepkins. One
' parcel, coutaiifing twelve acres, in tlie tenure
* of John Roger James, fieehobier.
* Two i»arccl8, conUining^ six acivs, Robert
* Hemmings arfd John Su>]»kins. One parcel,
*' containing one acre and ah half, R(t;hard
^ Roper. One parcel, containing six acres, in
* the tenure of Richard Roprr.
* Atl which parcels be on thn cast part of
* Gravel-lane, containing sixty acjcs.' Then
here is somewhat interiiiietl and struck out
again.
Mr. Williams. This doth not concern the
church.
Ac. Gen. No more it doth not, as you say,
indeed ; for they cannot claim any of t&c
nianKh. Now we shall .shew a warrant three
yeare after, from the commissioners to surrey.
Clerk reads.] This is dated the 18th of July,
in tile ITtli year of the most prosperous Vi'igu
ol'our sovereign lady ElizaUnh, by the grace
of (;od, 6cc. And i\ is directed
* To our well beloved J<ihn Stepkins and
* John Osboni, surveyors. Where;!s,lheqnei»:i*s
* majesty by a commist^ion o'. si'WA-rs, l-aring
* date j!.« 23d day of Apr:!, in tliC >(«?• of
' her reign ; huth outlinii:ol n? to Fi:r\cy and
'view fn:n l*utl'>lphs-uhi\rl by
* St. Katherine\s, mar t'.- Tow* r of i/jndou
' unt.) Katrliir-miii not
' only to eonsi«ler of ilif? (1.im\s and ruins of
* theVame, hut also to taki? dr.ler <» : the speedy
* repairing a> to n-i.r (li^-OtL^llons
* shall wem good ^\ e, there* ore,
* siifliciently informed of your wisdom air.l <lis-
* erelion, appoint you sur'uvors v.ill t!;r
* and commanding you. by virt-.ie of tlio s.iul
* commission to siv u hether ;li..' wdi k
' be nccomplislud ai'CorIin.r to MH'h
* onlinances anri decrer*s as \^v have ajij'«,:ht»-d,
'and from time to tim»r i;h:dl make and an- '
* point ; and to see wLo
* we have made ex pen di tor for stirh sru:^ of
* money for the payment or\*«okini ii
* may by y<mr warrain bf dis'.niMjl ^tnd payed
' aeeonluigfy ; and fuMJicr, vo give >uu p<iwet
* and aiithUriJy to gi^j to pnn iHe
' for a eon r^jel Lilt ' and salary, t-i rr^i-
' sonah'.o prit-vs, :•]! vo:!:u>ea b-jJi-.. Ir:;h-
* ters, carts, c:i:ii?jf"'f, trtf*--*, | -.«=
fe
583] STATE TRIALS, $6 Charle* XL iSU^—The Ladtf /ryV Trimt, [599 J
Mr. Wiiifams, I know not «rlk%t TOii fbifsj
or do Dot forge ; pray read it, let m i
I
an to your f^od tliscretion ihaH
feein mi^ ; and for your bo doing, Uiia shall
\o\\T satBcierit \varr»ml,*
Ait. Gin. U e ihall now go a step fartJier,
UK I opencni ia the iM'ginnitiGt, and diew iliat
thin 1V8R inorl|^avr*^ ^y^^I»^'*ns to lli^ queen,
and 0 fine was leiieil upon tuat uiort|^v,
CUrk rends,! ♦ This iudeuuine made I he 4lh
' 4«y i»f June, 10 ihe loth year of the rei^^n of
•our ao^cieicn lady EHzaheth, *5ce. bolweeti
* the rl^IithotiiHiraldesir Wdliatn Cecil, knighr,
* lonl Burleigh, end lurd high treasurer ol
' England ; the rie;ht honoumbte and
•-oaeoi her Kighnesi»^s iimsit honauraUle pri?y-
* council ; sir Gilbeil CienmJ, ktii^Ut, her ma-
*jfsly's fcUorney ' g^neml^ for and on bebajf of
* the que<.'irs majesty ^ and to her use, of the
' one j>arty» and John Stepkios
* Whereak Williara i*at one of the tellers
* at and iij»on the deiern>inaHoQ of
* kifi accounf^ made and ended at the 25th day
' of Deceinher ii indehleU in the
*■ fum of 7,92a/. 71. lid. ob. ' And
^whereas our said sai erei;4n lady the queeu
* the 16th day of June, ui the
* 9tb y«»r of her reitfii, halli rouimanded ihe
* said sir William Cei.il sir Gilbert
* Gerar<l» and sir Tbouias Bromly
"o tuketirder IVfiin time to time
t'ith so many of the debts owin^, or that after
ihould be owin^ and for the sure
_ 'payment and contcntation of theaaid sum of
* 7,928/. 7i, 11 J. ob. roreuanteth
* with them the said tliat he the
'said Juhn Ktepkins, hii lielrs, exetutors
* shall und mM not only satisfy and
* |»y the said stun into the receipt aforesaid
* but aliio ffir the better settlement
* shah and will make, and
* cause to be made by one fine in
* good ibrni of law of, and in one
* close within the parish
* tuanor of Yewel and one jfieat garden
* And of^ and in one It^ocmcnl, v/'wh
* the appurtenances in now in the uc-
* cupalion of John Stout ; and 19 acrt?s of
' meadow in \Vajipinar-mnr?ih, parcel of the
- laid njajior Richard Roper/
Att. Gen. Where is the copy of the fine ?
Sutton, Here.
Chrk reads.] * This ia the final concord, &c.
* Mens- Mich. 14 Eliz/
Sot. Of ft. This WHS afler wards re- granted
from Ihe crown ; and there is the re- jf rant,
(Which beinjj under the (jrcat seal, and
listed e Julii, Anno 7 Jacobi UeKts, w«s i-ead.)
Att, Gen, l\rt of tliiji man>K uaa by our
ancestor cooveyeil to one East,
L. C, /, Ay, I haie the note of such a con-
vey agc^ m njy notes of the last IrUl.
Att, Gta. itlx, 8uttau, i& Uiat a true copy ?
SuttoH. Ye«, it is.
Mr, WiUmmi. A copy of what? Where did
you examiuc it» 8ir ?
istUdn^. At the Uidls Chapel.
Att^ O^n, lti«:adee<l enrolled, -Anti 1 hope
%i>u do itot think tk« record id furg«d, Mj
niilutuiJL
what tt is.
(The copy of a deed enroU^.d^ dated 27 Jaly,
3 Eli/, Man read.)
L, C. J. Then the next ihinif that v**" prft*
duced, was a b<i»d| daleil the ^5th of .tantiAr?,
4 Eli z. wherein 8t('pkin?>: w
who was admitustnitnr oi
upon theiTCO£fQi£ane(vof lii.ii(> nmu
Alt. Gen, We did so, my brd ; but tbil
we cannot now readily And, I tbtuk : hm
however in Spintdti*s diicharg'e,
Ulcrk. * This is signed by me Benedict $pi-
*■ nola, and daial tl» 25lh of Veh. 1561/
Att. Gen. Here i^ the bond , read the ooodi*
lion of it, lliougrh it is not materiaL
X. C. J, That is true ; but it was tt«d ibi
last time, 1 lind by my notes.
Clerk, This is a bond of 300/. • The eMuH-
* Uon of this obligation h such. That wliarsti
*■ one recof^nizance, made and entereil Uj Ri*
* charti Hill 3 Dec. in Uje 3'id v«f «*^
*■ the tate king Henry 8. taken and ackito^*
* ledged.'
Att. Gen. There is enough, for it makes aal
uU to the puqKise, but to coutirin the beli^ «f
our purchase. Here is also Jasper Hdrsr**
ceipt of the purchase- money.
CVerJ^ reads,] This is datcnl the 28th oi'h-
nnavy, in the i:iUi year of queen lili^^aUth.
* Be it known utito all men by these prcsoiU,
* that I Jasper Hill, of WornJey hate
* had bctbre the ensealing hereof, of "/
* and John8tepktD8 for th--
* of a certain statute th ' j w
* 1538/. of lawful raoneyofEnu il»a-
* tisfaction and payment ofallbu^^ |mmc««aM'
* moneys/
Att 'Gen. Then tlie 1 Gib of August, 13 J«-
cobi. Fox coorcyed to Jobti 8tepkiiis j tiut
that islcAat home.
L. C. /. Wei It then there is an end of ibit i
what do you «lo next ?
Att, den. We have done with our etideiice
by deeds and by record ^i, and now we shait conns
to our evidence by witnesses, viva pocf, Asd
lirst we shaU liegin with M r. Know les ; who trilt
prove the value of the land by the remti,
Hiid particularly what the renu are of I>erHUck
Hills.
L Ci J. Prove what you will,
Att, Gen. Mr. Knowles, have you re<?w»ttl
the Oean^s rents ?
Knuwtcs. For the use of Mr, Neale I Uawp.
Ati, Gen, What are the rents of the east iidi
of */ock-hill? — Knennies, About 100/. a v«ir,
Soi. Gen. Uhat are they?
Kfwwles. Houses.
Att, Gen, AllhousetF
Kntw/iM. St»me hounes, some ground -i
Att, Gen, What is^ the rack-rent ?
Kmmkx, AlKJUt 100/, a yc.'jr.
Mr. Wtltiams, Which boufcs da yi>u *pr
of, Mr, Know les f
Knowki, On the east -aide of Cock-hiU»
Ait. Ctn, Do you kuow the Ly Debts?
t
^iw]
4
STATE Til lALS, 36 Ch aelis II. 1 684.— /«r great Pari p/ SkadmlL [598
Hughei, Yes, Sir. thai I did.
Att. Gen. Howftif diilthcmarsli-groiindgfof
Hughes. To Cock -hill enslward, as for as
the hiuiid bridge ; xve^tward, as far as FoxeV
Lune.
Aft. Gen. Was all that marsh -^roiin4?
Hti^Uex. Therivrr of Thames did How round
about itf aod thet-c ivcrc; bogs, trees and bushes,
and such thinii^s,
ScTJ. Ltttwich. Did you know the pltec
whm'e Rati: lift' mill ^Utoti'?
Htifhes, Accordiug t<i refwirl T did.
Serj, Ltttwich. Ay, where was that?
Hu^hei. Just at bcll-wlKirt
Herj. Lutwich. Ujjon which Ride of <^i
liill ?— Hughes, In Shudwdi Haml^
Att. Gen, Thai is nght,
Mr* Powit. Was thut like the atber end rf
the luarslt ?
Hutches, The river c^me in there whotly.
Herj, Lhtwich. At high tlowi does the water
come ill there at this timef
Hughes, It did at every tide high and low
formerly, uow it is damM up.
L. C. J. Did the tide come up to that yott
call Foxe's-lane ? — Hu^hfu. Yes.
L. C. J. Then that makes an end of ib«
question : it cannot be as yon say.
Ait. Gen, How so, my lord r
L. C. J. How could it be an overshot- mill f
How could the iiiiU be turned but with the
tide ?
Jtt. Gen, Tbeir evidence makes it appear
buch by the leaden troutjh, which i$j nn instra-
tuent t>eloQg^nGf only to an over«hot-iuill ?
L, C. J. Tell not me of the leaden troui^b,
Mr. Attorney ; look you upon the survey yoa
produced, and take notice of the last parat^niph,
and tliere you will find tlte words, ' Prox' ud-
^jacent' cuidaui tenemento,* iScc. what wakt
you of that ?
Ati. Gen. Prayf my lord^ let it be read.
L. C. /. I uill in the mean time ask your
witness a question. Friend, thou seeiiiest to
be a man that understands somethini^. Thou
sayest FoxeVlaue was a hank befure it wa«
buik, and the tide before that time rame up t<*
that hank, both high and low. Now suppose
there Irad be^^n a mill in that ground, liuw
should it have been driven?
Hugh€$, I will tell your honour: My lord,
by rejiort, and I suppose it may be true, the mill
stood all the tide ot tlood, and when the flood
was at high water » there was a dam tvhicli kept
it iu, awl it went out again at ebb-tide, and so
the mill was drove.
L, C, J. There ia your overshot- mill goo«
then, Mr. Attorney.
Ati. Gin. If ever aeven 4if eight acres of
ground can be tlie appurteuances of a titill, I
Khould much wonder,
L. C. J. Mr. Attorney, I cun ti U you of a
luill over ajununst this fJuce, which i myself^
and we all can remember. Ati the estate utioul
it was ia the Traps family, he was a j^euijemaii
of our boufte \ all the water that drives that mill*
Mid twa or three miili that ierT* Uut fid^ oi
dti* O^M* Who roc4^ives llie rents of that
IHMbA f *- Kmtmftes, M r . N calc did ,
n i%e you received the rents of
., for Mr. Ncale I have.
t '(♦iie three toy ether, what are
^> —J /^/wuw/Vfr About !^t)00/. a year.
hi Grm. All this the church of Paul's
la^ besulcs tlie lands m question.
If r< ll^i^liaiiif. You say that [lart ia worth
mLMfrnFf-^Knavtei, Yea.
I Se^. Strimger* Uow much land might it
K^mria, It is a mtuter of the length of the
L C* X And how broad i% it ?
Etaor/es. Not very broad.
iU. Qtn* Now then to come to the lands in
pvliaa I do you know Mariner's-ttreet ?
Kmmin. Yes.
Ml, Gtm. Who is ia possession of that, and
»*if«s llie fcoti of it ? — Know let, Mr. Nealc.
iH, Ora. Wkatiay ]f<ou to Griffin's-alley ?
Kmmin, Home of it is in mortgage ; Mr.
Btaglon kail it, but tor Mr. Neale's use.
ilt.Gai. What say you to the water-
immia. That Mr. Nealo himself has.
AuMcM, The«e are the thiogi* in question ;
••lia know that which is called New ?
ktmttt. That is Mr, Meale^s too,
StLthm, Our lease of l'^8 years expired but
J k thtymr 15iK) ; and we could not come at it
(tilm, ttAd we had it not till 1682 , and that
BnscfKb liieir )>Obsesi>iofi.
Jtt. Gen, Now we shall call our witnesses
[liprofe it manh'ground. Swear Thomas
[fliq[W. (VYhicli was doae.)^Po you know
l^wm^-m%r%U?— Hushes, Yes.
M Sen, De you know the hotues in
fit
JUt, Gem* Do you know Cock hill?
ZZs|irj. Yes.
AU. Gem. Do you know Foxe^s laoe ?
Bti§kM. Yea i I diil ksow it before it was
you
". '>''>iiseflf
.>«» now in suit for f
. w long^ hare you known them ?
uc-re was no houses when I knew
Alt Otm, Di«l you know the houses that lay
m tfe<^rt tj^f o^ Fore's- iaxsef
lib ^^es there?
4^ i know auy houses there
H^fSa. I lusow not what you mean.
Mi, Otm, I ttsk jrOm igain, do you know
Bmakn, Ym \ li waft a hutk liefbre it was
I /Mr. tki you know the Lynchea?
l£ta. Nay I let iia4«k hut one at once,
^w 1 win aek too a plain question ; did
KlofWllMniPili bcibftitWM huiUupoo?
599J STATE TRIALS, 3(5 Charles IT- 1684.—/^^ Lady AyV TW»/,
tii« lido
ll
the riT«r, U t^keit in ai tlic tide comes in, and (
It pool id as he «avs by a lioin ; and when they 1
441^11 that, the mill turns bdck ag^iiti. Fot'l
would f^iii have uU these tliiiigft ihat seem io
be d^rkf cieared hy the way as they go. I wiU
iUppc^ nit the records you hare rrad to be
11 _ 'fiat tl ts railed Raich ff-MUl, and
th the 5Irl) bank, and the Uilly-baAk,
au V'Wav ; it is j»lain then, there was
a i.ir u lliUy 'h»j}k, or whatever you
cai! II, 11 'i (hut the thini^ DOW iti
3u<r«tic»ti is I > njioD your own evi*
eftOi% there ^i^^ Ti itii> ponds and ifutiijrs, aod
those things thai v**:re to saiiuly ibe mitt.
Tlrtn mid f'orileii to U* plucked down and the
pomls atidall Ibcsluit^es rome now to b« bitiU
upon : ihib \s uul like your marsh -pfitmud that
■^ n the western pai'tot the bank, hut it is a
irc'.'! oi' rneur^ or marsh, as the pond and the
r«*»t «tdh>d up by (hose ihin^* ^^^^^ ^^1 ^tich
time as the mill was taken away were rMcp-
tacles tiir to pen u^> the wutiM' that came in wiih
What ts the nDeaninc^ of llio^e troinis
I y tbat 1 spoke ot' hcfore, and the
iiuniK and orchoj'dii, and pondv^ and
and all lhrt^^• ibinjjs .'* Won Id you
h\s should alt |Miint to the aeite ot
'" "^h all the hoiindaries should
*' 1 end of the mill ?
_ . That M-aj* tlie reasnn why 1
askid hut now, iiow\}ti^. ilie whole waa?
L. i\ J. And ^viU, what you would have,
Mr. Attorney, a lUtaii Or two, ever anawer the
words iu the survey ?
Ait Gen. N«r will all their words ammmt
to divers e'osrs ol' ground, as this must maka
ia the^ whole.
Si*/. Gtn. Their t^venty atn'es elaewfaere an-
swers all ihcv can tiaitn.
L. C. J[ iiai this you yourself aay is the
perrickfe-hillH, in «he survey ; and you do take
It, as lw)on ui: the nuU wan pulled down iu one
flace, it \%x\9 «et up in another.
AtL (rat. Artcr he hud taken our lonj;- lease
ke cff^f ted one, we way, uwjn our ground ; for
he hdd pulled down the old tuill^ and lett that
to t .ii*iyr.
Sol, Grff, My hnl, it is plain, that the old
mill and the new mill were not Uj.on the same
ground, fVooi Caiter's lease*
LiCJ, Mr. 8jlicitor, you iad^eil agi^ee
•*' > s that it is plain, but aba Uhe
ti y*ry,
.'V.,, ., .,/. My lord, we do make our
ar^unient U»r the delindsiol's title ss yow lord-
ship does .«;M)rt'ln-nd it. The biHiodaries to-
W4ifd:i thr eiu h made the mill and H^telifT-
Toini Thi Iitr that com oin^ lie VLH) acres,
Ihoigh it I . Utv the o aUr, is not ^he
tiiiU» und It Ik', tloU ho mut'h i^round
e.n btj r<Hkt»u« d to bi: land^ lie km ^^i off to iho
Hiili: it is thi' mdhtsdl'tliai is lhi'«*ai»t Umad.
L. C\ X ^o, it is the imH and liie aull-baok,
brother.
■K With submission, ny lord,
re ir«Ql4t
calM m
i) mere no Mil)»bauk iu any of tht
^ij. Majfnardr Not that 1
L, C\ J. At lh» peril oC ny
that, brother.
Serj. Mu^nard, Take it to be so as tow
lordship aays« that there is mention of a itdi*
bank, tkat cannot he east, fur it heth to a blii
pond.
L a X Good brother, let m tiot pzsllllii
which is as plain as ibat ifae stio shines, Tb
controversy is about ail tbe west part of FasnV
lane.
Aft, G<ra. Nottlia tbe€«n bound cfait«i
contend for.
L. C. J. Mr* Attorney* if you will motib
the point, I cannot help it, I asanre jrao 1 4t
not. Fray take notice of it, it is
acres in v*»ur act of parliament.
Alt. Gen Yet., my lord* 130
X. C. J. Now then tlie fast of your kyul hf
your own shewing is MiU-bank; tbe mtid
Mill-bank js the mill, whereas tbe west psfiif
hi. twaihertne's, so all your deeds aad tvomk
say ; hut the east (isrt iit the land is BliU-bik»
t^rj. Maynard. No, my lord, Katdiff-aB,
X, C, X But I say, Ay, brotb«r« Tbnbiv
broad doth Foae's-laoe eitend 1*
AtL Gen, tt is reckoned 3a foot in Carts'i
lease, 1 think.
h. C. X That if a le«se tbftt 1 pcrc^ire tlurs
is some eontrof ersy ahoat, tb«rei<it e 1 6o takm
much mind tbal; it is a perch ot land, I tbitk,
in some of your evidencrn.
Ait. Gen, Hbere FoaeVhui« b, is ibe te
acres that were aurrendered ; now tbal b«Bf
tbe wesi bound of tbe e&even acres, vthem fkm
are tbo other seven ?
L, C. J. Ue<d tlie deed^poR agmiii, tbe pir*
ticuhirs aud hounds only.
Clerk reads.] * All tbote my four-aii-
twenty acres and an ludf-*-*
Ati Gtn, The East bound your
sees is the mill ; now your lordsnip
objection, that if it were as we say, an
mill, it ciMild not have been driteti-^
L. C. J. Do not, pray, make ony silly «b-
jection for me, anil tlien think to aiwipcr it *
tell you I do say, that it is impos^lbte ti
conlti be any mii) there butatidi
tliifig is ns plain. Mr. Attorney, as
ID the world can be ; go on with yi*m at
dence.
ihl. Gen. Pray swear John Stmrndf.^
[Which was done.] — How long bare jPi
known tlie place in qnestioo f
Sitmcrtif. I have knowu it about 07 or H
years.
Ait, Gen, Do you know wlier^ tbo Bull
stood, or was reporttHl to stand ?
SomcrU/, I know ivhen* it was rapmlodlo
stand, but I never knew ih<r mill myairU^ it wis
demolished belbre my time.
AtL Gen, Where osait rtpoited to atatt^f
Somtrttj, As it was rt^ported it stood absil
ha)ftU« laotrtb of the hall tiff ibe bank, rater
leaning to tbe ritcf tyf Thames than tiM bigb>
way,
; All. Cm. Where waa tbe wy la lli«ttillf
I* SifmcHif, AlCock-Uai.
\
001] STATE TRIALS, 36 Charlbs II. 1684.—/^ great Pari 4^ Shadwell. [60S
L. C. J. Thai your own eridence iay was on
the West-side of the mill.
Att.Cen, Did you know Shadwell ?
S^merU. J know that that is called Shadwell.
Do you ineau the well ?
Att.Uen. Yes; how far is the well from
CucL-hill ?
Someriy. Half the length of the hall.
.Mr. l^Uliums. How far if it East of Foze's-
line.
Somtrly. Tnily I cannot well tell.
I. C. J. The question is, whether that be
ike well that is mentioned in the evidences ?
Somerli/, I never knew any other well ; I
pMlfor tilling' of it up.
Mr. WiUtamt. What was it? Was it not a
pood formerly ?
Someriu. It was a well.
Au. Oen. What was it called P
Somirfy, 8badwe11 it was called, I knew no
olber name it had ; and that well was wharfed
lUot, and there was a piece of woo<l about six
filot Umg put into it, and it was on the side of
Ae hill ; a oooner had it in his possession, and
he and to put nis hoops into it.
Au. Gen. Do you remember the ditch that
ran under the Lynches ?
Smerfy. I remember there was a ditch that
nn a Iodic ^>^y »• there were three or four
WBBioirerit.
Mr. WUiianu, Was that a wide ditch .^
SoHmUf. It had planks to go over, and it
VII ate ditch.
JiL Oau When yoa knew it, did cattle
W then f^Somerlif. Not io my time.
Soi, Gen, When you first knew that well,
Vli it reputed an ancient well ?
Somerljf. I knew it not till I came to buy it.
Att. Gen, What do you know of tlie raisin<r
tf Fa's lane?
Stmeri^, I lived there 26 years ago, and in
the time sinoe I lived in it, it is rai6i*d the
li^th ol' my stick and more : for when the
tide came in strong, it used to drive stones and
jkakm in at the windows. There was a water-
MK erected upon Wapping-wall, and thoy
*tic to lay pifNfs al»ng the street, but thoy
not lay them there, for they found ^r<>at
Att. Gen, How long have you known it ?
Hoimet. I have known the place a matter of
28 yean er more.
^tt. Gen, Did you know it before it waa
built ?
Holmes. No, 1 did not take notice of it, to say
notice.
Aft. Gen. Do YOU know that place that is
called Sliadwell ? — Holmn. No.
Sol. Gen. What do you know of the raising
of Fo.xVlane?
Holmes. 1 never did know of raising the lane.
Alt. Gen. Not at all .^ '
L. C. J. Was it not all the time you knew
it a common jmssage ?
Holmes. \ es, a common highway.
L. C. J. Shew, if you can, that there was
any highway from North to South, but Fox's*
lane.
Att. Gen. Do you know Cock-hill f
if o/wf 5. That is quite off from it.
L. C. J. Let me ask you a question. Sup-
pose yuu were togp tor the purpose from Shad-
well ilown to the river of Thames, ut>uld you
go to Cock-hill or Fox's lane ?
Holmes. If I had occasion to go down to
Pelican -stairs, then 1 would go to Fox*s-lane ;
but if I were to go to Bell- wharf, 1 would go to
Cock hill.
L. C.J. That is quite another way.
Sol. Gen. It is southward of Cock-hill,
where the mill stood.
Att. Gen. That adjoined just upon the way.
Sol. Gen. Doth not Cock-biU lead to the
Thames ?
Holmes. Cock- hill is the first beginning of
the gniutr down to Bell wharf.
Sol. Gen. Swear Eleanor Barefoot, and Mary
Day. [KI<»anor Barefoot was sworn.] Do you
know Fox's lane **
Barf /hot. \>s, 1 know it very well,
Att. Gen. How l(iiii«r have you known it?
Barefoot. Threrscore and almost six years.
Att. Oen. Tlici. you knew it before* it was
hvxxWJ-'Ban foot. Vcs.
Att. (ii n. Dili vo:i know the old mill ?
BaiiUMt. Who, Sir?
Att. Gtn. Do you remember who first built
of timber, and othL'r things in theground 1 thrre ?—Baretoor. I cannot tell
ihtt hindered it; and upon that they raised the
Mr. WiUiams. Was not there a dam made
■t the end of Fox's lane t4» keep out the tide ?
Smerfy. I never knew of any.
L. C J. Was not Fox's-lanc rejmtoil an aii-
Smeriif. I luppnee tlipy were continn<tlIy
fmilg h to raise it hi<rhcr and liiuiicr.
An. Gin. When you knew it lirst, \rM it
lUv than the marsh ?
aumerfy. It was all built when I cnin«.> thither.
ft^ii ■! yards higher at one cud than the
IM. Omn. Sw«»r John IIolroes.--[V/hi(!h
*■■ tot.}— Do YOU koow the houseN in
~^' ibeCwcca^M'^laBaandCock.hiU?
itt. Gen. Pi'Jiy, «heu you knew it first,
I what was it, and who's?
I BtirefofU. it was a marsh -gronnd from
I Cork iiillto FonniT's firld, it was counted and
: known tu Im> Mr. Sti|:Lins's ; he was u great
fretlioldt r, mid owner <»f all the ground up to
i Krisl-Sniiili(icUl.
I.. C.J. How? Why is not the Lynches
beiv\f(.-n Cock- hill and St. kutiitM-inefl?
. Bare/tkit. 'I'he upjut irrouiul vias only ba-
; lotiirini; to «ln^ doan'of St. l*;ii;rs.
I Js. C.J. l)i» you ii-imiiilKr that which ia
now- call ij r :\'.s lane:' — iiVi.:/.'o/. Yea.
L. C. J. ^^ as it a lain* at that time ?
.V> infiHit. YfS, il u:is.
Att. (iiu i>i» ,\ oil ri -meinlicr faoir the wmter
can»r III il.iiT .' — fiiiff-ot. \ <a,
Att. Ucn. Did il coma up to the bank f
603J STATE TRIALS, 36 Chahles
Barefoot, At high tides it cmme o? er, to that
Fjioae eoul<^ pais.
L. C. J, But at comraon tides ?
Bttrtfoot. It came at corntnoD tides till it ua^
HiBed/
L. C, X Dut it was an usual passage for carta
Dd carriages ? — Barefoot, V«s,
Ait. Gen. How was the mill drrvea that was
Barefoot. There was a mill in my time that
^ent with the tide, and all the water that came
Dwn from that mill canie into a jmndj and so
I the mltl'dam, and so diorethis mill.
L. C. J. Which mtll dost thou speak of?
^idst thou kuow RatcSitf-Mill?
Ait. Gen. Did you know Cock-hill mil) ?
• Barefoot, Yea, that I speak of.
L. C. J, And how was it driven, dost thou
Bartfoat. It was driven by the water that
ime mm! the river in a i^luice,
X. C. J. It came out ot the Thames P
Barpoot, Yes ; with the tide.
L. C.J, Huvr didil run?
Barefoot, it had a great hu^ sluice.
Mr. IViiliarm. Was that in tlic Lynch -ditch,
r other way ? — Barefoot. It ran into a pond.
Ait. Gen. Where did that pond stand ?
Barefoot, In New Gravel lane,
Att.Gtn, Where was Hie head of the jKJnd ?
Barefoot, It went out with the tide.
Blr. Williams. W here ?
Barefoot. Between the street and the miSt
Art. Gen. How near was the pnnd to Fojt's
Ian 2 ? — Bar (foot. A rpiartcr of a mile off.
Mr. Wiiluimi. West of Fox's lane.
Barefoot. Yes.
Ati.Gen. Do you know Green-bank?
Barefo&t. Yes*
Aft. Gen. l{<*vf far is ihat from Fox*s lane f
Bartfoot. Half a mile oft^
Att, Gen. Did vou know the well i*alled
Shadwell?— Bar^/(i?^ Yea, I did.
Sol. Gen. On which side of Fox'sOane did
Bhadwi-M stand ?
Bare foot. It was between the mill and
Bri>ad- Bridge ; eastwaixi of Broad -bridjnfe.
Ait. Gen. How far was it from the mill?
Bttrefout, X pretty way.
Att.Gen, How tar do you think?
Barefoot. About 40 or 60 foot : the well was
between the miH» 1 say, and Broad-bridge;
Fox*s4ane stood west,
L. C,J. When you knew Fox's lane first,
ivhat was It between I he Lynches oq the north,
and the Thames on the south ?
Barefoot. A place for carts and horses to go.
Alt. Gen* And yon say it w.ns all marsh-
ground from Cock- hill to Hi. Katherines ?
Bartfoot. Yes, it was all a 16 w ground,
Att. Gen. Whose ground was it counted to
be ?-^BarefQot. Mr. 8tepkins*s.
Att. Gen^ Had the dean «Fer any thing to
do there ?
Barefoot, The upper ground was the dean of
Patd*B, but the lower-grouud ivaa Mr. Step*
IL l6Si.— TO^ Ladif %*i Trieh
Mr, WiUiams. Was tliere a faridg<r prtt I
Ly nch-ditch at llie' end of Poat^t huie ?
Barefoot, There was a brid^ and a cm-
war.
L, C. J, Do you know it was marsh- grouoil
on the eAst side of Fox's lane ? Did it ever im
under water ?
Barefoot. At high tides and such as thai it
was overflowed.
L. C. J. But at common tide* did it use t»
go over Fox's lamr ?
Barefoot. I cannot tell that truly, it is oan
raised very high, it was much lower ; but 1 toi
isure the tide sometimes C4imc beyood.
Att. Gen, When I lie waiev w"as in the ^ani
pood, did not it come by the Lynch ditch f
Barefoot. It came out o( the Thames. i
L. C, /. Do you remember any way tliit
led up to the Lynches by tlie well ?
Barefo^U, The Lynches did not belong ti
Mr. Stepkins ; thtre was the milL
L. C. J. But answer me, was there aay wiy
that went up to the Lynches by the well f
Barefoot, There was oo I'.rasage to p
through but at FoA^s-lane.
Att. Gtn. W OS there not m way at Coeb
hill ? ^
L. C, J, That is farther esat than the mill*
Att. Gen. Shadwell is the bounds of W
land.
L. C, J. But where is that ? That if thr
question, Mr. Attorney. I remember wbattbt
woman said indeed the last time, if there wrre
as many wells as there were panes in tlieglMi*
window here, tliat was the hji^lit well. M
that will not decide the controversy.
Ait. Gen, Swear Austin Cope. [Whieii
was done.l Do you know Cock-hiU ?
Cope. Yes, I do.
Alt, Gen* Did you Dot know a tmll thai wu
at Ratcliff?
Cope. There was one at BeJI-whatC
L. C. J. How long ago is it, (bat yoa i^
member it?
Cope. Threescore years ago.
L.C. J. How was that mdl driven T
Cope. With the tide.
Att, Gen. Where did the tide come in F
Cope, At Frying* pan stairs.
Att. Gen* VVhither did it go ?
Cope, It went into the dam, and so drove the
mill. Th«re was an Iron-mill built by qo«
White twenty years aAer.
L.C. J. How far did the tide go ttp from
Ratclilf mill westward ?
Att. Gttn, As near as you can rememberi
what was it that stopped the tide ?
L C. J. Ay, how far did the tide go
it stopped ?
Cope, Almost as far as New Gravel-lane.
L, C. J, Did the tide come up as ^ *l
Fox'alane?
Cope. U flowed over at some lidet.
L. C. J. What did it at usual and
and ordinary tides ?
Cope. It never came so high.
Attn Gin* How high did it cOida t^cnf
I irwa
*mber| ^
ne. ^
B TRIALS, 36 Charles IL iGZl^far greiti Pmi of ShaiweU. [609
WilcuDe.
In forty foot upon reasonable
od did tbiit help to turn this mill P
it went to tne dam, and so it
ere was your way from north to
At Fox's-lane.
Fas there a bridge diere, over
rts went into the lane, under
ar did run?
here was.
al is it that lies beyond the miU ?
ff-town.
lich was further eastward, Cock-
?— (W. Cock-hill,
it is oy your own map ; and
A the mill-bank be but Fox's-
hadwell b our bounds,
bin Hood upon Greendale stood ;
must be your land : that is all
[ can make of it. Your boun-
ie it as plain as the nose in a
Swear Mr. Holwell.— [Which
low long have you known this
s in question ?
©▼e a year.
is your surveyor, I think.
le is so, my lord. Pray, you
'ay did the water go ?
Nrard.
It which way did you use to go
m the Lynches ?
nnetimei went the lower way,
• the higher way.
Itch was the higher way f
iff- Highway.
d which was the lower way ?
Qffh Wappiug and Shadwell:
9 tower way.
boa talkest of the north -nest
m were to go directly from nortli
li way would you have gone ?
II C5ock-hill, or down Broad -
lereisthat?
nd Cock-hill.
lereabonts is it?
JB a little of Fox*6 hue.
ban you went dowu Cock-bill,
uhI «d you leave the mill ?
vcQt the lower way, I led the
fc-haiid.
01 when you went the higher
dk-hUI?
w« left the mill behiTMl us.
hit doit thou mean by behind
I left it north.
■t coald never be, man.
amij tord, he is right.
mr lie is not right, Mr. At-
•MuBii north of the niill.
'^^''li^ do yoa know Fox's-lant ?
Att.Gen. It it raised P
Cope. Yes ; eight or nine foot
Ast. Gen. What was the reason of its bebg
raised?
Cope. It was not fitting for carts to go over.
L,C.J. Why so?
Cope, The water came upon it
Att. Gen. And then to come to the admea-
surement, taking in the place in question, it
makes just ISO acres^ wnich is our number,
and lio more.
L. C. J. Then you will leave the dean no-^
thing.
Ati. Gen. Yes, he has SOOO/. a-yeor.
L.C.J. Where?
Att. Gen. In the east, beyond this place.
L. C. J. Why, would you have any t>f tfie ««
land that belongs to the mUl ?
Ait. Gen. We daim this as marsh-lanSd;
which they have nothing to do with, and the
number of acres will not be answered without
it. Mr. Holwell, have you admeasured tiio
marsh ?— Ifo/. Yes ; I hive. Sir.
Att. Gen. From whence did you begin?
Hoi. From Hermitu^-Dock.
Att. Gen. Within what bounds?
Hoi. That which they call the Lyncheo and
the marsh to St Katherine's from the well ?
Att. Gen. And how much doth it mako?
»Hol. BeAdss the well and the Lynches, I
find it something above 130 acres.
L. C. J. Somewhat above, bow much pr'y-
thee ? — Hoi. Not an acre above,
Mr. Williatnt. Pray, Sir, how many acret
lies east of Gravel -lane ?
Uol. Besides the well and the Lynches; I
can make but fifty acres and an half
L. C. J. Where did you reckon up the
whole ?
Att. Gen. To make up the 130 acres, he
took in the mill and all.
L. C. J. That is very well.
Att. Gen. Why, my lord, it is no more than
ISO acres, and ho much we must have.
L. C. J. liook into the survey that you proi'
duced, and see what that says ;* besides all —
Att. Gen. Those lie eastward of the mill.
L. C. J. Pray, did you measure the wall ?
Hoi. Wapping wall is 20 acres.
Att. Gen. If they will consent, the jury
shall have the survey with them.
Mr. Williams. With all our hearts, let them
have it.
L. C. J. Gentlemen, both sides consent, you
shall have the survey with you ; but witliout
that consent you could not have had it, it not
being under seal.
Att, Gen. Then we desire our last verdict
mav be read. Mr. Sutton, was it a verdict upon
fulf evidence ? — Sutton. Tes, ^.
Att. Gen. How many houn did it last ?
Sutton. Five or six.
Att. Gen. Was there aview in it?
Sutton. There was so.
L. C. J. Read it (Which was done). Mr.
Holwell, how much, pray, is the land between
Fox*s-lane and the mill r. '
Sou
e07J STATE TRIALS. 3S Chablbb
Hoi. Below the hywhtt I find h to be
•c?eD acres ((nd aa half.
X. C. J. Can you expect then that all those
words of gardens, orchards, dice, should be an-
swered under seTon acres and an half ? Be-
sides, the first and aneient resenration of rent
was iO/. a-vear ; after, it was increased to 16/.
a -year, and it doth appear the mill turned to so
litile account, that it was pulled down, and so
the land was to acswcr the rent ; which, for a
Tound-rent upon a church-lease, in those
ays, was rerv great Have you done now ?
Att. Oen. We have done for the present,
my lord.
L, C. /. What say you to it then for the
plaintifi^ geuUeiuen ?
feleg. Stringer, May it please your lordship,
and you gentlemen of the jury ; if we should
five no further evidence at uU than what wc
ave already* giveu, but leave it upon this, 1
dare aifirm it plaiuly appears that they have
no title at all to this laud. As to their last
piece of evideuoe i would first give an answer
to that, aud that is theu verdict ; and that
which I would obsen e upon it, and say to it, is
this ; it was a verdict obtained upou forged
deeds : deeds found, as is pretended, and us
you have heard from their two special wit-
nesses, in a very extraordinary manner, found
in a ffarret But bv what art prepared, and
that tliey are forged, 1 question not but we
shall give you satisfaction. But besides, as to
their iul measurement, it seems as they would
have it, 130 acres is the question about the ex-
tent of the marsh. So much they claim; and
we shall bring two surveyors tlial will give
you an account upon their oatlis, tliat between
Fox's lane, which we say is the west boundary
of our laud, aud the east of theirs, and Her-
mitage Duck, where the marsh ends, there is
above 130 acres ; and so they do not want
their number. For all the evidence that they
Lave given out of records, we agree them
to be as they say ; and by that agreement shall
do ourselves no barm at all, fur they all do
confirm our assertion. They place the eastern
hound of the marsh at Ratclift town ; now at
Fox's-Iane doth Katdiff-town begin. The art
has been to confound the cause by puzzling
boundaries, when it is a plain, apparent mis-
take they ruu upon ; and indeed I may very
well ba.y, a wilful one too. They would ha\e
us coniine ah tu a mill and a little ditch, when
there arc at least seven acres always enjoyed
with it, and all called the mill ; which had a
pond, gardens, orchards, tenements, Sec. And
now there are very large drains necessarily
made, to keep the water from annoying the in-
habitants, and to carry it away. But for a fur-
ther evidence of our title, we shall first prove,
that upon a bill exhibited in the £xche(|uer hv
Mr. Attorney General, against Stepkins then-
ancestor, to know what incroachuieuts hud
been made, what belonged to the dean of Paul's,
and what to Mr. Stepkins, are fully set out.
There it it proved, tliat the bounds of the marsh
were Wappiog-wall, aliai FuVlanc. Tlic
11. ifiSiw^IXe La^ I^$ TrM, [6fl
marsh was continually overflown with water
but now in our ground there was a great num
ditches and places to keep the walQr for Ui
service of the mill. When we came tn buil
upon our ground, whioh was 15 Jacubi, (then
began) then he brought an action, and di
pretend that we did iucroach the wall somt
what into the marsh ; there we had a %erdi(
upon a view, and after a non- suit u\toD full evi
dencc. There was likewise a bill exhibited i
chancery against St^^pkius the lather ; wiicivi
the bounds arc set forth, and he iu his answc
particularly enumerates the boundanes. An
It has been constmily the reputuiion of th
place, that this »as the dean's lands, surveve
as the dean's lands, sold in the hite tiuies c
usurpation as the dean's iau'ls. The tir^i lliiuj;
my lord, which tiiey produi'ed, and thai n*
did then, aud do now contnivert, is Curler':
lease : this, they say, was found iu the garret;
and they bring two v\imesses for it: hut boa
they have behaved themselves! What con-
fusiun there is in their evidence ! Von see^
L.C.J, Brother Stringer, if you havesnj
evidence to v:ive, pray give that drst, and lesie
your remarks till tlie last ; you fhall tbcu
i>ay what you will ; but tirbt give your eti-
deuce.
fcierj. Stringtr. My lord, wc shall panoe;
your direetioii : wc say, upon Fox's buildiig,
Stepkins surmising that the wall beloci;;«il tu
him, comes and brings an action uf ejeatnent
against Fox's tenants for this wall, and upon
trial the \enliet went a^^ahist him. Then tbere
was another action brought, and he was nmi-
suiied u(N»n that. Afterwards there wss a bilt
preferred against him, aud iu his answer he
Lonfesseth that his wall-marsh bounded apoa
Fu.\'s-bne. Uere arc the bill and autitrer.
(Whiih were read.)
As likewise copies of two reconls, ^mc in
the I'unimun -pleas; the other in the Kiu;V
hench.
Will. 12 Jacobi ejectment ; George BoswrHf
pbintiff> ugaiiist Thomas Fox, defendant; not
guiity, [ili<aded a verdict fur the defenddnt.
Mich. 1 1 Jacnhi, ejectment ; AVilliani Sorrd,
plaintifl', against Tho. Fox; Nutguilt^v pli'a<l^i
and the plaintiff becamo uousuit.
Sir John Ticvn: My lord, we have this fur-
ther piece of evidence ; we ha\e here a lt««
made by Slrpkiiis, of seven acres t»f Uu<l*»
westward of Fox's- lane, whicii di^idts tlie
mur^h from the mill ditches, and there is *
covenant, that if he recover any part of llw
w.\ll, iiidish-wuil, the tenant sha.1 liavetbe vU
vantage of it, uml increase his rent.
(Which lfta.se Iiuaiin;^ date, 10 Aug. 13 M
A. u. Itil.'S, was read.)
Mr. li'iliiarps. Tliis was in time betweeadit
non-smi and the VLiiiiel.
Srrj. iit-inger. My lord, as I did 0|ieB ^
there was an infoi malion exhibited by Mr. At-
torney Gen'iral Moy, 7 Car. 1, a^mt f'
I TRIALS, 36 Cm ABLES IL ifiSi^or greai Part of Shadwell. [610
%f ftod Ufioo tliat iiiforuiation
*oiri ' ■ * • t; - -PS, and all
ip I \ set out;
k.»... ^,.\ ^;> ,. a<i Cttu be.
^ to fterve d turn ; it was
ttlTo , itiii whisi that
► ^t u:c of ibe
|M*eteni"e of
rywi» brethrr. ihai cannut be
,ftnd I '^ Ml wby ; if
Qotion tv. ^ !dns Uim-
Ibtj purly unOiT wliom they
il were itvideoce ; bui it is
r '^ ■ \ and the teiitmts
] HupiMirt their
'< kni)w their
'his cannot
Wc wubniit It to yoa, my
IvUall oflTer you a survey. lu
lUm was pxp<^«*t'd to «tiJe as
d a stirvey inken^ titnl found
ice uf die dnu'ch of Paul's ;
9,5UO/. and cnjoyc^d by the
oration.
and to that very person
t say tliey had these leases
[iuced : that is, to Win-
itof Kuowlcs was, as he
mrh a lease, which then
if I iM-iiur uould he have
\t red to purchase
**>i ,,. . ,.,,.chi»
Here is the survey tlien
i oppose the reading of yotir
It Iia4 not any authority to
>Mf. Attorney, though there
': nutbority, yet such things
"1 allowed as evidence. You
f it was done ui the cage of
^-row, as they call it, White*
I let theoi read the commis-
l^e have none ; there were
eo of this oatiire, without
'seaK
did theiD by orders from
lit.
Dec. An. 1649.)
Now we wUl shew the deeds
\ was by deed enrolled.
An. Id50» for 9540/.
My lord, because they pre-
\t\ ^kffr ^Sitt tiiitt nf^ Ihf'Y call
V the
it we
: hut tirst here
;\ at»d Ley burn,
Liitl of it-— (Th<-y were
know thcj lkous«»iii
Mr. H'^Utiamt, How long bate yoo kiiovm
them?— ^fl/iirt^. Thirty yeara.
8erj, Ptmbcrton. l*ray, whiit is the com-
mon repuntion whose the lanrls were ?
hiand. k wa^ always taken to be the dean*s
lands.
Mr. WifUams. W[\o were tlie Icnants >
Bland. Mr. Whitwickand ilf. Wuiierhum,
L. C. /. Prithee, canst thou tell w hut was
taken to be the East boundary of Wapplog-
marsh ? — BlantL Foic's-lane,
L. C. J. Was that the reputation, upon yonr
oath, in all your time?
Bland. Yes» ever since I kt>ew it,
Mr. Williams. Bland, pravi do you know the
pond P
Bland, The ponds were filled up ; but there
were ditches in my time.
L. C J. How near were the ditches to Fox^s*
lane ? — Bland, Within ten foot.
Mr. Williams, What was the use of those
ditches ?
Bland. The water came in at Bell- wharf,
and R lied mi the ditches with the tide, and mt
it went hack again.
Serj. Stringer. Can you tell who purchased
these lauds of the state in thebtc times .^
Bland, Whitunckand Winlerhum,
8ir John Trecor, Swear Williara Kemp, and
Cortlett. (Which was done.)
Mr, Williams, Hark you, Mr. Curtlett, w«
would ask you a question. My lord» voor
lordship ob^rves, there is a well called Sliad-
wefl, thai .is at the East end of their marsh:
We shall shew where that well is : there was
a well very lately just by Wall-raarsh, bard by
the place where the church is now butlt, which
was called Shad well, and from which tbo
church has its name. Curtlett, do you know
Fo.\^8-|ane?— Cttrf/t(f. Yes, I do,
Mr. Wiiliomi, How long have you known it ?
Cur licit, I have knov^n it sL\ly years.
Mr. Williams. When you ftfiit knew ii> whost
land was it f
Curilcit. I am igTiorant of the ori^nal title,
or the denvBtive title, 1 know not whose it was,
oris.
8erj. Pemherton. But whose waa it reputed
to be? That we mean,
CurlktL Sometimes it was reputed Mrs,
Moor's, sometimes Winterbum^s, somctimei
OD^'s, sometimes another^s.
Mr. WillHimt, Do you remember the mill
that was iu this ground in question?
Cnrtled. Yes, very well.
Mr, WiUumn. How was thst mill ddven f
Curt If tt. The water came in at Uell- wharf.
Eastward, tmt of ih* Tlmiues, into the ponJ^
and so run beyond Brond bridge^ nnd vented
its<5lf into divers ditches ; and when the tide
went out, it returned back aguio« and employed
the mill.
Mr. Williums. How fur went the ditches ?
Curtktt, Somt.' of them to Fox's^ane ; and
one principal dttch turned up half way the
lane, that people were forted to have boiiidi aa4
planks to go over it.
2R
61 1 j STATE TRIALS, 36 Charles II. i6S4.— 7%e Lady /«y'« Trid,
[6If
JL.. C. J. Tli(? tiling; is very plain ; had it
been, asi they say, au overshot uiill, this pro-
vision that was maiie of water for it, for au^ht
I see, would have drowned all the ground
round about it.
CurtUtt. When I was a boy, we used to
swim in that place that was near Shadwell, in
tlie eddy \ there I have seen the water as it
went out, and the mill wrought with it as it
went back .'ipiiu.
Zi. C J. Was thei-e not a way, when you
know it first, fiom Nortli to South P
Curt let t. 1 cannot well tell.
Alt. Gen. Was there not a way fi*oni Rat-
difl- high- way, at Cock- hill, to the river of
Thames?
Curtielt. There was a common way for carts
and horses down to the Ballast- whart, and there
was a p-cat vacant place.
Att. Gen.VvsLy let me ask you, did you ever
bear these lands i-eputed to be Stepkins's when
yon knew them first •*
Curtlett. We have heard talk of that gentle^
Att. Gen. How long ago ?
CurtUtt. I have not heard of him this twenty
years.
Att. Gen. Have you above twenty years
igo?
Curtlett. If I did bear of him, 1 do not be-
lieve then it was in his possession ; 1 cannot
tell whose title is best: You have, I suppose,
both of you better witnesses than I, convey-
ances and deeds.
Att. Gtn. He is a wise witness, he will not
■wear whoso it is.
L. C. J. He is so, Mr. Attorney ; I wish
your's were so too.
Mr. Williams. l*ray, what was it lioyoud
Shadwdl, and how near was ^ihadwdl to
Marsh- wall.'
CurtUtt. ShadweU was on tlie further sido,
near Fax*s-lane.
»Ir. Williams. To the East or West of Fox's I ground,
Att. Gen. Did it rise very high ?
CurtUtt. It was out ol* the bigfa ground
where the church i« built.
Serj. Lutwich. Did you ever hear of any
well but what lay between Fax's-laae and the
mill ?
CurtUtt. Sir, 1 can xmly give an account
whci-e that wdl lies that was called Shsdwdly
whore the church is now.
Att. Gen. How many wells have you
known ? — CurtUtt. None but tliat, Sir.
L. C. J. He does not know as many as
tliore are panes of glass in tlie window, Mr.
Allornev-
Mr. XVilliami. And this, he says, lay west of
Fox's-lane; and there is your S^ad wdl boundi
for vou !
Att. Gen. I ask you a^in, that s|nq|;
whidi you mentioiietl, did itiie io the dean tad
chapter's Lynches, or no ?
Curtlett. I tell yon I know not whose tlw
ground was ; the church stands there now.
Serj. Lutmch. Did it lie in Upper tibd-
welli*
X. C. J. He answers as pUdn as any mi
can, it was where the chnrch now is.
Mr. Williams. Where is Kjemp? Doyw
know the houses in question ?
Kemp. The houses in ShadweU I do kn0Vi
between Bell-wharf and Foi^'s-lane ; I ktfv
them before tliey were built as they «re now ;
tliere were sonie small houses budt faereisd
there all akrag. There was a pond and diieki
to recdve the water of the tide ; but at BiwA
bridge especially, there were, houses along to
the northwanl ; among the rest, Mr. Craves^
house, who had a large orchard and gmrdco.
L. C.J. Where was that?
Kemp. EasiwanI of Fox's-lane, and several
other houses there were.
Mr. WilUvmn. Whose inheritance was it?
Ktmp. Mrs. Moor was my master*s lasd-
huly, and ShadweU was reputed her land and
lane ?— CurtUtt. To the West.
3Ir. Williams. Did you know the well that
is caJIwl Shudwcll ?
CurtUtt. 1 know there was such a small
spriiifr.
L, C. J. Did it li<* cast tf Fox's- lane, or
west, doyoii sisy:— CurtUtt t. Ui^i, it lav.
Mr. \Vi!fitnr,<. IVay, did the pljiwj \\lirif'
you iwed to swim tonlo uji u ; liu- us the wall i'
Curthtt. Oh, no.
/» C. .f. I bcliivc that M'i>s \*itl»in the
Thanu's only-
Mr. irj7/iflw5. II<»w noai have vni swam to
Ft.'x\s-Iano :'
Mr. Williams. She nas lessee uadsr tho
church.
Se:j. Pfmhtrton. Did you know the cols
and ditches in that ground ? — Kanp. Yes, Sir.
iaier}. remberton. How far went they west-
wanl?
Kcfiip. The ditch ran all ui one till it came
t«) Itrn.'id-bridiTo, where it parted to the Dortk-
; \v:ii-4l :ui<! the U est ward.
L. C. J. How near Fox*s-lane?
I Kemp. Within a dozen or twenty yards of
' r<ix'.s-l«np.
; Jit. Utn. What sort of ground was it?
j Was it not marsh gmund ?
CurtUtt, It was in tin- Tiiaiiii'», in an nldy, I Kinp. V man that builds boaU in i(inler<
thoiethe water went 11 udi-riir. It h ihf i tall. . - .
Ait. (Jen. Ill uhas«> ground was that ^dl
that yi^u call Sliadwdl ?
CurtUtt. I raniiol tt-ll in whusu ground it
Msu.
Ait. Cm. Was ii iu tlic Lynches, or in tho
marsh -ground, upou your oath?
Curthtt. 1 cannot tell indcod whoM giouud
it was in.
j timir put his shallops into the pond, othem
it uas very good ground to the northward ;
thtTtr were vtry many guo<l houses built, ami
siiKv Mr. Mcalc had to do witli Shadwell, they
have built in BIr. Craven^s, and built a watei^
housts and two other houses there.
L. C. /. Read the surrey agun, that mcB«
tions Craven's house tlieie. rWhicli wm
done.]
STATE TRIALS^ 36 CHAt^Lts U. iSU^firgrki P^rt of SkadweU. [614
. Thai was bending northwani that
Viilimm. It v part of the seven aeres
J. Do not you oootend for the brew-
jem. For the water- bouse we do,
/. Is not th6 water- house built upon
^raren's ground ?
. Yes, my loni, it is.
Wiiliami. When did you know this
Kemp. Fifty years ago.
Viiummt. n as this ground orchards or
then?
. feSev^ral plaoes of it were gardens and
(; some places had houses, chiefly to
iwardy sonte good bouses and orehards,
y Mr. Craven's.
rem. Do you speak of the hilly or the
ind?
. The middle ground chiefly, that that
Jiward.
Ten. Did you knoir the Lynches, the
mud?
. Up higher to Ratcliff'-highway, I
rem. Did you know the ditrh that came
e bottom of the Lynches ?
. The stream did run in several places,
irauod was good ground, Nortnward
isil.
i. Were there any houses built on
bMle of that ditch?
. There were a great many built be-
la^tcb and theTbaRics, between Bell-
id Fox's- lane.
len. What, fifty years ago?
/ Your own survey says so.
ViHimmi. Call Datuel Hams. Swear
ifhich was done.)— Do you know the
lands in <|uestion ?
. I knew it when it was a mill.
J. How long is it since you first knew
sv. Forty years.
J. Prithee, what kind of a mill was it ?
, A ground-shot mill ; she took in wa-
ai-wbarf, and it ran towards the West
-lane, in several brunches and ditches.
J. How ! a gnnmd-shot mill sayst
f hy, these gentlemen say it was an
Imin.
. My lord, it could be no over-shot
the water will not rise bigh enough to
sb a mill ; it ran in several ditches to
it fimn rising to overflow the ground.
BT father, who was a millwright
IbU iae he had known it tlirrr- srure
■i Isiew it always a ground-shot rniti :
Mtfall the mills about Londo'n, what
Mb Pniy, how old was your father
"'^"youso?
I iMd known them, he said, sixty
kwinen deail twenty years.
Wby tbe mill was removed ; lie
iritOTkmg.
no proof of It but your deeds.
Hams. My lord, there it was, he said.
Ati, Gen. Was there not a pond and ditches ?
Hams. There mnst be ditches to receive the
water as it came in ; but still the more the tide
came in, that filled up the ponds ; and as it
went back a^ain, it drove the mill.
Air. Williums. What profession are you uf,
pray P — Hams, I am a mill- w right.
Att. Gen. Pray do they make use of a
troiMfh in such a mill?
Iiams. They do ibr an orer-shot mill.
Att, Gen. Here is a trough of lead in their
lease. Do not they use a trough in an under-
shot mill ?
Hams, No, if it be by the tide a ground-
shot mill, there is no necessity of a trough.
Mr. WiUinms, We have a great many wit-
nesses to this point. Swear Grindy. (Which
was done.) ^e yon a null-wright?
Grindy. I am only a miller.
Mr. WilUams. Did you know the mill in
question ?
Grindy. I cannot remember it, 8ir.
L, C. J. How long have you known the
place?
Grindy, Thirty or forty years : but I had no
acquaintance with that null they speak of; but
I know it is impossible for any over-shot mill
to be there: ror I kept part of a Tide- mill
myself, and have done so this forty years ; and
I know the water must rise at least ten, twelve,
or fourteen foot higher than it needs in a tide-
mill. For we take in our water as the tide
comes in, and we have a pair of gates that are
hung with hinges at the top, which open as
the tide comes in ; but the water, as it goeth
ont, shuts it again, and that keeps the water to
stand three or four hours in some mills, and
tben we have only guts that belong to the
wheel, and when we draw up the gates, the
water gors out. We have no water that comes
above the shaft, which is half the heighth of
the wheel, which is sixteen foot high. To talk
oi' an over -shot mill, the water must rise so
high as to go over the whole marsh.
L. C. J. And must drown all the town and
country too. It is plainly so, Mr. Attorney,
talk as long you w ill.
Att. Gen.' Friend, I ask you but one short,
plain question : I would know, can they use a
leaden trough with those tidc-roills, as you call
them ?
Grindy. We can use none, nor do we make
any .such' thing.
Att, Gen. Would not the springs in the
Lynches carry an over-shot mill ?
Grindy. Sir, 1 have seen the place all altout
many times ; and 1 will lay any man '40l, to
^05. that all the springs tborealN)uts diall not
proiUicc a quarter tnough water.
Mr. Wiliiams, Where is George Care?
Swear him— [Which was done.]— Do you
know Fox's-lane?— Cart. Vi'ry well.
Mr. Wttlitnni. Ifow long liuve you known
it?— Oir<:. Eiffht-and-tilty years.
Mr. IVilliaifis. Did vou 'know Shadwell, the
well so called f-^Carc, That 1 did, Sir.
KkowIcs. No, one Ga^, or some such 1
£. C. J. I suppose it was to Mr. Cage*!
chamber, tbat mairied Okey's widow.
8eij. Stringer, I believe it was, and I am
iiiS] STAT£ TRIALS, 36 Charles II. l6B4i.^Tke Lady htft TrM, [61^
Mr. Williams, Wbere stood it, pray?
Care. At tlie upper end of Fox's -Jane as we
go westward, aud just at the side of the church-
yard tlicre is one now, and brick'd over head
fvhcre they used to fetch water ; I never knew
any othrr.
iVIr. Williams. Was tliat called Shadwell ?
Care, I never knew any other but what I
tell you of.
Seij. Stringer, Pray, what was usually
taken to be the east-bound of Wappine- marsh ?
Care. The west- side of Fox's-lane ,was
called Mai-sh-wall, or Wall-marsh, and that
was the boundary to Stepkins's lands ; and
eastward was always tlie lands of the dean of
Paul's, and I have kuoim it this eight-aii4>
tifty years ; nay, I was tlie first that ever built
an nousein Fox's- lane.
Att. Gen. Do you know tlie Lynches, orthe
high ground nortbwarfl ?
Care. I know it nut by that name.
Ait. Gen. This ^ ell you speak of, did it not
rise out of that ground 1*
Care. It was by the church -yard that is
now.
Att, Gen. You have claimed the inheritance
of it.
BIr. Williams. Sir, we hope we shall not
need to be taui^ht which is our inheritance ;
where is Mr, Marr ? We shall now, my lord,
answer the admeasurement made by her sur-
veyor Holwcll. Pray, will you, Mr. 3Iarr, tell
the conrthow many acres it is?
Marr, The land which is counted Wapping-
marsh, which is bounded on Fox's-lane east,
on the dean's land west, upon G rash- mill,
Well-close, Nijrhlingnle-lariO, &c. if ue take
it to the ii[pi.-r^ruuntl, dotli coi.iuiu lyo acres;
buttukc iiitliut uhich is in que.Ntiun tuu, und it
makes 141 acres.
Mr. Williams. Did you measure it too, IMr.
Levbum ?
t^i/burn. I did so too, Sir ; and it is as he
says.
"i. C. J. IIow much is it?
hcyburn. I took the nh(»le, from St. Katlso-
rine's lo Fox's-lane, and it makeu i:U) acri-s
besides the upland and foreland, and the lil.e
between Grash-mill and Wall-iiiarsh-v.a!i : i: h
at least so much : it is, I think, somewhat more,
the diicht's btMug undonniucd.
Z. C. J. Well, what is it all this while you
keep my hrotlicr (Jrojro:y i'ur ?
Mr. iViltianis. If your lonlship please, v/e
Jiave only a short question to ask Mr. IJaron
Gr^nory; if ho please to he sworn— [Which
was done] Where; is 3Ir. KnowlesP JSir,
you were pleasiid to say that the writings were
carrietl to Mr. Neale's counsel in Gray *k- Inn,
anil til at that writing was among them ?
Knoulfs. Tliey were so, aud I iK^licve it
^as amori^ them.
Mr. Williams. My lor;l, Mr. Baron Gregory
had the prnisal of f ne writings.
L. C. J. But, Mr. Williams, my brother
C«regory was not named to be the counsellor in
Gray's-(iui.
sorry we have kept Mr. Baroa Gregory so long.
Knowles, pray, did you know they were witti
Mr. Baron Gregory ?
L. C. J. Did you know that they were with
my brother Gregory ?
^Knowles, No, my lord, that I remeniber.
L. C. J. Well, brother, we camioi help your
staying now ; but remember you had an oftr
made you at first, and you are punished for r^
fusing it. Go on, brf>ther Strinser.
Serj. Pemberton. My lord, wat which we
were surprised with the last trial, was thft nor*
ness of tlicse deeds to us. It looked to ui t»
be so strange a thing, so amazing a thing to iii,
that we knew not how to give an answer to it
We have since considered of these things, sod
your lordship dotli see what account they
themselves have ^vcn of them ; and what m
iuiprobability it is that these deetia should be
found, as tliey say. Here was a posseHSM
which we have proved under the dean of PaoTs
lease for so long ; this they wonld strip us of i
thrse di'Pds they have trumped up. U niadeoi
look into it more warily, and we cannot ooncdfs
it pr(»bab!e, or any thmg Ukely, that the deed
of jmrcliasc, whereby this land is pretended tt
be piu'chasetl into the family of the Stepkiai'^
should be found in the hands of the desD of
Paul's lessee, who likewise purchased itof Uit
state, as the inheritance of tne dean of Paul's.
How could the deed of purchase from HiUbi
in our lessee's house ?
Att. Gtn. It was not, that is a mistake.
Si'ij. Pcmberiun. Good Mr. Attorney, do
not hiierru|,t inc. We must i-ely upon it', tbit
Ibey swore it the last time, aud that the dt-cd of
iiihiritanro was made four days licfure oar
(k'cd, on purpose to wari-aut the trick. Here
is hkowise a surrender made between Hal) ind
Stcpkins prodiKvd. IIow should the detfi*!
lesft.cs coiiiL* to ha\(! that deed ofsurander?
I>i!t to siUisiy your Iwi'dship in lliis matter, we
Nhall !;^ive ai';i*lland fair evidence that tbest
di'L'tis an* forg-od.
!^lr. Bradbury. ]\Iy lord, we have hid ■
\iolc-iit suspicion, that these deeds were forged.
Hut wo Kiisj)cct it now no longer, for webavf
dctectcvi it, anil will show as palpable, self-
ev'i«l«iit fori^ciy ujion the face of these deeds
as ever was. ' I (U'^.il■e to see the deed of die
IJlh of Novonibor, in the '2d und od yews of
Phihp and Mary, from IMarcellus Ilall to
Bopc'V ; and that of the 22tl of December, in die
same years, from I^Iiircelius Hall to Carter,!
desire to see too. Your lordship sees tbeuse«
thi'se deeds. The one is grat\eJ upon ourlcs*
from dean Fecknam, where it is recited, tbrt
the mile is demolished, and a new one eroded ■
in another place (says their deed) ; and upOB
that they set up the notion of an over-sliutinill
and all the puzzling matter brought into tUi
cause. But I dare undertake to prove ibc^
plainly foiled.
kTE TRIALS, 56 Charles IL i684.— /or great Pari of ShadwelL [6IS
* antii Ifae dissolution of the same, beings the
* 9th day of December then next ensuing.'
Mr. bradbury. Here in the act^ made by
the public council of the kingdoiH, the stiles is
in the ancient manner. And your lordship ob-
serves these no small differences. Here first
Spain is lefVo\it in the emimeration of the L'ing-
doms, and so Sicily and Naples is instead of
them. In the d^s, Spain is put in before
France, and the Sicilies made a' kingdom too.
Secondly, Here in the stile of the act they are
called but princes of Spain and Sicily, that in
the deeds is quite left out. And then in the
acts of parliament, Millan is put before Bur-
gundy ; m the deeds Burgundy before Millau.
And how tbis great alteration of the stile should
come to be put in a miller's lease, is strange.
We have next an account of all the fines of
I. That iS'ao undertaking indeed.
ilkury. It is an undertaking indeed
le defiendaot's artifice ; but I will
oo it, and shall 'demonstrate it so
iiat Mr. Attorney himself shaU be
Jhey are forged.
i. Come on, let us see this demon -
jdbury. The deeds have brought
ice upon their own faces, that is
fiojiis. Prithee open the exception.
dhury. If jrour lordship please to
item, the stile of the kin^ and queen
8 thus : tlie one is, * This indenture
* 13th day of November, in the
jid tliird years of the reitrns of
reign lord and ladj^ Philip and
the grace of Gotl, king and queen Hillary term, which was the next term follow-
»d, Spain, France, botli Sicilies, Je-
and Ireland, defenders of the faith,
I of Austria, dukes of Burgundy,
.nd Brabant, counts of Haspurg,
and Tvroll.' The other is, • This
made tue 22d of December in the
r.' Now in November and Decern -
1 and third of Philip^ and 3Iarv, it
■Me for any man in the world to
fid in this form that those two wri-
I. Ii that vour demonstration .^
Pny let nim go on^ roetbinks it is
dtury. My lord, I had the hint from
oke m his first Institutes ; not as to
liar stile, for I know he is mistaken
for the detecting of forgeries in ge-
lt is very well ; pray, go on.
dbury, Mv lord, at that time king
I (|iieen 5lary were among oilier
1 Vmoi and queen of Naples, princes
■d Skily ; they never were railed
ing ; for their first deeds happen to be in Mi-
chaelmas term, and then the parliament sate
too. (Many of which were read.)
Mr. Bradbury. Here are likewise the fines
of the Easter- term following, which shew that
still the old stile continued in all the public re-
cords. And if we could as easily have brought
all the enrolments of deeds, that would prove
the same. (The fines of Easter term read.)
Mr. Bradbury, Now, my lord, we shall shew
when the stile turned, tliat'was in Trinity-tenn
after. (The fines read.)
Mr. Bradbury, But 1 cannot see how these
deeds could be truly made at that time, when
they stand sinjrle, and none like them can be
shewn, except they come from the same tbrge
that these do. I cannot believe the miller alone,
or he that drew his leases for him, could so
long before prophesy what manner of stile
should hereafter be used.
Mr. Williams. Your lordship has heard our
deed of the 10th of December, in the same
year, read already ; but wc having here the
ledger-book of the church of St. Paul's, which
of Spain, and both the Sicilies ; cannot be made for a turn, but was written at
lastly. Burgundy was never put
an. Now io prove all this that I
I here all the records of that time,
I prove their stile to be otherwise.
hall shew the acts of parliament of
The sitting began the 2l8t of Oc-
hat year, which was before their
cbded the 9th of December after.
ini fead tlie titles of the acts of i»ar-
idyim will find them iust as I have
M. Read the statute-book.
ndti] * Acts made at a parliament
if hohlen at Westminstf^r, the 21st
AdMTy in the second and third years
4n rf our most gracious sovereign
mkf Philip and ]!£uy, by the grace
^7 and queen of ^eland, France*
' m and Ireland, defenders of
of Spain and Sicily, arch-
(dakes of Millan, Burgundy
mm^ uMUils of Uaspurg, Flanders
ik* wmk thi^ie continued and kept
2
that time ; we desire the stile may be read
there. (Whicli' was done.) But to go a
little further, to satisfy \^\xt lorJship that Uiey
are very likely to be forged, we shall give some
evidence that this is not an unusual thing with
some people concerned in this cause. The
witnesses will name them lo you, and give you
an account of it. Swear this lady and sir
Charles Cutterel. ^Which was done.)
L. C. J. Well, wliat is it you call these per-
sons to ?
Sir John Trevor. To speak plain, my lonl,
we call them to give an accout;t of my lady
Ivy's forging a mortgage from one sir William
Salkhill for 1,.5U0/. of a house in St. Marlin's-
lan*?, lo which fon»ery Mr. DuHHt, that laily's
husband, ii as privy, and what InMirtit he should
have by it, you will hear. Sir (Miarles Cot-
terel, pray, will you tell what you know of my
lady Ivy 'in this matter ?
Sir C. Cotferel. My lonl, that which 1 have
to say is this; my lonl, I am tenant to mv
lady Salkhill, sir William SalkhiU*s widow, in
619j STATE TRIALS, 36 Ch arlks II. 1 fiS4.— 7Xf Lady %'« Triul, [G90
a house in St.' Martin's-lane, and was lo to her
husband a year and a half before he died. The
house haih been built backward, and the gar-
den sido ihey kept to themselves ; but all the
Itouse th»l was first built, I took, and have it
still. My laily Ivy did come to the house
about tliree months before sir William died,
parting fnim her husband su: Tliomas Ivy: she
<Mme thither as a refuge ; where she had been
before, and was received very kindly. He
died, as 1 said, about three months after, and
my lady then desired to kuow how accounts
stood betwrcn sir William and her about
moneys he had lent her, and sup;»lie(l her with.
And upon the account she appeared to owe sir
William 0(1 /. she then took 4/. more out of my
lady Salkliill's money, and told her, now,
madam, 1 owe you 100^ She had been enter-
tained as a guest there without payinj^ anv
thinGf for it, anil at his death she coniinuefl
with ii:y lady Sal k Kill three quarters of a year
after. AnrrbcinsT there (as she pretendeii), in
great kliiiiiiess to me» she persuaded my lady
and me, that the lease of my lady's house
should l>e turned over to me, in trust for a debt
for fourscore pounds that was owing to me by
air William Salkhill. Siid I to my lady Salk-
hill, mmlam. I am in no doubt of my money,
I pay as much rent as this in a year and more,
I can pay myself that ^ay ; pray let me not
meddle with any such thing, Mr.iJuffett will
be persuaded I mtend to cheat them if I should.
But still my laily Ivy was at it, and prevailed
upon my lady Salkfiill to press me to it. At
last, upon their importunity, said 1, if it be ne-
cessary for my lady's servi*»c, let it be done
what yoi! iliiiik fit. * She therefore ga%'e direc-
tion to !Mr. Sutton, ami ho came to mo, and I
directed him to draw a writing to turn over the
house to mr as a security. lie asked me how
much my dcl»t was ? Fourscore pounds, said I.
Said he, 1 should see my lord of Salisbury *s
lease to my lady, for he' must take out soino
things to draw tiiis by. He did sec it, and
took as much by note out of it as he thought
fit, to make tlie other by. Then a uTiting
was drawn, this was in Ju'ne 1670, or 1671, I
ani not ceif^in partiouhrlv which; hut she
brings t!iis writing, ;nid my lady Salkhill sign-
vA it by her dv fliro ; and my lady Iv^' and Sfr.
Sutton were both wiiut s:;os^o it.*^ Alwut a year
after I heard that siie set on r<H»t a n)Ortgago of
her own upon this house from sir William
Salkhill. 1 wondere<l at it, heeause when the
account was made up, she appeared to Ih» in sir
A\ illiam'.s debt ; and I told thos^e that told me
of it, 1 would believe it when I did we it. I
was then informed the writing was ai 3Ialmes-
bury. She after went out of town, and comes
bark ngain in a little while, and thi^ writing, as
I he:ird, was shown to Mrveral persons of my
acquaintance, that came to me and told me
they had saen it; but said I, so have not I, but
when I see it I will believe it. At last seijeant
West, who wan a relation of mine, f marri*:d
his aunt, one day brought over this writing to
im ; and told mn ho bad got this writing at
last, and leave from my lady J vt Is let me see
it. I looked upon it, and there 1 did see «t the
bottom, where the seal was, William SslkhiU,
and then i tnmed to look upon the wiUmscs
names. No, says be, you mnst not sec that,
who are witnes.ses to the deed ; for my lady
Ivy maile me promise, before sbe let me have
it to shew you, that you should not see the
witnesses names. Then said I agvin, I have
seen enough to give me satisfaction : I was a
little the more coniii-med that the thing was not
a reality but fiction, and so I tdd liim. My
lady saw that would not pass ; sbe ofiered,
provided Mrs. DufTett, my lady's daughter,
might have the advantage of the house, to re«
lease the matter.
X. C. J. Pray, >Sir, for how much was tiw
pretended mortgage ?
Sir C. Cotterel. For 1,500/. that sir William
Salkhill owed her ; which I thoogbtsomewhtt
strange, seeing as [ said, she ow^ sir WiHiafli
so much at his death. At last I came to pie-
ducc my writing, (for she told me I might give
Airs. Duffett a right to tlie house.) Ndw 1 bid
not read over the writing mafic me ; but now
when T came to look upon it, instead of a oKHt-
gage for securing my debt, mine was a deed
of sale from my lady Salkhill, whereby the
house and the lease from my lord of Salisbury
were sold mc for fourscore pounds ; at wbidi J
was a little amazed. My lady was then pbued
to say I was a cheat, though I had no band in
it, nor indeed would Iiave had any thing at all
done ; but upon my lady Ivy's importunitv,
and my lady Salkhill's, I gave direction only
for a mortgage.
L. C. J. What was it that Sutton took oat of
my lord of Salisbury's lease?
Sir C. Cot. He was to take notes to draw a
mortgage of that lease by.
L. C.J, He got the notes though, for might
J perceive, to draw another mortgage by. A
very trick, it smells rank of the knave.
Sejj. Stringer. Pray, sir Charles, did yon
ever |my any "money by my lady's onler ? i
Sir C. Cot, I did lend my lady Ivy 50/. sbe
being in distress for money, afterwards it was
inaile up 100/. Ah<mt February 1671, it was
made up 1!260/. and by agreement among them
my lady Ivy did reliiupiish that said mortgage
she liu(i thus set on foot : and there was a deed
Tripartite made lietween me of the first, my
lady Ivy of the second part, and some trustees
for Mrs. Dulfctt of the third part, whereby lh«
reversion was given to Mrs. OuffettJand my lady
coutirmed it, and gave my lady Salkhill a bond
oi' 1000/. in whirh colonel Gravener was bound
for her, thnt she should not trouble my lady
about tlic house ; ytt notwithstanding did sbe
afterwards write to Mr. DufTett, iis I have
lieanl, that siie would set it en foot again,
and she should have half of what she bad
recovered.
L, C. J. The inheritance of the bouse, ii
seems, is in my lord of Salisbury.
Sir C, Cot. Yes, my lord ; Sir W. Salkhill bad
the original lease from my loid of Saliabory.
fiSlJ STATE TRIALS, 36 Charles II.
^ C. J. >Vlial direction did you give Sutton
about It ?
Sir C. Cof. To make a niort||^ge only to se-
core fouivcoie pound.
L. C. J: And what did bo make?
Sir C. Cof . An absolute deed of sale.
L. C. J- Was there no proviso in it^ to be
foid upon payment of money ?
Sir C. doi. No, nothing but an actual sale
for so much money .
L. C. J. You say my lady Ivy afterwards
did relinquish her pretended mortgage; pray
bad she nothing for it f
Sir C. Coi. Nothing that I know of; she
joined in that deed Tripartite.
Mr. Wiiliamt. What should dispose her to
^e Mrs. Duffett 1500/. if it were really ow-
uybcr?
L C. J. Is that mortgage here among your
— ^ — p Mr. Attorney?
Lady Ivy, Indeed, my lord, I would have
knogbt it, if they had given the least notice of
«te they now talk of.
Ait. Gem. Sir Charles Cotterel, do you know
iktBT lady Irv tbrged that deed ?
8b C. d. Not 1 ; but it did appear to me
librM true deed, upon what I found and
Iddj Jvy. You must give an account for
ite joa Mve said here
li- u./. Nay, Madam, pray do not be in a
{•■■■': he has sworn what he has said here.
Ujy Ivy. If he doth swear it, he is for-
2b C /. Nay, madam, you must be more
linatemthe court !
Mr. Wiliianu. Mv lady tliinks she has oc-
cnm to be angry, but it may be we shall give
her more ezercisie for her passion beibre we
bne done. Pray, swear that bdy, Mrs. Duf-
te. Will vou acquaint my lord and the jury,
•hil yuu know has been done by my \m\y
Iv^, or by her directiou, in making and al-
iBn^g of deeds.
Mrs. Duffett. 3Iy lord, I did see Mr. Duf-
kKLIhrgc and counierieit several deeds for my
L.C.J. Do you liear what she says, Mr.
AUvBey ?
^Aii. Gem. Yes, my lord, we sliail give an
MMUK of her anon.
L C. J, Truly, I hope I mistook her, and
M not hear right what she said. Pray
WbeH, speak it over ogaio, and cont>ider weft
»htt you say.
Mis. Duffett. I say, my lord, I did nice IVlr.
DiCelt fiirge and countiTVcit several deeds t'oi*
■ylldy Ivy. The tirst thing tliat I do re-
■labtr was in the trial betwitTi her huxb^ind
MJihe ; Mr. Dnifett did by her order muti-
Milaboad from him to S4)iae third pi;rK)n
fcliODOt, and several letlei-s pretende<l to be
■Mb firom sir Thomas to my latly Ivy w(*re
Tlie next thing that I romeinher :
ras writing upon u iKnthment ; 1
)mm what he was writinf^':' Ho an-
■i^ He WMOOOUterfciting one Glover's
1684.— >r gretU Pari of Shadwell.
lease, by which my kidy would get many
hundreds of pounds, and for which he shoukl
have 500/. I desired him to consider what he
did, for before that time lie had l)ecn account^
ed a very honest man. Some time after that»
my lady Ivy did, upon pique to my mother, my
lady l&lkhill, set a-foot a mortgage she pre-
teuided to have of the house in bt. Martin's*
lane for 1500/. from my father. She did once
tell me she had such a mtirtgage, as she pre*
tended real, but that it was drowned in a trunk
of writings coming from Malmesbury. Said
1, my mother and sir Charles Cotterel will not
believe it, if you do not let them see it. I am
satisfied as to my concern in it, and would not
have you proceed in it, for she pretended she
did it for my advantage. But aiWrwards Mr.
Duffett and she did agree to make a writing,
in my sight, of a mortgage.
Z. C. J. Was my lady Ivy by when th«
writing was made, as you say P
Mrs. Duffett, She was by, giving him or*
dcr how to make it, and what ink be should
use to make it look old ; and they forced me
to make the ink, and to fetch saffron to put in
it to make it look old.
Serj. Stringer, Now will be the time to shew
my lady's letters.
L. C, J, Misti'css, I would ask you one ques*
tion by the way, whetlier while these things
vrerc doing at any time, any body did come in
and give you any interruption Y
Mrs. Duffett. My lord, Mr. Duffett and my
lady made me oftentimes stand at the door
(for we were but hHlg^ers) that no one might
come and disturb them, and I never remember
any that came in thither but one Mr. Sutton an
attorney, my lady's attorney.
L, C. J. Did be see any of this done ?
Mrs. Duffett. I cannot say he helped to do
any thbg, for when he came in, they some-
times sent me out to sec that nobody should
come upon them ; and so what he did, I can-
not say. But he was let in when Mr. Duflett
was counteHeiting for ray Indy Ivy.
L. C J. When was this ; about what time ?
Mrs. Duffett. Of the day, my lord i*
L. C. J. No, how lonpr ago is it ?
Mrs. Duffett, It might be about 1670, or
1671.
L. C. J. You are my lady Salkhill's daugh-
ter, I think, and married Duffett?
Mrs. Duffett. I did so, my loni, I am her
dai'ghter.
Si'iJ. Stringer. Pmy what did they <!«i to the
deril^. they miulf, to make them Kwk like an-
cietit \ruti dt^lsj*
Mr: DuiffU. For the mf»kinpf of the out-
i>i'!f's l')()k oi:l and dirty, they used to rub them
on uiiiilowR that were vcrv dnsiy, and wear
them in their pockets to crease them, for some
iverks togetlicr, accordinff .-is ihey intended to
make u«e of them.
Att. Hen. My lord, as it hupfiens, we have
thnt deed she tulks of, c :d Jed <■ lover's lease,
here.
L. C. J. Ay, I suppose you have such a
liiiMli;irri<t a ^k^.m und li haff bsfvnift he MtsiL
hi>(i>;f' liatl) been Uuik bnckwEnl^ anil il'*
4fta sidi'^ ihcy joept to tbt<mietviss ; boi
liouMu tMt was fkmt liutti^ I tAok, Jini^ <
mil J. 1>fy huly Ivy (Ud v!<7nifi ti> tl.
tboiit tbrce month* beibre iif tVilif > .
oamt) tliiibi^r tui n rdti^^f^ ; U'liere «ltr U. .
ht^bfm^ OlUA was rmo^ttfA vpry kimilv
dM| nil 1 isadf vb&ai thrtc tnonilH al^i'-r
my my liiai desired to know hrm >
fiaod hfMKfn Btr WilltAtn sn^l tv
mtmey% h^liaii Jvttl hirt and mji^lic«l <
Aad upon IJie ftccmiQi vbs ifiM!^^ i
Waiiain fW. die tbon took 4^ m--
lady HAJkJiiirrt fUiftictyt ad J til
inA«facn, I t\mm yon lool Hh^ h*tii \-
Umed hq ii (^dcH tlu.*re l^ttimt p\
limi^f fof i% anil tvt hit rfrjitli c^*»
wilb my Mj 8'
«lU;r. Af\d bi»ir.;; ' /' '
gtmi kinttite4ai to nte, sbi pcrHuu'
imd mis, that llie Iftm of ro^
^hoiiicl bfr titnnril oxpv t«i tr»r i i
far irtiii^cmip patiiMi* ihAt. u :
■irWif^ ■ ^ ?nll £*4vill t.M •
hiili LJ II m iio ikiiiU ri
I piiy lus UP
I cwi p»y ]
iHf^ikHo wUli .iM^ ,111 - ,1
Jiui iitil) my Ijuly Ivy u«:.
upon my ^^ly Haikmll to p
ilLit, apflO illiril' ll>ii»oi titr»;: s
cfwiiry ihr my i
whal ^oii think i\i
tjop t£^ Mr* Hottfjn, Rii
dirpckHniitii Utihnw ti .
Iioim^ lo m** iwk a tt^cy t^ ;
itmoh aiy dtbt wm ^^ J-
l0(u»e t4> my \u^\s . ;
tlimgi to dmw ibu by
laok *m miuih by MiaUs tni( *
Uti 0 tonkr tbf ATt
W5I* drawn, ibia ^i ;
Mm mil o4^na»fi |
faring Itim wittiti,.
isd it by bear ri«fii t
AattEm mfrolKab .^ *
oiler f kt^^iirft IbvLi ..
HtiMiiiL Iwi^m}.
iiN^iJiit wm vmd* • ,
of it, I would Wii* *
wfts lb«n infoTfRiHl \U
bury, SbtfQf^trm
baif^lt 9g«iii in • Ini)'
I lirAffi, wax lilMKvii •
ftcquEiatiiiior, ibat o
«rb«» I if«U ] i«ii: >
WM, wlm wm ^^ :
ov; Hilt lold mil >
STATE TRU tS. sG Chaklcs II. 168 4.— >f greni P^iri vf SkoJmlL [639
fciiiiitihi
4Ciyt Uine, &v
I* ilicy, anil wl»
.:, ;; it. ^rhey tell
nm my i'>rd Coke 1
urto a i^t?ftt em>r ;
in the i'oiii(nvtulioti
^ grtui maii^' tiiHi'r
I
id '
ibI M%ty
^ titl» 111
!»♦
I knnw bp tit tnistnken ; but
i»f that lime. I
1 abmit detect
ilJ your corrfi^leocti
^"•tudation tmht
. ' s 5, who wfts
iiii cmwn the 25th
"d veiirs of Philip
t-rolls^ ID
;iy of the
■■Ml, Dlcf u tlic ^UU liiat vvaja ustcl at first
tml4 nut lie aketetL But the lact uf ttietr
lanf the Idiif a
«m» lc» nil II
)tii in QwllHadtJit tM mt mm.^ "j* im»i
t^mm M to our dc-etfs ; 90 that the 11
liwta* ; but lliat 14 lit not pjove n...
Avfui. It nkAV be^ tUc ruurtK of luw
ill tiki tmtioe of it. as to ujter the s.tile until
THttqrtrma ; ihoii^h we ImTe not seartrbed so
fti IBM0|^ tHciU| but tn the ocmmon convey-
•M9ttlticit ikrr upoti record in the rolk^ there
iMill#TM*r And r»s lo iht- I'^tH'of thnrbe-
lliil^r the
L C.J. I tt Ah
t two ob-
rice
^ ivh>
; !iiiri lUat yr^a the survey,
I oM^i 1 i;cJ" of the vicloiy,
T \T3s §0, to me
y ibe defen-
i'ai*e to have
It. Now he
i'n a bUbb of
the »^^ret to
'-^^ ...ere
:i la
live
for
. C.J. I tt
lr,JlitMii«^ h
inth
M brftg^d ut It
vfch^ with much
•ii ^rmlitflrd : and v
^•r^Md tin* iiUhKiM
•wi yon,
Wiirt^ua
you aigvin^
I iMtfH; bat mu^. .
I hyi< ^ the stile
I <Mfi< ; «nid by t
i«0i«^ ibe biaiiMM, ;
^ lHlltiiMv|iiil««do
tililtlowltutofy. '
iW iMH iramberK c ^^
loawer to
' f hv t!i*^
AtL
•irk*
mk B itoy« ft
h If r. PBik«*ft pbiefif AtiunM un this (.nuie
uu vf the Law of £vtdtiiee^
• t.
deuce; hut f say, h»:j*ides that, here is a (jen-
llemnfi, Mr. Clerk, that ftearclied ihe r«iH, lyitt
he H ill toll you vthul they iire in tliis point.
Mr* Cittrke. I dkl seaivU in the rofln, and
And many in that yt^Jtr like these. And my
ford Coke is utterly luistJiken ; he my a it wu«
not altered until the 'Ith and 5th years of Phd«
and 3Iary.
L. C, X 1 care not what iny lord ('ok
sav«» hut what the records s*iv, let us tiee then
Mr.Cfetk. I saw r my in thiit ycnii
L. C, J, Lord, L , ulmt do"
makeof us,to keep i. . ,,v._ ... Ii 1 if' t, .» i
what! Mr. Attorney, h« tciln u
Neale was so gr^at a blockhead to r
and 90 we were prepared t>if mi Jui
all the aniiner is, my lord Coke i^
and there aretnany records, but we hioe nun
of theuif Prifirioniti, Pneuiuniti. If he dn
bn»g 90, and yon knew it» and would not hrinj
records to wipe <dT tlie objection, it ts ten tim
wor>-
the:
un.'iwercd only ^^ii\
'^' . a-,rt.i'(/^ ,. i'o iT'id, I dare affirtn tha
arc none of the Holb of that year so, nlj
, . Easter terra.
L. C. J, Lo!"d, 8 IV, you must bcj cackling^
(<;f> ; u*^ told you your objection was very tu*
^'uious, but tiiat nnist not make 3'ou trouble '
some ; you cannot lay un egj^, but you wu9
be cackltn"" over it. Thte objeotion is nowjl
II pon them , let them answer \ i il' they ca n . i lav
yon any of the records here ?
Sol, Gea. ^Ve have not, it seetns, my lonl* '1
L. C. X Then thi^ must pasa unatiswe
;<nd must be left to the jury.
Sof. Gen, But, my lord, they hnrr- -'^•
little farther in this rase, and indee^l } 1
becomes them, I think, to lay n^m^i
my lady Iry, as if she were ft jnlt)
ot forgery. And for that sir C . ucix
swears, tliat she did pretend ^he had a mort^^ j
gaife of a house in St. Martin's -latie for l,3tH)fl
und thisE nioflgige, he says, lie was told of by
some thj»t didsee it ; whereupon he did lik*-^^
wise debire to see it ; and withi-i
he declared, he would never Ik
reality of the thing : and lhcreiJ|Mui .1(1 . .•^n
jeant West brought it hitti, and he saw it, bnf I
was not permitted to seethe witnesise* names^l
and thereupon he was mare tlissatistictl thnit ]
before about it. But if sir Charles Cotteref 1
hai) i^'^iven any the least intimation ofsuehii]
ihinq-, now we would ha veg^ra titled them with
8 sight of It in court, where he should h^vtrhiicl i
hiH full view ; tor my My bus itbtiil, and it it \
a true morti^age, and for a real cousidrmtion,
Bui he «i5»y<v thii* IS relen^sl, und fiht* ihd thnt,
as i> - ' : - ■ ''■ ■ r
it. r
1.1 1'.'.'.
>« \
4..
l\
,T^;u4
1 ; u J
I'lr*
fi-om
m V
hi
ty
»\v,
for
nme
r T». r.
if,. *
,.i
t]u^ .
,L.
turu*
gavt€ : but tthtj has ihe dt»ed ^iiii —
T
C. X Bat what «ay you \9 th» fletf^^t^
3S
€27] STATE TRIALS, S6 Chables II. 1684.— 71l« Laig Iv^$ THol, [OSB
t to answer
sale, and my friend Sutton's notes out of the
lease ; and the debt of 961. and 4/. but a little
before acknowledged by my laily lyy —
iS^. Gen, My lord, in ansuer to tbat, we
tNiy, he has been pleased to give it a great deal
of garniture ; and as he is master of tlie cere-
monies, to adorn the story with abundance of
iourishes of his own kincfness and interests —
L. C. J. Mr. Solicitor, you are not to judge
of that, whether it be flourish only or sub-
stance ; the court and the jury are the judges
of that, and truly I think it very material to the
cause ; I assure ^ou I do ; let the dirt be taken
off as it can, it sticks very much ; I must speak
my mind.
Sol, Gen. When I am over-ruled, I ac-
quiesce in the judgment of the court.
L. C. J. iVay, Sir, apply yourself
the evidence.
Sol, GcH. So 1 do, my lord, as well as I can.
The next witness is tliis gentlewoman, Mrs.
Daffctt ; she swears, that she saw her husband,
Mr. Duffett, counterfeit many deeds, she docs
not particularize them : ana here have been
likewise several letters read, that did import a
transaction and correspondence between my
lady ivy and him.
L,'C, J. Pray, Mr. Solicitor, remember she
„#lkrear« she saw that lease of Salkhill's, and that
tailed Glover's lease.
Sol, Gen, My lord, this witness that swears
this, is not only a person unfit to be believed,
but is contradicted bv a record ; and for that,
my lord, it stands tfius : Mr. Johnson, as is
wen known, had his trial for the matter about
which slie now swears : for Mr. Johnson, on
the behalf of alderman Ireton, undertook to pay
500/.* to Mr. Dufictt,to procure somebody to
swear the deed, called Glover's lease, to be
ibrg[ed. Upon this there was an Information
exhibited in this court against 3Ir. Johnson,
ftir subornation ; and upon full evidence John-
ion was convicted for his endeavour. And the
record of that conviction we have here, and dc •
aire to have produced and road.
£. C, J, And I tell you, Mr. Solicitor, that is
BO erideuce in this case.
Sol, Gen. Why, pray, jyood my lord, did not
they here inst now swear lier ?
L, C. J, But the infoi-malioB put in by Mr.
Attorney Noy, pray, remember, was not suf-
fered to be read, i>ecaiise not iigaiust ajiy of the
parties, but third prrs(»iis.
♦ Roger North says, *'Thc ludy prose-
oatod Johnson for this subonmiion by infor-
mation in the King's- bcr.ch, nn<i Xim cause was
tried before Pcuibert(»n. Jt ap^jcaretl that
Jolmson had no concern or words but by way
of advice to his client; but ho uas borne down
an<l convict; at which the Ibllow to..:, despair
and died. It was ihougiii his n)< .isun; was
▼ery hard andcrud: and tbi-.i sov.j mighty
point of interest in her ladyship's la vi>uits de-
pended upon this man's suflerin;;^. ' Life of
Lord KeeiHir Guilford, voL 2, p. l.'J, Uvo. ed.
SoL Gen, But pray, my lord, give me le«f •
to apply it to the objection here made in our
case, to the credit of our deeds. They say it is
suspicious, because mv lady Ivy useii to foig*
deeds ; and particularly Duffett, Uwy say, £d
once forge for her Glover's lease. Now lo
answer tliat, we come to shew tliat rey lady
Ivy did not forg^ GlovcrHi leake ; but there
was indeed an art used to persuade Duffeti to
swear it forged, when indeed it was not ; for
which trick Johnson, that was the agent, or
instrument, was convicteil ; and thatconTiction
is, I think, a good evidence that it was not
forged.
£. C J, None in the world, Mr. Solicitor ;
and that from the ray tvidenoe that bis beoi
given in this cause tliis cLiy : for it -is plain, if
you will bclie\e this woomu, (and I yet tee no
cause to the contrary) that she was ooaiing
into the court to have sworn the truth, which
would have perhaps cleared Johnson ; -but my
lady Ivy would needs keep her away. Now if
Dulfftt were so great a rogue as to lurge, 1m
would not stick to swear, to protect that forcery :
and then how easy a thin^ was it, had Jolin«
son been the greatest saint m the world, to hav«
got him convicted upon what Duflett came in
swear against him ; though, had she come thai
in, Duflett would have appeared one not at all
flt to be credited.
Sol, Gen, My lord, I have then mm thing
more to ofler; 1 cannot tell indeed whether it
be material, for it seems 1 have been ao un-
happy as to oflcT some things, that have not
becntliought maUTial.
X. C. J. You have so indeed, Mr. Solicitor, I
must speak the truth ; there have been several
things ofli'rcd as evidence, which, in anuibcr
cause and place, would not, 1 am sure, hava
been oflereu.
Sol, Gtn. BIy lord, I submit what I ^fler
fBr niv client to the judgment of the couit.
Hut that which 1 would say now, is this : W«
have liere the husband's oath concerning this
matter, tbat this woman who now takes upon
her to sweur these forgeries and things, tAld
him she could have 500/, if she would twaar
against niy lady Ivy.
L. C. J. Is that evidence against the Wife f
So/.Grn, He is now dead, it seems; buth'"
is his oath.
L. C. J. Pray, consider with yourself, <
the husband have been a witness against-tbn
wife about what she told him upon an infar*
mation for that oflence of subornation ?
Sol. (Jen, No, my lord, 1 think not.
L. C. J. Could the wiie be an erkleBM
aguinst the husband for the forgery ?
Sol. Gen, No, my loni, she could not; and
yet she swears it upon him here.
L. C. J. That is not «< gainst him, man; be
is out of the case, hut against my lady Ivy ;
and how can the oath of the hubband be wi»
dcnce here ?
Ait. Gen, Crjer, call Mr. Gibson, togirean
account of tliis gentlewoman.
Sol, Gen. Suppose, my lord, that both ini*
M0] SIXTE TRIALS, 36 CuAitLi^ IK 1 684.-/<w gre^U Part of $h^imtt. [630
l««J mmA mW*
«*«f« lirowjlit OS evidence
H^-
' V , n«-r« ibrtl trrtod ?
L
, limt were verv frooil.
SiH. i_7
^-.■' ' -' ■■"': . -r them
»7»«tiitt
. tiorje
W My J ,
Ik .--k .It . , ui*d the
m^mj%. w
► If not ilonc. IkiI 8he
t 500/. to sweorthey
^•11* littOt
1 tbm etidimre be admittHl
••eimtrtT
.•T?
1-
l^jnl ♦ freotlemeiK is
iwy M^ Ivy, iher.
e Mr HAMS mi^aiilisi
liwi » \utry, Ihiil it in/e«l be
*• cimlii!i:iU> urt;txl ? i» it tfocnJ lof^ic, that be^
tlwy BOlli wi*n* ifdoil wiineni««ffl nqiTimst
' ' ! '■ ''. "1 is a
hus*
-t iiH ^^ lit-, \ij (ix a
a do not intend this
>• lo <^priiil liuic.
Sir,
. ti ir^s dcjjie).
iirif. We are not now, njy lord» exa-
whal t>uif«tt swore aJwut torgery or not
\ Uit i« not this coiitf'HHion of hers an
—^ iffMiii«!fil a^inwt thp creiiit of h4ir testimony,
^k *wi Mtv lady Ivy do so jiiid
^1 ««». -sod >ih« eotdd liave
^B^2»»' ' nq;.iin^[ (uv lady Ivy.
^HHL I >fi. fS4»lti iti»r, if you will not
^^^ff^ ..•:... I cannot helt) rt ; is it
Its ogainftt the vrW'e ?
J, u uuivihat genttowoman
—ijibiun. I have Ueuid of her.
J i y» be not ant^ry, Wr. HoUcitor ;
im4^Mm lie, i* e cAiitJot help thul neilher, Tlie
liviftlWlaw for you as ndt &« me.
Stf. {I#it« My lord, 1 muni take Ihe nile
1 1 , Sir, from the
il tio shall every
I. I assure you
r displease; we
•* Miih imper-
il Qvo 0€'C?U
iay,,As ever
i heard ; an<) if
vc^ it, Uien tiiey
iy. The court g;ive«
CtJi tlMEtll.
til,.
,ft
cijvr, ov
^h>
ttt HOC bavo
MItliineY;
••■lariv omi*
lit |*c
C^cai. Iliivc you any acquaintaoec with
n?
1 h«ve iocn Ucr a great while a««,
iy G#n . \V hat I if* you ko< « w of h er '' W hat
(Hh9ii» I I 'A<r of her reputation ;
ibprdbfi WE^ :,. l:-.iLat*ii wife.
LC /. Atd »o do we^ (the telli ua so:
It I with Mr.
ii\d thau a
9?lciauitr>fi,
^ t fcf 1
^y-
ft ae^^THK tlien hy daving^ this
' ^:^re of thi»
iif tlu8 too.
j|//. Gen. You will give our evidence an
aiivwer I suppose by and bye : but we will
go on to the rest of yours. As to the bill .md
answer in the year 1629, in thut of John Step-
kias, it is juiid, he make^i the iMunds fa*»twnnl
to be Fox^s-lane ; but it is phiin^ he? (hat givea
in that answer w^as not aripiaiotod m\\\ th«
T I'd nsaet ions of the estiite before Ids own time.
And if you eonsider the time of that tinswer,
tliere was near fourscore years then past since
thf» lease made, and so long it had been out of
the family, rendering a pepper-t'orn rent; and
St I the pi'otiiahle interest nus ouly the four
.-uTcs siirrendeix?U to him by the (entuit, before
the liccmce to aliene : and it appeal^ not that
he hiid any notice of the reversion. But I ob-
serve in the answer there is one pasoage re-
markable ; thut there was a way, time out of
mitidf that did part this land, and that \vhi(^
was rcputetj the dean and chapter^s laud. Novr
that doth not tie it up to make Fox's -lane that
same way^ but only says fpuerally^ there wat
au old way^ which' must be understood of the
\\'\y\ down from Cock -hi! I to Bell-wharf : so
thai I tak<^ it^ that this is no conclusion upon
us. Nor upon the same ground is that lease
made 13 Jacobi, by John Stepkitis, where he
•ahutts his land upon that u'all which is called
Wall-marsh- wall, and covenants to have th»
reui iorreaseilt »* any thing beyond that be re-
covered ; fur there was near tlirrtrscore yearn
to come then of this lease^ and he had no j»re-
tence of title to contest it at that time ; audi so
the reniicts are all answered that way, the
lease expired not till tbe year 1660.
SuL Gciu Then, ray loni, for the suiTey
tliat they produce of tlie late titnes, by the
order of the committee of parliament for miitt
of diurch' lands, how that should give a tilJe,
I ikt not understand. It is the first time 1 ever
heard of a particular of dean and chapter**
lands to he an evidence, w hen at that time there
was no dean and chapter. But that which li
a clear answer to it Ls thisr Winterburu, who
bad the lease from the Chuirli, did also claim
under !HaiT«l|us Hall^ who hail a lease lor
ninety years: that in time ejspired in the yeai
1610. That interest being then determined,
he ^ets tljcsc jmt into the 8un?ey (which it was
bis interest to do) as the inheritance of the
chui'cln which would gaiti him a tee-simple
upon his purchase, he eoucealing the lou^
leasMf, and they lieing so loDg in posaasfioii ;
whereas otiier wise be could only have an estate
for years: and it apj^xiarii all the deeds were is
hill ciistody nt thai tinie. Tor the other wit-
nesses that speak to the wall^ that we must
leave to the Jury's consideration, U|h«i the ba-
bnce of the evMlence* For, witii submi«stai]p
uiy lorili tiiking the evidence as it Mtauds to-
getl»er, if thai liwae ol' Marcellus Hail be a
good lea»e, th^wt several couvey»irK*<'.» we pro-
duce «r^ 'I, and do * 'si: lie
aurr«ndf v« wbicb ^ Is thut
are alUi Mo Foi,, wJiuu is uiea-
lioutd J11 - curremler to be tb«
grtcu Hiitj ' uuufv^ auu Liiat was the boutkdary of
fint that ihi9 was all akn^ «yojcd
cburn'h of Paiirs leases. Knuwlcs, mhm fiw-
merly did receive the rents oftlic rety thing m
question, till (1677), belbrt' this queiiiioD, flavs,
in his tefttimooy, he receiTed them in tha right,
and on the behfilf of Mr. Neale, who daina by
lease from the dean of 8t Paurs.
That is not sufficient to maintain hia tilK
but they come and sliew the original ; aad m
point of time, 5 II. 8. thev say ttiat one dns
('ullet made a lease of the Unds id questioo, for
46 years. And to prove this, a book is pro*
duccd to you, wherein there is a short eoiry
mjidc, which takes no notice at all of any tbiog
more, but ibat there w-as such a lease of a wm
in Shad well, with the appurtenaooes. Bat
upon their producing that writing, it iM i
to be a paper writing; and there was an o _
tion, and a material one, made upon the fhoe af
the thing itself: for there were two pUcca that
seemed to be suspidooa, as made directly la
humour an eTidence of such a lease in 5 n. 8.
haviii*; Dr. Collet's name inserted, wbo hap-
pened to be dean of Pkiurs at that tiw^
whereas Nowell was originally tha aama thift
was set there, with the same hand that iha
other part of the writing waa. TbereupODit
631] STATE TRIALS, 36 Chailbs II. i684.— 7Xc Laig Ay# 7WW, [S9f
the foor acres ; but what becomes of the other
aeven acres and an half; they have given no
account of it hitlierto. But survly, my lord,
upon that first suney, I take it, there is a
strong evidence concurring with our assertion :
For that saith, the south boundary of the dean's
Lynches is Wall-marsh. Now, then, if there
lie seven acres to go forward from thence, that
just reaihcth up to Cock- hill; and all the
utiter bound:* idaiuly concur with ours: and
upon the perusal of the survey, which it is
consented to on both bides the jury shall have
with them, I bdie^-e they will be satisfied our
bouuds and thtit a^ree. Upon the whole evi-
dciitc I submit it fur the dcfeiidunt. We have
done, my hid.
Att. bin. Only 1 would ask Mr. huttun a
question; whetlier the bill and answer now
given in evidence, were nr»t given in evidence
at the last trial Y —Sutton. Yes, it was.
Att. Gin. An:l yet the verdict went for us
then, as I hope it will now.
X. C. J. Hare you all done, gentlemen ?
Will you say any thing for the plamtifT?
Mr. WilUaim. No, my lord, we will leave
it to your lordship and the jury.
L, C. J. Then, geutlcmen of the jury, this
evidence has been very long: I think the trial
has held us as loug as any cause that ever hap-
pened ill Westminster-ball, of this nature; I
tneau, except one, these many yean. I think
ive meet with but one in all our hooka, that
held near so long : That indeed was rather
something longer, the famous cause of Colt,
in this court ; but besides that, i never heard
«f a cau<c of this len^h l>efarc.
But, gentlemen, it is u cause of value, and a
cause of jrrtai weiirlit and considerntioii : it
hath dp{>eudcd in the evidence of it u^mu ubun-
daiice of circumsUncts, so that it iiwiy ite im-
possible ibr mc to remember all tlic c\ idciicc
tliat hath been given. But as near as 1 can,
I will give you what assistance I am able, in
recollecting what has been said on bolh sides.
Some of you I have observed have taken
notes, and that will save me and you some
trouble : J will give you a scheme fairly of
that which is the question. And it will be very
niiich more easy to you, because vou have hud
a view of the matter, than can l»e thought I
can make it by any dii-ection of mine.
The. question in short is, Whether seven
acres and a half of land, now built u|K»n to a
very great value, as the witnesses say, 9,000/.
a year lying on the cost side of the lane, that is
called by the name of Fox's-lane, . betwixt that
and thc'mill. calle<l lUtelift-mill, l>e part of the
luarsli that ibmirrl\ belontjfed to tlie i'aiuily of
the tkepkins's .' or w hetlier or no that be not
part of the dean and chanter of Paul's inhe-
ritance ? if it bclotifj^ to the dean and chat>ter
of PauPs^ then the issue is with the lessor of
the plaintiff: but if it be the inheritance of the
Htepkiiis*s ; and part of Uie mai'^h-Uud, and
was so according to tiie ancient boundaries,
then the u»ue is witli tlie deteodanl.
Thftpltiotiff oomaa and shewa for his titfe.
came to be enquired into, how it came tojPMi
that NowelPs name waa struck out and GoQil^
put in ? That seemed to insinuate, aa if Ihii
was contrived on purpose to sboar up an eti*
dence, and humour the time. For it oonld Bit
be imagined that Nowell shonld cone taba
deau wTlcn that Wase was made, who was nil
dean till so long after, in queen £liaabelh*k
time, as I take it. Now had this elgectiw
iiii^t with this book alone, it would haTe made
the evidence lame, and they would have htm
thousf ht to have set an ill feg forwards. But
to take otf that, tliev come after and shew a
parchment scroll, which takea notice UkewiM
of such u lease: and their oitioer, Kpencer, njfi
he has seen that scroll many years, and so it
could not be a new thing for this purpoae : it ia
an old rental, or some such thing ; in tima, in
F )mc short time after, w here ia mention mada
of a lease by dean Collet, 5 II. 8. for 45 jeara,
which humours tlie time exactly, and suppoffti
the credit of the other evidence. Tbia n thai
they give as an answer to that ob^tion. It
mi^ht be a misuke as to the name, but thii
will shew that it was not a contrived mattar Ibr
this purpose.
1 ue next piece of evidence they go to, ii S
£.6. and for that time they come and prodne^
leases, those that are at least in bw efidenesa
of leases; and those are the church bnekai
ancient books that have been alwaya read and
allowed tor evidence. And thereby they abeir
that one Dr. May, then dean ot St. ¥9ui%
viz. 23 Feb. 5 li^l. 6. dul lett the huida m
question to Joan Hall and Marcellus Hall;
and he lett it as the dean and chapter of Paiili
lands, for 45 years, at the rent oi* 10/. a-year.
Then they'tell you in the 2d and dd of PInL
and Mar. 10 Dec. one dean Fecknam takes n^
tice of the former leases, and letti it to Jte^
i U^ AiHJ Uioi ii fo- <^^'^ > • -r^ • wherein
llMm ^ tlic «ld n!tift talu^ . and lotae
rewnt
:«ni: \vr tbt- ileleiitlanti
* ibe milJ- Vou, Rtti-
viM liavK t}y& 4c««li ^Uli you, «uii are
l»>ialf« of ll»ciii.
TW lirtflM flVvQI 5 11. 6. ^ tbif dean F«tk-
■asi •!« uoJy liPMQi mule for y«mr« ; ontl hy
fOMiM of tMMe kttcs for jeArs, uid tUe loiig
\mm mkkk lfa«7 pr«b?tHl to, ibe d^fendiMit's
•MBiri JBfifil ifkiriiY fi fliui *^,r>i^ .•..t.t.l riot be
liiittll>€0Olr) rthc
iMtlttMlW 3^ Halt,
cwral ui UnM bat in ikjc year loao.
Now Mjf ih« ptniniHf '8 counsel, (and tbejr
n^uaslkftl wlmih i« vvr\ mnt^rial in tli« ciikv)
1 Aflf. ]IUUh this wnx then f^tt to one Mary
Mar«, lilt mJffCt oi aue \ < , formerly
t oC ibe itaunr li-oiii il^an
M«redki« } i there, in-
jil • i» J's, he letta
Ii Maiy Moiv, to roitsidt runon ui tlx? furmer
hmm^ and tuma it mtu an «iiati' tor t[ire«
Ifo fiyr tliea wtt» th<* itean of l^aijl*!i fitinn
_ r to U* b u ( 1 rssrc f(>r y «4rs ,
takei tjfinn bttii to crval« fretJiiolds,
ha* tbi; inlkrritauva cwj do.
'Wiiy K th€i% aih} tclt you, that in
tM»Qi«*aMie dtaiti (il\S(. Paijl'i», she bavini^
■llilMr«iirn!9t ttt one \Vbiti%iek and VVbi^r-
VQv ik^ft- I* n new c«tatc nmde to thera for
TbeA^ rontuitit* rn po^^f'ssion under
1 !fi their in-
, then dean
liere,
►f Si.
.!» the viib'
tho plain -
t laai
y ia «
ui ihat tb«
wf l**iul *w,
u TendcLDtAf hut
bvtliia n^
|m Dr. !&ill4ii«^lv.
" rt'i^ at ynrl> •: u*/.
ice of tll« rvrri.-h-f fri
I iiirfcT llat lttl>
t yf dcuflt ^
• rTftoi ny UI
I4rclb<*;i
I ila SBi oofUrt . . ^ .... ^ _..
ialibc pfaiaiiirBiiiil line a verdict for Itim.
Bai «ay |||#y wlii'-^ ■- » .. tlic d«leiiilttnU,
ft« !• not llidr mb' the dcfendont^a:
lai IM |««fe tbri itn \r nrodttre
^^■■rfwiif* *>t' decdw f can*
1^ fitr r^'u u irac-
!^ •* *«*«»
^^ii^ .b€Wi
fta«, I t>e doiibf»d, l^r it i« tif'YoiMl
^ lands rovri> ^
TiMf, a DuuljHi- >K lo
^i*, aftl bad an sift of j. ttiad«i,
gii fy U. a. l« cucoumj;*^ I ., ..i^ «n-
v«n It irKJi iTf giiriiig him tii« (»ii« fialf .
Tliat art «>f narfiuneut ii [»rtKJiic«dr aimI ii ii
Ibcre a^id t<i m 130 airca.
No IV y on are to tmkc notice ot*tb( boimduM
of this tuAi-ih-Jand, as tnaUug ibe aiittol'lld*
4|uesliou* Tl»e at! of p.-irliai»ent boundi^lict
marsh upon tha 11 or lueh m mill
called C* rash -mill, I' Wst. It 19 tK>utided
on the hi^h-iray kadm^ lu Hatctiff, on tbft
Nortli» which ii caJM ItatcUtf burh^way to
thiiday : it ii bounded to the river Thameicio
the South ; and it is bounded upoo tbs KNni
of ilatcliff towards the £a«t.
AfUrw ardi, in;H. Stb'i time, coroeii in Richard
Hill, who Has owner of some part oi thia marvk
(Vailderdeirs moiety ♦) and be in time, 23 H.
8, became indebtad to one Salvago and ^noiher,
and there he comes and ackno^i^li^dgea m italiite
to thera for their debt. And (because J woiihl
bate you have a^ things before your vww thai
were done at one time) in the aame year there
is a mortg^age made of the land$^ of Rid^tri
Hi 11^ (amon^ which » they for the defendant «p«
prehetid, are comprised the ianda in ^tKitio>»
as marih-tand, to 8alvago, i'or ibe pftvoMot if
their money) and in tliat mortgage dbe mmm
words are made u»e of tor the bi»undnn«i, a«
are in tJie draining act. Tbia, to deri¥e tjieir
titlp, they produce to shew^ that there waa suck
au owners(hi|s and such a mort^ag^*
Then they teli you, that, in 57 H. 9, i^
same Kichard Hill, l>e ^^oes and diridca 1
|iart of the&e hinda, that ta to aay^ eleven 1
and an hulf, aud that be eonreya tmmf kf
lease for S4 years to Marcelluff Hall; whom
I name the mare particularly^ bicause it is a
name that baa been much canvaased, and p^iS
a countenance to the title on both iides, TOir
in that deed, wtiereby this is thoB aonfiyad t»
Mapcelluji Hall, iheiv ig no nolkl*^ takitt |wr-
liculaHy of the eaittet n l>oundary to be tbt wMl^
or the mi It- bank , or the liilty ' bank . Now, my
they, tbe mill was juat a^n tbe p<Mnl» l»atd by
that place that is called now by tbe aame of
Cock- hill ; and so thai boundary doth take hi
the tiling in qoeation, Iba mwmi acres and a ha)(
because that deed takes notioe oi the miU^ billy*
bank, or way.
In the next pbice tbey olfer you this for eei-
denee, that in 5 Ed. 6* tlia rame Richard Hill,
for 150/. aaUa hta luud to Tiiomai» Stepkina,
Ami w hen tl coaxes to convey tbainlMiritaiioelO
him, it is laid to be under the aMWe boimdarl^i
at are mentioned tben^, bevnded on tbe billy*
hank or mill-baak, eastwiird. Now^ say ihey,
that abeweth plainly, that still tJtc mill was tba
tbiug that was intended to be tlie boundary ;
and there being seven ucres and an halt of land
between Ibe mill and tbe western bounds, tliose
seren acm cannot be conitntrd to t^xteod to a
mill with tbe app\irteusiic«», b<»t rather it ia f0
bound upon the mill and include the lands^
than to have the landa go witb tbe mtll
Thtfy pt^^«^ fttrtber and say, tbat Thonits
Hiepkins, itte same year, did for 50/. loli Hhi
to fllarct'tlui tiall, for 196 jearsi at a pcoptr-
com rent, nhtcb lease expired bat in 1680, end
tilt now wc ooidd nat oome ta litlfile llif|
STATE THIALS, 36 Chari^is 11. lda4*— TAe Ud^ % j Trial,
inttt^» beouise he had made such « lecKe.
Bill then f am to take notice by the w»y,
auij so must vou into the ban^n ; 'there is an-
other boundary aiiuic thtit;, ahottinjBr on the
well (Ji ' 1 8hadvyell, and the wuy leaii-
ingitj 'J tt> the Lyijohes.
AlW viii>» itit'v come to tell you further, that
Mtltttllus Hilir^'i l>vc. 2*»id'3 Phil iindMur.
lett ft lease to Carlrr, ajid tlt^a uas tor 30
vean. Now you are to take notice, that in tht»
|eaa« of Carter's rhere is nuttce taLeti of a mill,
mild about an Acre of loud therteunto belongiu^}
very carefully fiirt ia ; Juid that, say they*
ahewtUi that youv boundary coukl not extend
10 %o much as seven aritsi.
Aud to iMifk tiial c vidcuce^ they shew you
a cert^iiu i^uney, tjiken m Uueeti Ehzabcth^s
time, concerning^ the manor ot'8te(mcy, which
you are by consent to have; with 3 ou ; aud you
will do well to consider it Hell in yourpcru&a)
#fil.
And iMiv comes the main deed. 8fty Uie
MiadMilV oooDfid, it falls out that ^ ou are
but leapee under Marcelius II all. who %vas
liMee under us, and wsj ^idipneJ in a |>articu-
lir covenant, that he should not lett uny part
<»fthi« land without the Ucvoce of our ancestor
^ttepkiuK, who made him such a lon^ )ea»e.
Dut it happened he had a mind to lett some
paiiofthij land to Ihedeao of Pant's, from
whom he had a leise ot*the mill. And accord-
ing^] y he had a licence from Stepkins ao to do ;
%riiich say they, is the reason why they come
to l?iy diiim to our Und. This they take notice
to be in lime, 16 Nov, 2 &nd 3 PhiL and Mar
wJieo I must tell you by the way, that the first
lease pretended by thcrn ta lie made to Marcellus
Hull, \h the lonV une, 6 Ed. ti, by TlKinma
Ntppkuis ; so that IVlarcellus Hall came to be
leiiee under the dean and chapter, before be
had anv authority or interest from fiitepkins,
my before he had any lease from Hill.
Ait, Ctn. My lord, if your lonkhip pleases
to remember, MarceUus H all did tirsl take by
Inae from Rich. Hill, iu sr H. 8.
X. C /. Pardon nie^ Mr. Attorney, I did
not mis- repeat it ; I say he llrst had a lease
Irotn tlie dean and cliapter,
Au, Gen. That was of the mill only —
X. C. J. That iR contested, and the i ery gist
of the question i Mr. Attorney, how much is
comprehended in that lease ?
But to Qo on with the defendaDl's ef rdence.
Tlien iu Nov. 2 and 3 PhiL and 1)1 ar. is the
deed to Roper, of which f shall have occasion
io say more aoon.
In 5 and G Phil, and Man comes Jasper Hill
the son of Richard Ifill, (ihe tirst owner of the
l^ifit, and that ent£*rcd j|iio the stitute tu Salta-
f<>) Ut' makes ti conveyance to MacheUneHtep-
in*, Thomas '<* wiiJow, and John Sicpkms, his
heir, mother and son \ upnn which, ailer%vards
tliere is a surrender miide by i\lart dln?i Hull to
John Htt'pkiiiis, son and heirof Thoniiut, of four
acres; which hny they was not aMbagpiid witli
the otlier seveu to tht; dean of Ptuit's.
Xhen ia 3 Elizabeth , puc^oant to the con-
' ib'C 8iqiki0i^«,
vuCered ; bmI i
i.c» of than tm
iiid his Diotbfr,
inalttbitK
'^UontoMlf
EMnk^ m kiWy-
and likcwi»f of
veyance made by J<i^
there i% a tine and
Ehznbeth^ adeerl to
which arf to John
and the heirs of John.
deedd and cooviy ances, tli
of the mill, mill-baok, or iii
way, to be the booiidarieii
ShadwelL
After that, they produced a bood^ wbavtt
Spinola is bound to 8lepkin» to take otf tb« ita*
tutc entered inio 3'-^ H. 8, by HK^hatiJ Hdl.
Then 14 Eliraheth, they produce a comini*
sion of sewerst where notice is taken of tiie»>
veral knd-liolders of Wappifig'tnarsli, «ko
were liable to make satisfaction for a»y wasl
of repaint or defects in the marvh. There fioi
per is taken notice of as a tenant, and one Jsimi
Aud 8trpkins too: and they do infer froi
henrei I hat Jam - " * ^ - \ l»nd is part <f
thiTi, and was lu ud is eQioy«il»
tliis day under i.^v ,.,.. .-i ;..^ .Stepkins^s.
They go on further, and fell yoa» ibl U
Ehz. ^te[>kins became indebted to tb^ cumh^
by taking a teller's debt upon bitti, sud bad i
mind to sec^nre Ihe debt, and tbCTcforft i4WiiH|i
his land to the then treasurer, ttHotney^genml
and solicitor- ^neral, to secure a er^at sun if
mooe)^ ; nud this Und they would bare to pi*
aiDou^ tlie rest,
Aikrwards, 17 Elix. tl, -sionnn iit
iigatn»«iid there is a rel<< t all tlMSi
that were l&ud-botders, tiit: hAuiv named b^
fore.
Then 7 Jaeobt, was thw* a r**
the crown made to Stepkios
Wherein, gencraily ipeAkinipt tii
lands belonging to filepkifis are csIUm
bank, ^c. This roust, say they, ( i
take in the lands in ouistion, otherwise ii u tu-
possible thai shoulct l)o the kmuudary A?^4
they make use of this further argurr
they, we have taken a survey ol'ali
those in quoitioM and the utln
from Hermitapt!-dock, alias >
eren to this miii ; and ildotitju^i mnuuui mr
numl>er of acres in the act for dminin^ W «{»•
pin^' marsh ; that is to a«y, it make^just i30
acres. All which, they say, plainly bebngsli
the Stepkins's*
They tln^n come to examini tbeir linaf »l^
nesses, and they have ptoductsd tbtm in Ibit
order as I name them: their witneaseabstv
been as they arc iu my paper. One Boglffi
and 8omerly, ^d Hohues, and Barduot^ ai^
Cope, and HolewelL And the subatanesif
what they say is this ; The oUl womiin, Bai^
toot, says, she has known the pUct* in queitiuD
these threesoore and o<ld yearn ; ntie renitiii*-
bers well the situutiun uf it, aud that the wilir
drove another mill <in»t, and did not come nttt
to FoxVlane by a qusrtcr ot » nnle, but tun
more to the north. ^Vnd tliis lund, sbe«vi«
was always reckonml to }» %, aodaw
never knew any one hat t; .10 dot
but they. And in Aii much m tl«ie 1
di»coii»Q coQ€4:ruu^ a well} aba ■KjBp.ahl^
[mi
♦ the
rni] STATE TaiALS, 3€ C«AAt8» H, l6S4ir->r frrtat Pari pf Skadmll. [639
Ml ftlBenber th^re wu a well betvrc«n F<hc^«*
liai,aiiilUti!iiiail, &!! ' ' v *^^ % nuteoflf
i% m ^-^ .^ .. ...t*t' were as
a» paries in tlic* glass
jfB ;, ., .,u u:o» tlie riuht well,
I iras ao ottusr well c^ilkil Hliadwell,
, lie remembered ihe
<m : that ut coiniJion
I tn C4iit)e up to
vcr it; but tUe
'HJClllHt,
1 liUkuow-
i^rij - and ]jt; ia
^ iiovv fur ^reat-
..;,... ,n..n; the mill ; Init
, ivas tho way from m>Tth
it' the niUlt aud he kiieiv
rd of tltti null but FoxV
I is tnFtrt'ard of/tbe mill,
n>ny oftlio
1, _ they coo-
til . ifr surveyor HoIb-
I •ril, iboifi tlic AiliiiL. 1 1 ; ! u (U. And thi!«, as
[ Ilii9eiiilicr« or can Tecolleei:, is the substance
lCibtMaidf|fit%ciidcxice» beture the plaiQtifi''3
Am tben as to that which was ofTercd by the
lffaodiatt» ai» ctideocc of tlit; boimttaries, the
Apmbflre tltis Jiiwwcr; and it is that which
I pmMng i|ucstion in tliiu cause to
Hy: IVb<?ihcr or no, Mill-bank, or
, or the Hilly -^vay, or whatsoever eUe
fHWcilM io t ! m1«, be DOt that which
Sij tlkcj. &ra, by > our own evidence, (ihat
sftcieiit lui^ey that you prvdiiced, tiud
■^ ^^ coo*. pntlemen of the jury
^wit! re i* notice taken of
ftt ' luarsh; tliere is
c»< OS lielonging' ti>
lciw..^» o» k ..mTs, But then in
kya>M|fn|ilt of the bacKjiide of the leaf,
flill iSs fcr^'ond biil^ fni distinction sake)
[T^wiDfiudi! of ; which 8;ud
iilaiiil^u I is hereafter men-
1 4m ihe tiaM,^ And what are the lands
IW cicotitmeii 'f 'Hiese you will find ;
I lliiii, liol«ir9i by ih^ dean and chapter ot Paurs,
i\U'A Derrick- bills, another
iitid several orchards,
! a water-mill there*
It there was on the
iii, oroburds, gardens,
"'»ttT»^ ponds, fisb-
I other tbitjf»^8.
uijilurieii of the
:ik of, how
, ynnr fiwn
upott
• dean
ilu V come
I fed to the
ll.niA \>} the
I hand I liiiid.
ti|K»n tJJtt ij< vTj uiuy the
iltaiV "
[Mapiiiurib
I mm, if in ci-
ioiii«r ti;
1 it Ir^ pB^(
y, moke
ilaathiOiii'
I Ml diaiMr oc
liin^tLiMri
* imtk and dttf K!r.
ilfM iLai Jtef« Jmsh
better Qoderstand it ; and yoti »ee the eastern
part of the mill ^vas Uie waste ground, and
made u hine lo carry down ballast, a^ itie wit-
nesses say. This doth just Uutuour all the old
bottadarles.
Nav, to shew, that tlm 'm really so, they
nay^, that in time, jti the year t6\5, theii: wa«
on action commenced tclbrc my lord chief
justice Ooke« when he sat in this court» where-
in this controversy arose. Pox, wito wiis as
well tenant to the liean and Cliupter of 8l.
P&uPs, as he was to Siepkius, lie comes, nnd
he builds upon that old WidI, called Wall u;
wall, which begot a contest betuixl St ^
who was the anccsUir of my loijy Ivy, ;uni itii«,
Fox ; and upon that conles^t tlii« wris the *^ues^
tion, Whether there had been any iucrouch
went upon tlie marsli ':' Not but that the wall
was reckoned, even by Stcpkins, to bt- th«
boundarj*, though running, as Steokins said,
twonty foot into the East part of the marsh ;
and tu«re Stepkins was non-suiied. AAer*
wards it carae into the common-pleas, anit
there was a vtrdirt, whereby it was settled.
that the whole wall belonged to the Dean and
chapter of Paul's.
but afterxvards Mrs. Moor, the lessipe of tho
church, woidd not be quiet with this, but exlii'
bits a bill against John StL-pkins, and othcr^
and to settle the boundaries, hecaiL«e ho pre-
tended incroachments upon his ^ound : iliey
therctore require him to ascertain the matter
upon his oath. He in his answer confesseth^
he had heard of the verdict before- mentioned^
but knew nothing of it himself; but when h«
comes to set forth the bouodar'^i he is so far
from taking notice that the boundaries take in
the lands In question, that he tells you ther«
was an ancient bank, which was the ordinarj
bounds between bis nuid and the land of the
church ; and this is a high -way, a commoa
high- way. But it was true, as lie believed,
they bad inc^roached,^ though such a verdict
and noosuit were obiained by them. Not that
ever he pretended to any thing on the ttostem
part of tliat passage or bank, called Fox*s-laoe i
out he pretended to twenty foot on the westerit
part of it, as an incroacbment.
They say further too, that notwithstanding
all this, John Htepkins was -not so confidetit of
his title to even those twenty -foot on the west
part j but that he comes and makes a borgaiii
with another man : I will lett you this ^asfc
part of the marsh-land, and if 1 recover dny of
the wall, you shall pay such a rent for it ; but
if not, you shall hold it us you did befon^. So
jealous he was of his lille, even to that which
he thought was iticroachcd upon.
And they fix it thu^^ to humour and explain
the particulars mcniifined of orchards, ponds,
t;anlc'iis, «5£r, for hirrc were a great many
i»luicf^saud cuts for the water to be received in,
and so all may well be comprehended under
the name of a' mdl with the appurtenances ;
ami (lint they say gofHh a great way in th«
qu#atioo» Y'ou ore to couHider of it, eentletocs,
Tlicu tbay fuiibiiT NheW| that wliorets tlvi
STATE TRIALS^ 56 CiiAftL» It 10i4.— Tk i^if A/» Trmi, [I
I
> tile kmodtry to be fUMdwdl,
ti4ire Ut be jtteci'il » trr«»t
^*Jmrc caUed Cock nill ?
;^ iii«fi llmt telk you, be ktiew
le ^liee «itj jeai* ifo tnd abof e, mml tbere
tt no otb«f wcU cuffw^ V!iif..Ui.ii, hut that
rhteb WM wbfiY til*- iridi* and
)jiit i« (HI Uk* weft pur t . Now I
•>Uy uuou the eviiiericc ii is pretty
v»n<(« lie given sucb uti acooitnl of
^ll tliAtil v*<»ji bricked o¥cr» and a eoinmoti well
atl piH»rdr, which must make the ihiiig-
iry nc»ion<MiK ; ^rid Jie never beafd of any
her vfclU'oiUMj KhtdwelL It U trup, there
ht btf a ■prLu({' on the one side of this
ttd m quealiotn and Uil^ other; you hate
I tii« evidence on both nides, I must leave
i large to you.
iMtl ta nak4* tlio thing more nlam, they
r to yon lilii tlib waa a tide-mill^ and not
^m didfllidant pretends, on overshot-
. , anil that m notonouKty plain it is
, and it in agatnat Ennie it should he other-
Here waa one thai wmuffhi at the
and hU father heforv liini, nixiy years ;
» it ap|)eani that to havo water to dnre an
■ahut-miU in that plac*e Ijjust drmvn the
^%faole kvel, bc^raufti' a inuat h<f n&iseil so much
IliK^er than the nheel ; and if go, thai stands
**'^ "Tlhan tlieplaec, were ttraned never so
called Fo\*i-laue. But there
^t)d<-« that eanie within twenty foot of it ;
and yuu miM ^ive me leave to tell you, 1 uu-
tierttaudio nmcU of it, that a tide- mill i«i never
1 to have the water juat swim iin and
'i ai^ain ; hut they have cuts to retain the
water a white, that it nmy |fo the easier olf.
And 10 th« sprat nuiuber and leui^h of the
Oittt and pond«» and ditchev here, w ere but oiity
ficeptaclca and bayous to receive the tide,
which did not rise (nt tliey tell you it thouUt
ni>L) ibovr half the wheel. The nature of the
\ itapif tpeaka ai^ainst what tbey would
) tt In be ; aud to «tten|^ben the ari2ti-
, tiiey hate catled five or atx » or more
Mca, that hftf« known it all along ao to
au^ yet ijbit 1 aypehend, the other lide
lako In b« tb«r noil oial«nal point to make it
manh'muiKl.
But tht ooobmI lAir iho plaiotjiT say this
funlier to you : TIloy bavo a aurvvy taken
the
tbat it was stimnfc ibis shoo Id be
aanaod Chapter's ianda, in a
[« Wito ooO«atiaattd Chapfeera ;
wMoMit wtiinmryod aa that whteb waa so,
wbilo llMtO wore ttto^ tbiw aa DmoA and
CbapHra, ami il waa in order lo beaoM as
«Hk* Ami upon my w ord. if the laods of the
Omii ami CbiJ^tarH iohcrttooca were no bigger
tban tb« diiiliilipl would bore tbom, there was
ogoo4r(Mitkdotti«po«dto tboatato fWibeniiU
oiily . Bttl alii ! yon bavo a witMP tiiai tdb
lou ^iberobaimf to the wanwf mwtldm ofooie
Craveo,) that ttiora wii a ClAmi vm tbe cioi
lunner to you : inoy nave a survey taj
m Ubvar'a dmoi wbi^ ibey nrodnood^
wst9 oppoacd by ttit ooitnael dftlie other siii
lod I iiMist confiws I did wooder to bear
pait of the gmoiid, f liat bad a larfi»
•tid girden, and ground. Aail wpoo tliis par*'
chaoemade br Wmterhnm, wliowaa hmttaX
tbe cbureb, tbe plaioii^ oowiooliAo nnai
▼cry conatilenble aigmeiit, ibof thiawiitk
ohnrcltV tnbentaocet For aaiT lbt7, wky
should Winterburn, that bad a leaoo m hag
which would have continued hiai lo boaoptn
poafeeiaion, and that too belbt« all ibovo bodvi
were built, (Air thev taOt all tlie fioo boiaef
were built since the Icing' came tn) ^rt 0,50tit*
for the ioheritauce under llie title oTtbe 0cio
and Chapter, if he knew (aa he must if he btd
the long lea«r in his |K)«ie«aio«^ andao Kaowki
sweari he b&l) it was not tlieira ; and be Mm-
sell had a lease for thirty years to come, mkr
a trivial rent of a pepper^ eoni. Etpecwilf
considering that those timea onld lotOfiBf
penny-worths of other people's latida,
HiU then they come to the la^t point nf eri-
detit^e^ and that you most rery narrowly ob^
serve and weigh. Say they, becauise you df»
pmd so much upon CaHerV^oaae, which ttkft
notice of such and such boaodanes; andiil#
that of Roper, which you pretend' to be mark at
inch A time, these, we say, are forged* koi
for it they ^ve this ofideiioe.
The |]r«t part is a natural, kgal erideoeei aad
a proper evidence in tbinafs of this natafr, lo
detet^t a tbrgery; an eriiRnce *'-*■* — leani
out of our hor>ks of law, and it utm*
tative one. If jou produce decw . .;,-„^ ;u soil
a lirne, when, say yoo, such titles were osf^i
and such prefaces maile to them in tbtir po*
amhU-s, when indeed there were no aticktilbi
used at that time, that shewt-tli your daodiiio
counterieit and forj^d, waA not Inke drsi».
And there is Digitus Dei, the fing'er of€ad aa
it ; tliat though the design be laid deep^nvt
the cuatrivance seulk, yet truth atwl jiBlk?rwi8
appear one tune or another ; and tliottgh tbey
timy put some gnit upon jnatic« for a obibt
yet' it win in titne be diaoovered, to Iboonib-
sion and shame of the undeitakesm. 9^ iktf*
you have taken wonderful eare to bifo %A
(iaeds carry the tame flofiriab it Ibolspof
each yftheni vtu call PbiKp Mid Bfivy vllg
and iud both SMIlei ; oodfot
put ^' ' ducal oltle, bolbi i Wmm t
this is Ui« language of bolb doedOf bvllbli
sliewetb them notto betrtie deedii, Ih
Ibrgery mthoYtry ^eeof tt; for]
Mary never oame to wtile tbemoQirei ^
3ueen oft!$naJn and SicHy, till Tinnkf iwiiyli
be second and third yeara erf* ibev iij|ii|
whereaa your deeds boar dole in Kowmdbtr b^
fore. TiR IVuiiiy toftt Ji^to woo o Wag'
doiii,andibey weMhUpthMOi of S^ »i
Sicily. And booMlBO* ihi^ woad alMp %t§m
duu tsnw. la pm UBbm onong the MbImi
6r«l belbre Butgwiidjr*
Per iftsiftooeo iM proo6 of thia
thc^ahew vou the litlea of llie«ettof'|
»enliti tfMt ]p«or, lo Cktiber, Hawibii
Deoesnher; they tiN-w yoo the teae
IB HObfT-temi* aad CssiM nii, md Ttm^p
tetm; ttft whkh lennJh^flM^ff Ito^hl^
«41] CTATE TRIALS. $6 CHARtES 11. J66f-->r grtei Pmi ofSkaimdl [64«
fkntt^ of fioei nml reramis^ borv^njl the old
'Mflf?; nod »■»*''' ' ' . 'irt"
fvot fomllol < ' t
Jind »o nuL
iv<* nootficr
"k, ^9 lie
fur of t
»
■cnHint of a li
RKh llae «kfv)
•if CkiHi^ f
III
of
I'H to thf ir tiecds, aiiil
till <»i»jt't;iiuij ui
it.,
■,11 t^Mt .....,l/:»r.,
leeds,
vts^ou «n
it not only
i ^^, but it lm>ks
in too ; \vhf>, if
\x\*\ is a Very
II d, thoiififh Jie
^0 Ml •wra.i 1
j^inteiirUc
IrftVM A hlirr -n
,..,,.,,
pticiiiiiof to t"
tliat
mm Moiiatiu
^ hrr
ifta ber r»:«rtii
V^inr
iTid lent her. bt-
•*alll«r
*' t aiul
, *;3i VN sir
Om\^ f
t when
^br took
•AnwtifL
,i»t«npV'
n«iff l^r-n
MilMirl««i^'ixJ
iicFihft*, inv 1
vnMiT i>r ' '
bcaillntidlord. WImt nrr<fM) tliAt? I 8iip)>ose
it was Incited in m ^ " t j,^^
fore: UtiiliPinus^ i ih,
^ t'otli^rel i^
'■'•V, know u.^ Ill, irm,. *.i-., Jsir
take:i it ; and tliey t^vo, my
.1}^ iirewrittivKSPs to It. Wbat
rwnisiii you hear, ud afv^Milutii de^
: yH all this wWiio n\y lady liry
sir Ciiarles Coi i>i*mhI iI^ wag
-\ 100/. to sir >\ Ikhitl) Um h
1600/. mving IWui tiir Wdliara, by
" to lit!r on the saini* house.
ft7't'/. My Ion I, I am ready to
rn;^' . x»d
i. f J. i'*rst <if aM, I «ay, it wns not well
done, if there IV ere Mich a security for 1500/. ti»
[»ersu!ide air €harl*?« to aecpp' '' ' use as i
security for his fourscore pcm ml IlII-
Id acknowlcdi^p Ijrrsblf in-
_ ^ ... -.^ ,. her takins!' the ftiin poitmts
from my lady 8alkhill, if ane had so i^rtni n
suni ovi'ing- her. And what w slov< nly answer
is ihrtt i^'ivc^n hy the counsel for luy iady Ivy,
that^hc>«nd othej'g wc^pe caUed U|ioti for nine
yeai*s diet i* uhcr^as sir Charls Cottoix4 swears^
ftlie otrned hpre'^lf npon llieacf^nnt indebted
100/. ar-' s no hartt" irt; but
thnt shi' lor three ., a year
iru s dc^th, as bUt naU \i s^emX
-M
I me er«mps this* business very home tition
IjuIv \\\ - ]\fi\\ rnin['-K it to Tvn^ - ll'm
HO nerured, tf limisi^ aotV
\vitho\il nny r , tn ia Ihv
I rr^n heur of^ That in such a mtl'
kinrln^'w*:, th«t Ihoy winid do wp!"
.1 t&
my
tny
*V
.'?.
r,
I
*>f
-Lit
if
d
V
lilt?
to it, it was 80 precious and tcmler
^.It
i!ie house n\'n\('
hiilMeii I \ti\ , nuti vtiy sboutd iifhc be bo
(*i l!m»r t'Vi^ lt:Mr— T, rrrnniv trptui that
act; 'J' lii.>*
V ; I niUbC
' '''"wn and
a ion ut
I \nth
tj iir tirtii**
sir Chru s.
iJuffctt. . ^r
iufo bond not tt>u«>siurb t; tU.
Then thei'c conit'S ;- . i deuce, and
that is the g^ntlnvoman Miii, Duftett* whoit
seeius they would have to be a h >•»»;«• *«ort ^f
cre»turi?; but incnhinki she has a nd
oiith uj>0Q hiT tiJOi^ne: for she ti y
643] STATE TRIALS, 36 Charles II. l684.— 7»c Lady hjfn TWi/, [644
was Gk>ver*s lease aod other things, and all
for my lady Ivy. Nay, she tdls yon my lady
Ivy was w> extraordinary an artist at the ma'-
naging^ofsuch an aflfairy'that this master work-
man, DuflTctt, was nut so dextrous at it as she ;
for he could not write tlie first great letters of
the names that were to be nut to tlie furgiHl
deeds, but she did that herseli* and the rest he
did. flow far she is to be believed, i must
leave to you ; vou hear what is objected against
ber about the froe in her belly:* and ? do not
know what; whether that will take ofi' the
credibility of Irt testimony, I leave to y(»u.
8he doth give a very free and large account
how they used to order their matters to make
the ink look old, (as I said) tiicy put snflron in
It ; then they rubbed the outsider of the deeds
in dirt^ wimiows, and after that used to lay
them in alKiIcony for the ruin ^oconu;upon them
iu the nights, aiid to dry tlieni in the sun, or
by the tire, to shrivel thorn n|i. And this she
aays was tiicir metluHl, and process ih«'y .n»<ed.
All which the plaint if}*':* counsel urge, to sln*w
the probability tliat these deeds of theirs are
forced.
Then they tell you, whirh is yet somew hat
more to strengthen her e\ idont'e, there i ; a
woman, that though Mie speaks out of Mr.
Dutfett's mouth, and that can be no evi<lcn(*e
againfit my lady Ivy, yet says, she nrccivcd
from him a parcel of letters, which arc suoni
by sir Charles C/Ottercl to he all of my bdy
Ivy's own hand -writing ; which letters have
been read to you: and they shew a great la -
miliarity l)ctwt*eti my laily Ivy and Mr. Dufl'ett,
a great care and eonciTii for the promotion of
this I)uHctt,the grutlcwoknairs husband ; and
of stnno deeds that were likely to Ih? thought
new and suspected. And she tells him at the
latter end of one, that she is i:olieitons till the
trouble be over : itnt she was resolved to set
on foot sir William SalkhilPs mortgage, and
if that thing did go well, he should have half.
That supports the ere«libility of the woman's
testimony : hut b«. sides that there is another
tiling that b»oks very untoward, because Mrs.
Dntlett doth directfy swear, that out of the
1000/. paid my lady Ivy by sir Charh-s Cot-
terel, ^lOii/. was paid and given to her husband,
and 31 r. Sutton forsot»lh had 200/. more: for
what service, I wonder, nuist njy lady Ivy U\
so lilieiai to Mr. Sutton and *ftir. Diiirrit:*
Air. Sution shulBe and rouse hiins«:if as In-
pleaseth, it will stick upon him ; ani! I w.wx
confess it looks uiitowardly, his gel'iiii::' :i y
lord of Salisbury \s leas<! tJpiek not(s Lztor
it, and then to have such anmrtj^au*' ;:-:.i-i:!(>ii
up in this manner. It \.y very lank. J ;;,>>urc
you.
• Concerning the op-iralion whicli llu: i"i
that a female \vitne:«s had p:i:is(>d a !t(::- <>. ..i-
cominency shall have upon hir f..v<!ii>.:i.y,
much was said in the House of (.'(•jiiiiir.>i:. • \'\]\
occasion of the Inquiry into the Cunduci ' : \iip
Duke of York, a. u. 1809. iSec VI Ctb:*. J ..:!.
Debates 179 ct seq.
This is a substance of tlie eridence tliat has
been ottered by the plaintifi*, to prove and in-
duce you to believe these deeds Ibrged.
Now, in an>'wcr to this, they on the other
side would oiier, that sir Charles Cotteri-rs
evidence is a surprize upon then). The^ say
they have such a \>ritin<f, and such and such
deeds, Glover's lease, ami Salkhiir^ mortgage ;
but they are Tiotpreparetl to give such an answer
as they would have done, had they had notice.
Here has been hkewise great stru^hug and
striving to have the verdict read to overthrow
Mrs. Duflett's testimony ; but that cannot be
allowetl to be given iu evidence between these
inrties. Then they would have read her bus-
band's oath, he being dead ; but that is no
poiiU of eviileuce at all neither ; for in case
the man were alive, it uould not be evidence
what he shouhl have heard his own wife say.
If both of them indeed had been heard together,
and testitiedsigaiustmy lady Ivy, it hM been
go<Ml evidence ; or they both might nave testified
tor her. But by the law the husband cannot ba
a vvitnc-sR against his x>ife, nor a wife against
her husbauil, to charge them with any
thing criminal, except only in cases of high-
treasou. This is so known a common rule,
that I thought it could never have borne any
tpiestion or debate.
This is the substance of the evidence on both
) sides, as near as 1 can recollect ii ; save only
that which indeed I should have mentioned be-
litre , the defendant had produced an exempli-
tication of a verdict obtained the last Michael-
mas term. To which tliey for the plaintitf
answer, we were not then prepared to answer
your deeils, which were very ni.v/, surpri::li>g
anil unexpecteil to us : we have now given new
evidence ilial we never gave then, and it was
a verdict obtained by surprize : wc now shew
our boundaries better than ue could then ; aiui
so that they make to be the result of the whole
matter.
Now upon tlx* main, af\er this very long evi-
ileuce, tlunigli ih(.> ease has beea darkened Si*
much as evir any case could bvi endeavouicd to
be ; and though the event of it be a matter ui*
coiusiflerable value, yet the matter of fact is atf
clear as the sun at noon <lay ; and a plain point
I'f fact it is, and must deiK.*nd upon. \K wc ^^
admit all tiiiir deeils to be good deeds, viilboat
any consideration of the tbrgery, pro or coo*
\ei if the uiiil-pouds, ditches, orchards, g[ar-
der.s, See. can be taken to be seven acres ; then
the boun'larics upon the mill or hilly-bank*
^^uich may well be Fiix's-lune, that will an-
swer b^itii ilie deeds of the plaintiif and of tb^
defLiidunt, and thoii;2-h never so many houses
lie Ijuilt u}on it, it will signify notlung in the
ca.se. And that it is so, w herJas the deicndant*!*
surveyor S:v.;ars, that 1.^0 a'-:t.s ^vill not b«
I'i'idc up without the l.juds in iiiit>lion; the
pliintiH' has l.r(iu;^lit two suneyois, ibul swe^f
there is full IJO acres, and more. v. iilioat theiu-
So you have two sarvcyors on the i)j:c siilc,
and one ou tlic Other ; auJ you yourselves ba^«
*ie\ve<lit.
613J STATE l%IAtS, 36 Charles II. \6&i.^/ar great Pari oj SkaiweU. [616
AilfT this long' evidence, {jrentlemeii, yon
bare had as good an account of the substance of
it, at 1 can by my noU-fc and memory recollect.
Ifany of the fvi'utlemen that are of the counsel
for the plaintiff or for the defendant, do think
I hare omitted any thinj^ that is material, on
either side, they have free* liberty to remind
the court of it. You are the judges of this
bet, whether this land do of right belong to
the plaintifr or to the defendant : And I leave
it to year consideration.
matcriam sequen' videlicet, ' This Indenture
< made the ISth day of November, in the 2d
* and 3d year of the reign of our lord and lady^
' Philip and Mary, by the grace of God, king
' and queen of England, Spain, France and
' Ireland ; defenders of the faith, arch-dukes
' of Austria, dukes of Burgundy, Milan, and
* Drabant ; counts of Hasburg, Fbnders and
' Tyrol: Between Marcellus Hall of Radclifi;
< miller, on the one nart, and Richard Ro|>er,
< citizen and Salter or London, of the other part,
* witnesseth,' &c. prout per pred' fateum et
coiUrofuct' factum plenius hquet et apparet
Uuodq; pred' Theodosia Bryan alias diet'
Doinina T. Ivy postea, scilicet die, anno, &c.
apud, &c. scient' suhtilit' et false pred' falsum
et fubricatum factum publicavit et puhlicari
After « hich, the jury withdrew to consider
«f their TenK<^ and the court arose. That
ffcunjf the jury gave in a private verdict be-
fon a judge ; and appearing the next morning
lithe par, were called over, and demanded if
Aey did abide hy the verdict they had given .„„■.* r ^- j» m ■ n- rr n
ih^night hefor^; to which they ans4red, i^TJ^n tJ *" ;:f™";/^"J.Pf^* MarcelhHaU
Yfs: which being declared by the secondar; s^g:}"-^'^^ deliberat' p. prefat'M. H.ubirevera
It be ** for the pbintiif," the jury were dis-
Cfluged.
IVd a DMytion was made by the plaintiff's '
cwDicI, that several deeds produced by the
Mendant, that were detected of forgery, might ,
It left in court, in order to have them pursued,
ud coBV wted of the fbrgery . The court, u pon
" ' s of the matter, and the plaintiff's counsel
f they would prosecute an information
rffbneryt the deeds of the 13th of November,
■ilCt Md of December, 2 and S Philip and ;
llifj, were ordered to be left with the derk of
Ae cnnrn till farther order, and in the mean ,
filBefheplaintiffto have copies of them from
|bt Glerk ; and by a rule of court a trial at bar '
I iiMicnd in Michaelmas term.
' h Trinhy-term there was an information ■
MBit lady Ivy, for forging aud publishing ,
it itid two indentures, as follows : i
Rex versus Ivy. |
hrenuTiON against the lady Ivv, for forging
and puhlisliing two Indentures, Trin. 36
Car. Secuud. Rot. 48.
«. Quod Theodosia Bryan, de, &c. alias diet' |
IVtadotia Ivy, de, &c. vid. die anno, ^c. Vi et j
iiaii, ke. apud Westm. in Com. Midd' ex ,
m prapr. capite et itnaginatione subtilit' falso i
<tnadHleot' t'ahricavit et fecit et fieri et fabri- j
OQcausavit quoddam faUum factum continen' •
eadem T. B. alias diet' Doroina T. I. adtuue
et ibidem bene scivit et intellexit dictum factum
fore falsum controfai*t' et fabricat' Anglice
forced, et non fuisse focium pred' M. H. neo
p. ipsum sigillat' et deliberat' Et ulterius pred'
Coron' et Attorn' dicti Dom' Regis pro eodem
Domino Rege dat' Cur' hie intelligi et infor-
mari ouod e^em T. B. alias, Sec. die et anno
suprad' &c. vi et armis, &c. apud, &c. ex suo
proprio capite et imaginatioiie scient' suhtilit'
falso et fraudulent' fabricaiit et fecit et fieri et
fabricari causavit quoddam aP falsum factum
continen' materiam sequen' videlicet, * This In-
* deutuix^, made, &c.' prout per pred' ult' men-
tiouai' falsum et controfactum factum plenius
liquet et apparet et pred' T. B. alias, &c. pos-
tea scilicet die anno suprad', &c. apud, &c.
scient' suhtilit' et fulso pred' ihlsum et fabri-
catum factum ult' meiitionat' publicavit et pdb-
licari causavit ut verum factum pred' M. H.
sigillat' et deliberat' per prefat' M. II. ubi re-
vcra eadem T. B. alias, &c. adtunc et ibid,
bene scivit et intellexit dictum ult' mentionaf
factum fore falsum controfact' et fabricat' An-
glice forge<l, et non fuisse factum pred' M. H.
ncc per ipsum sigillat' aut deliberat' Ad grave
dampn' ejusdem G. B. in contempt' dicti Do-
mini Regis nunc Lc'i^umq; suar' in malum et
periiitiosum exemplum omn' al' in tali casu de-
linqueu' ac contra pacein dicti Domini Regis
nunc Coron' et Dignitat' suaa, d(c.
0(7] STATE TRIAU, 36Charlvs II. iGSA^TVhl of Btillk of Jerritweoi, [648
314. The Trial of Robeut Baiilie,* of Jcrviswood, in Scotland,
for High Treason : 36 Charles IL a,d. I6'84-
Ci'iiTA JijsTiciARH!, S. D. N. Rc^ tentaiQpite-
torio Riirgi dc Edinbvirgli'vigissimo tertio
iUe niCDsis Decimbris, 1684, per Nobilcm
rt PotcntciD Com item Georgium Comitcm
de Linlithgow, Uominum Liviiic^towii,
&c. Justiciariiiin generalemtotiusllt^i
Scotia*, ot hoiiorabiles viroH Dominos Ja-
cobinn Foiilis de Ccnntoun Justiciarice
Olericum, Joannem Lockhart de Castle-
hin, Davidrm Ualfoar de Forret, Ru^^rum
Ho^re de Ilarcarss, Alexandnim Seaton de
Pitiheddcn, ct i'atriciuui Lyon de Carss,
Commissionurins Jiisticiariie dietiS. D. N.
Reg-is. Curia legitime alBrmata.
Intrat
Mr. "Robert Baillic ol* Jcniswood, Prisoner,
INDITED and accused, That where not-
witlistandinff by the common law of this, and
all other weli-jrovemed nations, the conspiring
to overturn tlie government of the monarchy,
♦ " Upon what was thus screwwl out of
these two persons, the ear! of Tarras, who had
liiarried thie duchess of Monmouth's elder
sifstcr, and eix or se>'cn eentlemen of quality,
were clapt up. The ministers of state were
still most earnestly si't ou Baillii^'s d(»struction ;
though he was now in so lau*?iiishing a state,
occjisioned chiefly by the had iisajjo lie met
with in prison, that if his death woiiM have
iatisli«Mi the nnlin* of the court, that seemed
to be vrry near. Hut Ihcy knew how ac-
ceptable a sacrifice his dying in a more violent
\riy would prove. So x\\k\ continut^l even in
that extreiuity to iis<* him L".irbarously. Tliey
wore also trying what could bo drawn from
those gentlemen airoinst him. Tarras had
inarrioii his niece, who was his second wife.
So they concliidi-tl that their conthlcnce was
entirf». Baillie's illnoss increasi'd daily : and
bis wife pray<'d Jbr leave to attend on him :
and, if lhi.'y tearwl an osi-apr, she was willintif
to be put in irons: but that wasdtiiiwl Nor
vould they suflVr his djiuirhttfr, a t-liild «if twilvc
J^ears old. toattriid him, ivcn \\\\v\\ he m:is no
ow, that it was not pmbalde ho could livi»
many weiks, ins loi^s Iwing much suillod
But uiKiU tliosi* t-\;i:iiiii;iti()i)s a now inolhod
in procoodiirijr ai^ainst hint v.attlakon. .\n ao-
cusation was sf'ril liim, wu* -.w the f-»riii of an
indictment, nor ifrouiiiUvi on aii\ la\i, lint m* u
letter «if the king's, in -Aliich lie chu>;44'd hiin
not oiJv for a conspiracy <<> raise roliollion,
but for \w\v.<i •^Oiragttl in ili" Ryo-plut ; of ali
wliich he i^as i. »w required tu (surLTo hinis<>lf
h; oath, othiTuise tlif co:.ni li \iould h'lld
bi'ii guilty of it, and pnicoed a^*''fMiiii^ly. He
Mas not, as they Kaid, now in a crinnnal court
upon his life, But before the council, ^>ho d.d
or of the established gnremment of tbii kfing-
dom, or the concealing, and not rereatiiig of
.any treasonable design, project, or diteoune
tending thereto; or the ttiistiiigp, aiding, or
abetting such as have any such desigfns^ ikici
infinr the pains and punishment of treatoo.
And by the third act of the first parliament ot
king iaines 1. The rebdling openly against
the king's person ; and by the tbretty- seventh
act of his second parliament. The resettingt
maintaining, or doing favours to open or notour
rebellers against the king's majesty k declared
treason, and punishable by formultuie. And \sf
the hundred fourty and fourth act of tho twrifth
parliament of king James 6. It is declared
treason to resK, 8Ui)ply, or interoommune with
traitors. And by the first act of the first swrioa
of his majesty's first parliament, It is d«clarBd,
That it shall be high-treason for the sobjecu of
this realm, or any number of them, leas or mon,
ujMu any ground or pretext wbAtsomever* to
rise, or continue in arms, to make peace or war*
only fine and imprison. It was to no putpese
for'him to say, that by no taw, unlen it wee
ill a court of inquisition, a man could be re-
quired to swear agrainst him^f, tlie tempta-
tion to perjury being so strong when adf-pre*
senation was in the case, that it seemed
a^ainsL all law and religion to lay such a snare
in a mnn^s way. But to answer all- this, it
was pretended' he was not now on bn life, and
that whatsoever he confessed was not to be
made use of against his life ; as if the ruiu of
his family, which consisted of nine children,
and perpetual imprisonment, werc' not more
teiTiblo, es{>ecially to one so near hh» eotf as lie
was, than death itself. But he had to do with
irK.'Xoiahfc men : so he was require I to take
this oath within two days. And by that time,
lie not beinir able to app(*ar before the cotmcil,
it committee of council was sent to tender hmi
the oath, and to take his examination. He
told them, he was not able to speak by reason
of t!io Inw .state of his health, which ap|»eared
very evidently to thorn : for ho had ahiio«t
dioii u hi If they were with him. He in general
pn»tr.ti>d his iiiiioconoe. antl his abhorrence of
all (l> A\ri\s against the kini:, or tho duke's life :
for I ho oihor interrojfatories, he desin'«l they
miirht bo left with him, and he would consider
Oieni. Tiioy prrsistod to require him to take
liis fnitli : but be as tirmly refused it. So,
ii^M>ii their report, tlio <!nuiioil oonslniHl this
refusal to be a o(»nfes!»i»n : and lined him
6,000/ and ordered him to lie still in prisoo
till it was |iaid. After this it wasllKmgnt that
this matter was at an end, and that this wast
final sentence : but he was still kept shut un,
and denied all at tendance or assistance. He
seemed all the while so composed, and eien so
STATE TRIALS, 3^ CtikViLtt IK l6§4*— /or /%* Ttmstm,
the ettmist of his royal j^^vemfiM^nl, of to Ivr y
war, or take up irtns a;rain«t hln tntjevtj, (^
juiy commiisionatfii by him« or tu cntkc
]> ^r oihei'a to iti?Arle auy iif his
iiinions, m'to writer pi-int^ or si.it'ak
u.4.> •^^'^'ij, ^iiat tutty ejipresB or fUH:l(ire !>uch
nai ti*'■nl^*^
Bwt the tinktf was oat *«-
Ho the ministry npplitd
hnt the c«iie wn^ n^
on to the (MTson wiks so
t liiiii vms so ^t^at, thtt
1 hope i xm:d iitnke no apolog'y Ibr it**'
1 liiiriiet, 585.
Ihf^ they
►' fuuli.
MOb to be
)r t hut had
Ih> donr,) htit &s
\ ihr jury, atitJ
ti tml, Ami tifjim
' . i' iJ«Hi con-
<)«iv : Si)
ermicc to
i, that lit
iff anr Se
I lie, m^ the dtike*8 ;
'•f ihf fftn-frnrnpnt t
to no par-
'■ '*rtliv LTji -
1 .,'-:i-,-, v^.,-.
Akiut ei^ht ve&r:i liefore thi§ trial, Bai)]i« of
J^rviHwooil Utxti incurred the displeasure %ail
evptrienced lUeReverity of the Council of8coi-
Ifttnl, Wodrow, (\*iC I, p. 421,1 give« ih*
fulluirm^r account of what occiirriiu upciii Uiai
oc'caisioQ :
** About tfie middte of Jane this year, thert
11 Bnempt tipoD tht* reireretid Mr. Jomn
ri, hefoi'p the restorution nitnislflr it
anj since the revolution s nw»st m4?fisl
miirister for a ot>od many year* rii the city of
Edinburtih. ^tell known to'tliis churt'h. Tbift
aHiiir kmdled a groat Hftme, and vr«s the oocm-
^iton of sonje very comiderahle ohangvs. I
shftll g'lfe ;nj acconni of the matter of fact,
thmi h nurrativc lell of H by hrmsrif, who con Id
only ^ite the ftccmint of oumt riri*ii instance*
relative to it, and whost' veradty I know will
I : and fhpu I shall sobpitn
I anent it in the council -re*
*' ^W\A is the lai^er,
L'ti very fjilsly rc-
^ ^'t not,
it the time me^ntioncd,
«
m
■n.
■irii!
atWrwunU to know both to hist i:4»!»t. du^tdlm
desired to npenk a word with Mr. Kirktoun ; Mb
he answered, He Bi>iiU wait on htin»
iig no evil. Whrn walkinp;' off %&•
wuiib ilje lidir of the ^ '-at tHc
other (JanieH Scot of Ti i yonngf
1^. r»<N iiij<n wjuji, for he nas pi mciiy -i stmngw
I ii iut Hcotanflwered him with i^ilence wnd
MaitM'j, ; And thtni Mr Kirktoun fonnd he waa
trcpiint'd, nnd a prisoner. How^%er» hp wat
fjlad whf^^' '•" » '^wed him to « private house,
and not ►n, which wan near by.
"IIh ^ _ uy brought him tinto» wa»
Carst«ir»*s own chamber, ha ngly dark hole,
in one Robert Atexmndcr a hrw^mjyer bia
house. An iuon as Ctirstairs tjfoi him into hm
t'h:unt>er, he sent ofT Hcot and hi* footmiii«
probably to hrini»: so»Uo more of their <^TOp%-
When they were gone, Mr, Kiiletoim
hat he meant lo do with him. Car-
i^w^ercd^ Kir, yon Owe me money. Wfr-
l-j-A him, Whom he took him V* be^
\, Are you not John ll^itlhwf
Mr. Hiilctouu taid bt: Wis not, aft& ingetm^
he depr
what 1
pivij-ii-
one day v^
about noon,
aiiH
I
651] STATE TRIALS, 36 Charles XL iSSi^Trial of Baiilk o/Jftm
lUeir ucAsniuihle intffntioot^ \s <]ecl&red treasoQ
And punishftble vus. fiucli. l^keas^ by the is«vottd
act of' Kis majesty's third (KirliiLcueiit, It is de-
eUrud bigh-tr^ftsoa in any uf iU^t §ii\ijm*t» of
thi» reAlu), l»y irHting, »|iei4kin«r, or any other
i: \vay» to cndcatcnir In© iJicTiMB^
M , , or ili»en*ioij of" ib.' rur^j^ er^qr-
et^^iiiutt, nr lieburring^ tlie tu -v,
Nenrthde**, it is of reriu 4t.
Il(^'rt B«ilii« ul' Jer?iswcM>U, ftU^ikiii;^ (4 all
oii^ly told bim ufi ^ Then Carsliiirhi
r.zii\% It' you bf, 11 ,1, 1 have tiotlimg
to sAy to you. 'I ii u uv, iviiki<nm risked him
who he UftS^ lie utuiucd^ 11^ was 8c<jI of
EikiKouii» nhom indted he did pretly much
test-mhle; vci Mr. liirktfuiti knew noi whol
to miik'^of fiit'^ li.^iu.l, (|i ,,' w .• ii.i .H,v;vi<Mii,
g<?ther, Mr > ^ . ^ . ^ ^ir-
Stairt wanted motmy-. Jmd wbs j*Jst bc^niii^
In make some insiDu;aio(i4 that wavs ^'lifn
Ihiit exodlent g^entlrman, whom Ave yfjall mrci
with afierwarils, Mr. Hobert Buillic of Jcrvis-
wo(»d, a aear rtlaiion of Kirki4iuii*s, Andrf?w
litf'Vpnsoii, and Patrick Jotiostout^ iiiercliuaU
in ' ' ' ju^utsiime information of
M a ^ lances, and, iviib some
ilinicuuv ijavmy;^ Kiiieii up<>n the hou<ie| eatiici
to the door, uiid oillcd to CarsLair^ to oofo,
aisktng what hi- had to do uith a man lo m
dark duDgeon, all nlooe. 31 r. Kirkloim knovr-
ing the voice of his friends, to«>k heart, and
goi up^ ^yin^* There be lioti£-«t gentlemen at
your door, who will t<*srity what 1 aw^ and
that 1 an> not John ^\'urtUavr : open the door to
them* That, aay& Carst)firs« I will not, ilraw-
ing his pocket-pistol; %%|iich Mr. Kirktoun
perot'iviitg, thought tt high time lo act tor bis
4»wii saftrty, and grasped Carstairs clo&e in his
artnt; so mastering botli hiii hands and the
pistol, they strngijfled a while on tile tioor. The
^ntlcmen withuut, hearing the noise^one cry-
log out murder, burst open the door, and part*
ed them without the least tiolonce to Carstaira,
and as they and Mr. Kirktoun were going out,
they mct8cot und his companion returning*
'' Thus Mr. Kirktouu escaped ; but the
others inclined not to uuit thoir game to, hnt
resolved to turn their prnate violence to stale-
RerrioCt aad so go stnught to UaUoun, and tell
th^rov«n story, who presently calls the conn*
dl^ almost in time of dionerf as if all Ivdin-
httrgh had been in arms to rcsUt lawtut autho-
ritv* V\ hen the council gottofft*tber, Ualtonn
tells the story, as the TUlihts had rt^presentevl
it to bim, That some of tljeir public officers
hid catcalled a Pbaaatic minister, and tliat he
was lusicued by a numerous tnuiuH of the peo-
ple of Edinburgh, The council made a diU-
gusnt cncjuiry into the matter, and could Hiid
nolhmg m it to Inx U|H>n. Mr. Kirktoun had
taken care to inform his fricniU that it ^ as a
re*l robbery they desitriicd, ami a httle oiooey
Wftuki havedeliicred liini, rf hf and Carstairs
had got leare to finish their coniuiunmg.
** Jer\i*wuod was broiight before theoit and
gave them a very candid account, as above;
4nd when the council had gone their uimoAt,
they couJd find no more in tl j und many of
them were of opinion it were lM:'st to drop it.
Thi4 bishop ^orp violently opposcdj aiuf al-
it'dg^ed, ifCa<r»iair5J\s I
diBilciK
rourajftrd, and Jervi^
e^mfk,
!' ■■■ ' " ■ ' ■"■
- - - Iifo.
1m!.
1^
dit
4rt
s - -.
■4.
" \
nlf
hariii^:
iM*
JL^sly's ftdvoratc a^-iimNt >i
• «(
Jervisu/KKJ, for hi^ rr>t
..HP^
Kirkioun, und «l
had otdcrs to ...
1 be libel rcdev ant, anil ptoMjn,
pn)duccd by the captain, and
I* guilty of an iti!^dcni riv' n<.
aniltiue him in M>qL sterl' U\m
tu he in prison till lie pay
toll), the council were m a
\iUeu%e%im\ ui the inhaU^.^,... -^
had got in to hec what the council \^
$o odious a case, the (question wa% %U. , , .,.
ther alt the people in the lohhy should be un-
pr)«>onfiJ or not r* they escapr^l eouliiietiictit but
by one vote.
*' The council rcmittothecotntnitlceofpuk*
lie affairs, the examiiiaUon of AtKkcw Stcreu-
son, and Patrick JohnNtonn^ h ho are delated, u
\}i''\\\:^ art and part with Jm vUwood in tlie dr-J
forrement: and in July tJiey are finod, Mtd
Stevenson in 1000/. ScoL-ft, and 31 r. Joh
m 1000 meiks ; and they were to co
pritiun lili payments
" Thi« iin)«>ecution was mightily cri«d tjA
upon. The reason given by U*e ma
this sex^rity was, thr.t Jerrii^^vvood and i
were ;|^uilty of resistance to lawful
because canUiin Carstairs was a c^n
officer, and had produced his cointnia
apprehending outed ministers, and susn
sous, ut the council-boaTfl : but ihui
could not satisfy im^uirtial obscrvem, who 1
how InatteiH *itood* Ji was indeecl true,
Carstairs, «mne time before this, bad a
rant to this purpose^ granted biin by the i
biMhon of Ht. ^iiidrcws ; but it was well F
that, 1 do not know from what cause. ^
this warrant a ti ' ^ ' f i ti
Rlncardin^shoti dj
no warrant to ,i. i .i:^*..r m, .j,„^, .^t. r«ft,
they respucd I^Ii. Kirktoun, uetthtT oocc to
much as pretended any such thoxr
** And hiii production of a v;i t^ .
council was alW\>Hrds ibund i" . k .uut
contrivance of the primate, which wiU kie the
more easily civdited, when the reader cootea
to the case 'of Mr. James Mitchell * and lo o^
serve bis carriage in that matter. The ihiaf
* See ^litchePs Case ux this CoUeeyoDi i«l
6, p, ia07.
4
ASS] STATE TRIALS, 36 Charlbs II. 1 684.— /or High Treamn.
[654
fear of God, respect and res^rd to his majesty's
Mitbority and laws, and ha viiis^ conceived mo^
UDJnsily, a spreat and extraordinary mnliL*o and
haired against his majesty's person and j^o-
Temment, and having designed most traitemnsly
lodclitr bis royal hig^hncss, Iiis majesty's only
tiooH tbus: After the alledgcd riot was rom-
nittnl, and the iirst meeting; of the council
ow, the archbishop fimnd it eonveirient Car>.
itain 8hoi:Id have a warrant to pro<hice, and
accorJingly one uas pitnidfd, and tlic d:ae
«« taken care of, s(» as to aui.v.-cr tl.o tiuno of
the facts bein^ committed. It %i as this Car-
tfainprudiii'ed in faceof connoil, so thai really
ibcy went ii[K>n a base forge- ry.
•• Further, it was reckont'd u very odd step
h^ oolookcra, lliat a libel bhould be Vound sut-
fidently proven by the single testimony of an
■ftnMNis accuser, iirre likew isc a party , apiinst
the dttdaration of tlirec unquf stionnbly credit-
aUenilnesseff, and the cxaniiiiuiion of all tht;
wJiBcases wrho were called in Uii>> process : But
Sharp and Halloun must have their vlll, and
»the sentence past, thtrnj^h reasons stron^^
ODV
fledure, by seviral members.
*^ Notttithstauding of all these, the sentence
aiabove was carried, and this worthy and pious
fodnBan Jerviswood continued about four
bodIIh in close prison. I find him, August 3d,
hjoida of council sent firom Edinburgh to
Starii^ Castle, under a guard. He paid three
thomod mcrks of Ids fine to Carstiirs, as a
Rviidof his zeal again»t presbyterians, and be-
CMR he was an active agent tC the archbishop
ii his persecution. It was with no small dii-
inky tbii irentleman was at Itugth liberate,
and passed as to the rest of his fine, and not till
Iha eoart, upon better information, had dis-
1 aorae dislike at this unrighteous pro-
Some years ^flerward Jerviswood will
oaneio a^in in this history, when he met yet
vkh baraiher treatment. \Vithin two months
Mr. Stevenson and Mr. Johnistoun got out of
frisoQ, but not till Haltounwas presented with
a piece of nfood wine, ^nd a parcel of curious
hoe, and then justice was permitted to be done
aadnuuiy were utTered against this illegal pro-
*' In the mean time Mr. Kirktoun thougbt
ynpcr to try what he could do at court, and
■Bee the dutchess of iMiuderdale had not long
ago pmfessed very great kindness to him, he
fnsomed to write to her ^ce, and sent up a
ftne information of tiie affair, complaining hea-
tfly of the wrong done him and his friends.
Tms information was indeed shown to tlieduke,
vbo leemed mightily surprised at it, and owned
he Bcver met with two informations more dif-
than his brother^s and Mr. Kirktoun's.
I ft latile, by whom I shall nut !>ay, IVIr.
MUi*a letter and inlbrmnti(»n were sent
I to dbe oooncil, to see what they could
if than for a new accusation. When
ftw them, hefoameil and raipnl, but it
VMMIiiikii power to rAch Mr. Kirktoun at
fUi iHMf mj Mr. Kirktoun, as wc hare
brother, from his due ri^ht of succession, did,
amongst many otiicr traiterous acts, tending to
{>romote that* wicked design, endeavour to get
liinsclf elected one of the commissioners lor
negotiating the settlement of a colony of this
nation in Carolina, in one or other of the days
heard, is put in the front of the letters of Inter-
eoumnming in August this year.
'* This spark raised a great flume, and was
followed wiih very couiiiderable consequences.
After tlie council 'had come to an issue, HaU
tuun dispatched an account of this affair to his
brother 'the duke of Laud^-rdale, and misre-
presented all who had spoken any way favour*
ably uf Jerviswood, as if they had agreed to
subvfM't lawfol authority, and were in a combi*
nation against the king, and for the phanatics.
Anew nomination of council came down from
I f*oui-t, as we have heard, and all who would
' not Iwiw to Haltuun and tlie primate were lefl
j out, such as duke Hamilton, who had spoken
. nmch and freely against the act of fining Jer-
t viswuod and the others, the lord Privy Seal,
i the earl of Kincardin formerly Lauderdale's
' great friend, the earl of Dundonald, and some
others."
It was the second imprisonment of Baillie, of
Jer\iswood, which induced sir Patrick Hume
I (created earl of Marchmont by king William)
I Iirst t4) conceal himself at Polwarth, and aftor-
• wards to escape to the Continent. Mr. Koae,
in the Appendix to his '^ Observations on Mr.
Fox's Historical Work," has published a most
interesting narrative (composed by lady Miir-
ray, who was grand -daucrhter of sir Patrick
and of his friend Baillie), in which are related
many particulars of her grandfather^s conceal*
ment and escape, and of the privations whicli
he and his family underwent diving their ab-
sence from their countrv. Lady Murray re-
present<, that from London he went to France,
and travelled from Bourdeaux to Holland on
foot. Sir Patrick, in his own Narrative (pub>
lishe<l in the same volume) says, that so soou
as he got u{K>n the Continent he staid but
short in France, Fjient some weeks in Flanders
and Brabant, and so went on to Holland. Mr
Rose himself (Observations, iScc. p. 209) re-
lates, th:tt sir Patrick es<!aped to Ireland, from
whence he retired ili-st to (lencfa and then to
Holland. In rei)ortin^ the second escape ol
sir Patrick from Scotland (which took place
ailer the diseoniHture of the ex|Mnlilion cnni-
n)an(!e<l by Argyle) Mr. Rose says, that he
escapcjl to the coast of Frjmcc, and travelled
throie^h the whole of that Cfuuitry in the cha-
racter i»f a phyticjaii to liounitauN, ciiin|)elleil
by tli-v ifnp'.'rtuiHti'Sof the |ieo|.|e :in he passeil
to pr.'\;'ti>;e, from their confidence in the skill ot
a British physieiun, whieh he was obliged to
contiiiueto do at r.oui-<le:iu\ till he could get
a pas<;a^'e from tiK-nre to Holland a second
time. Lndy Muri.^y mentions his passing for
a sury;;eon (hiriii<^ the course of his first escape
lu fact, her Nan ative notiecs not th«^ axpedi-
655] STATE TRIALS, 36 Charles II. i684.-.7Wfl/o/Bfli/ftVo/,feTiwoorf, [63<i
«f the monetlis of January, Fetiniary, Marcb,
April, or May, one thousand six hundred, ^nd
eighty three years ; and tliat he lui^ht thereby
have the freer and better access to treat witii
the earls of Shaflcsbury and EKsex, the lord
Russeland others, whohad entered into a eon-
tion under Ar£>:yle or its consequenecs. It ap-
pears, that the incidents attending' the former
<if sir Patricks escapes, are occasionally con-
founded ««'itli iliUHe H'hicli attended the other.
See more roiicemiuff Baillie of Jerviswood
in 4 Laing's Hist, of Scotlaiul, 72, 133, 137,
«tseq.
The entries in Foimtainhall's Decisions con-
oeming this Case are as follows :
" July 26. et dieb. seq. 1684. Mr. William
Spence, late servant to tlie earl of Argyle, by-
order of the Privy Council, is tortured and put
in the boots, to force him to reveal what he
knows of the earl's, and other persons, acces-
sioQ to the late English fanatic plot, and the
association and design of rising ; and in i-egard
lie refused to depone upon oath, if he hao the
key whereby he could read some letters of the
eari*H, produced by major Holmes, written in
cyphers ; and seemg he would not say upon
oatn that be oQnld not read them, and that they
, offered to secure him by a [Mrdon for his life, it
rendeced him very obnoxious and suspect of
prevarication ; so Uiat after the torture, he was
put in general DalzielFs hands ; and it was re-
l^orted that by a hair-shirt and pricking, (as
the witches arq used,) he was five nights kept
tirom sleep, tilt he was turned half distractt'd.
He eated very little, of purpose, that he mi<;lit
require the less sleep ; yet all this while he dis-
<:overed nothing, and though he had dono it,
jet little credit was to be given to what he
should say at siidi a time.
" August ?. At I*rivy Council, Spence is
«jgain tortured, and his thumbs crushed with
Cnumhikins : It is a new invention used among
the colliera when transgressors ; and disco-
vered by general Dalziell and Druminond,
they huving seen them used in 3fu5Covy.
Alter this, when they were about to put llini
again in the boots, he being frighted, desired
time, and he would declare what he knew ;
whereon they gave him some time, and se-
4}uestratcd him in the castle of Edinburgh, as a
place where he would be free from any bad ad-
vice or impression, to bo obstinate in not re-
vealing.
«« August 122, Mr. William Spence, men-
tioned 7tb current, tu avoid any fartlier tor-
ture, reads these hieroglyphic letters ; and
agrees with Mr. HolmesN declaration, that '
Argyle. Loudon Campbell, the late preNident {
8tair, sir John Cochran and others, had form- I
ed a design to raise an army in Hcotlaiid, and |
to land at such convenient places as they I
hoped the people would join with them, ami '
hoped, if they once gave the king's forces a |
f<ui, they would get many to flock into thein ;
and bad advanced money to this purpose ; and .
1
sjnracy in England against 'his majesty's per*
son and government, aridnvith colonel Uumscy,
Walcot, West, and Ferguson,
and others, who had likewise conspired the
murder of his majesty's sacred person, and of
tlie person of his royal higtmess ; and findini;
that there were tlirce keys, whereof he hid
one, and Mr. Carstairs another (which caused
him to be tortured,) and Holmes a third ; and
they expected help fnnn Kns^land ; and also be
anproveil of Gray of Cripe's n'^ading' them.
On this, Cni.-ijdiell of Anlkinlas was appre-
hended, by John M*Naiightun in Invemy;
and Spence got the liberty of the caatle, and
his remission was recommended to be past by
the king ; and Gordon of Earlston was sent
for from tlie Bass, not to be execute, (ax some
said.) but to be tortured and confronted with
Spence. — ^They resolved not to admit ef his
madness for an excuse, which they eitceiiied
simulate ; as the late chancellor had done.
'* 8ci)tomb( r %. Mr. Robert Baillie of Jer-
viswooj, having got his citation before the
Privy Council, on a libel for resetting rebek,
6cc. tie gave in a bill craving a delay, in respect
of his utter inability to come abroad throiieli
sickness and indisposition ; they appointed tne
clerk -register, &cc. to go to the prison, and to
examine him upon oath, on the articles of Ikt
libd which they had now raised, fearing h(
might escape, and prevent fining, or any
punishment, if he should ouietiy die : And br
declininnf and shifting to depone, and it bein^
re]H)rteirto the Privy Council, they lived him
6,000/. sterling, which differs little from a fbr-
feiturc.
" Scjitembcr 5 and 6. Mr. William Car-
stairs, sun to Mr. John Cai*stairs, once minis-
ter of (ilnsgow. is brought before the Secret
Committee of Council, aiid is tortured widi Ae
thumbikios. He confessed there had been t
current plot in Scotland these ten yean past:
Some were for raising forces ; others were edy
for assiK'iating with tlie English, for boldiig
out the duke of York from succeeding^, and to
preser^'c the ref'iniicil religion. He nanud
many that werr; upon the knowledge of it : n
the (nirl of TaiTa^, ( .'csnooks elder and younger,
with ttio other pris-^ners, Murray of Phuip-
liaiigli, I'nngle of Torwoodlee, llome of PJ*
wurt, Home of Ijaffemli^an, Mr. Gilbert Elliot
Scot of (;allo\vshieIs, llav of Park, sir Jaaei
Dairy m pie, Mr. KoUMt Martine, Hamilton el
AJkeiiliead, (Sec. aiu! some gave out the duehett
of Lauderdale as a resetter of Argyle since bis
forfeiture, and a furnisher of him with money;
and who offered, in 1^)77, to procure the fani-
tics an indulgence from the king tor a snm ^
money. Fame uroiitroiisly also named Kerof
Cherrietrees, Campbitl of'Caddel, Cammedf
Balnaiuuon, the liiiirds dflSrodie and CTrant,
t.-rawfurd of Ardiiiillaii, Elliot of {Stobe, Mar-
ray of Spot, &e. Sncli of them as could be gfl
are presenliy aiiprehendcd, imd |mt m diie
firison ; and thou m^jor Monro and PhiK^
laugh are first examined ; and standing en
sSCbaeles IK lSsl,-/<7r High Drtason.
iifMi Itis mm
nil (ivluim lie in (o
they are ^i - -i>^. * -- -Ti -hr
(; whriciiiiiiikesdKi:
man tp nm him
bnt lie li^M»f 4»4l !• ^'
fmd ii Wore tV
i»l dmiild liHv
Wf m nmn\ h
lail lie bc4ujTtrii I"
•piMiilieiti Plirl
TWatCimptK! ^ ajtd
W faiiy cwi? _ siuce
III ««c«fi« JiK>^. rerlmij; but, iitMlmsr tins
rtotnaiBoii^hi* Jesircs to contct hU «k-
l iver^ It WOK only iri^'t" 'iV lam to
IjrgyW** HnMrt ri, am! nnt to turnHeit Duke
tortiuing- intich; and
i r , iUvy rnig:bt, without
) «rr i*iiin^'r^r!>., iikko any portioii ofF the
i torture bim ; *■ el uemo in alioruni
t torquetidii* ;* m>d he retired, and
I lo bt' jiriiM^nl, iin (hid ground, that if
i fWtv skoqUl di^ in the tuitiire, the judg'^
siabe fer murder, At Jeaitt were severely
•♦ It itm* douhti^d, how far thir teslimoaies
I p€t forth 'am cao he probative aj^inst
I p«ri vvitntfAses sbouW tie mj far
lUUieoiM lis to be uuiler no
nok^ en ti rropf iff f«itr of life or limb ;
flfali iu4^* clieto h<^t m lie eredil^d thim.
tliMiKlil Oiir
Wb at mmim Im^
1« Cbk cnicd l4irtan% ti:>
fti^ did ll«« twotv, (whi^
^HT IcfnilBUi^iunall,) wii
liili canfilHriicy ;
lo }min^ the privy couucil'ii pro-
*" Orcmilwr 9d uid 24. The trial, con-
l^giMiafiit Mid cxi^iition of llobert Biullit? of
Jvtiivood w^s upon thir diiyit. On the TMi,
I W wm lirvugitt to tbe criminal inurt, and
Mdtml M art %nd part of the trcn>oh?d>fp
Mpfey tif iintiing with the ti: 1
SnolrT-partT m l'>iiut;tiiJ, mz, ^
U^of York, f4>r^
r«aii«c<?ctiioii ibcreio^ wkicbli^ had tlun^
f onp of thr but tnlk* thnt they nii^ht go on e6>ctUfiHy ; sad
alter I It* bad (cettleit a correspondency here, he
did gpo up to lyiiidou iu one tir trtber of the said
triotieths, n iih iiir John Cockran and eummiiiiiar
Wottro, and did then, and t!»cre, transact with
the iNiift coiispintors^ or one or otiier of thenfp
pre^fiumed to omceal, and did not reveal the
Mttme : us ulb*o, he was an agent for geliing-
i;^. nt fN.o/ sierHn^, fifom the English to my
tn floUand to bny arms bnd to
^ ns and horses to laud in the we^t>
highlands, where nther« were to join uith bim,
♦» Tlie lviiirr*s advocate tirsl produced the
privy cr arrant to pursue bim ; ivhich
nlso cuj^ >if Ueorq^e Lockhart and me^
ti]ion oui kilit^uinucs to be assistant to him in
I hut process. Then ilie warrant waa produced
for Sir Palnik Hutne, Mr. Walter Pring-le,
and Mr. William RIetcher to appear for tlte
' -* '" ' the aoth act of pari. IfiSf
lij they always oontruuiiiff
' ■ J- . .-. sti the i-.*.»-(^^ of law anl
loyalty : at wbi<^h clan uplcd ai wn-
utnal ; though they dc:-,.: i.^y wouhl cjl-
cced nciUier,
'"^ The 1st Tdcfence was on the shortne«a of
the citation, that it was tlpon little more than
31 hours, atid that the leg^al induats waa IS
days; ait after debate was found in \6JS, by
the justicea, in the ca^ of one Robertaoo,
though he was in prison, remarked by Hit
Geor^^ M'Kenzic himself, in b'ls criminal*,
tit. of libels; at least, such a competent time
ouj^ht to be alloHcd, in which the nannel may
raise a precept of eicculpation, coaronu to the
regfulalions m 1672, to profe lys detifnc<?5 of
a/ibi^ or tbe like, and to cite witnessess ; which
^^asimiiossible in this case; and if they may
be cited on a day, why not on an notir ?
Answeredf There was no law obliging^ to gifB
paonels in prison any definite tiiiie, especially
where it was not on a summons of treaaon^
but only on an indictment; and that our
Castom and practices had allowed citations on
^4 hours ; and Itathillet and others had
been so cited, (only it was not ot>jr"'" * " - 'nit
in tliese cases,) and here the ;id
not a|iphed for an excohiatioo. - .,^ ^*,iju-
nal lortls repelled tbe defence, and stuctaineA
the cifation.
»* 2do, Alled^^ed, As to that article of har-
bouring and reset of Mr. Wm. Veitclu orwlio^
fugilites, and the corresponding vi ith Argf)de,
it uaa; '^ res liaetenus judicata,* in so far as he
bavin|r lieen conveeiied b«dbre the privy coun-
cil, in Hcptember last, for these crimes, and th^
Rftuie Wing referred to his oath, and be refus-
ing to depone, be was tiued in 6,0()0l. fterling'.
■ V '"" * * Tr> the crimes not
of cuuncih Be-
. , Mkv clerk of i^ecfft
md, he Was alsii thofi
I. 's tity.ui-, find cravei
II. Dnplieifp
lined no such
; aud it beii^ a 9oru^igii (wtut, il shouli
i have
tash
it as
i not,
uijj or
but their conless-
659] STATE TRIALS, 36 Charles II. 1 684.—Tra/ of BaUlu t^ Jtrmwcod^ [6G0
for not send! Dgr the same Umeoualf, and lar
to jret a snm of monry to the late earl of Ar-
gy\e, a docluriMl traitor, for brinKin^ home of
lucii ind anus, for raising a rebellion a^iost
liis I! ajesty, and invadinjif this, his native coun-
trey : and m> earnest was he, in the said design,
that lij did chide tliosc English conspirators,
make more faitli than any double; and the
advocate could not depone m prejudice of his
majesty's interest. Tlie lords allowed the king's
Advocate to insist against the pannel for all
crimes not jutiged by the said decreet, and re*
fused to conveU it by his oath. Then, having
no more to say against the relerancy of tlie
dittay, the justices found it relevant to mfer the
J lain of treason. Yet there were two other dc-
ences privately suggested. Imo, That the
king's warrant sending him down froni Lon-
don, bore only to try him for crimes done in
Scotland; ergo, what he plotted in England
■honld not he charged on him here. 2do, That
in England, the senduig mone^' to Argyle was
not treason ; trgo, the conccahng it by a Scots-
man could not be treason, seeing * accesspriiim
* sequitur suuni principale, et nou entis' nulla
* sunt accidentia.' (But tho}' were not clear
to meddle with thir two.) And there is a strict
act of parliament in England, since hiii ma-
jesty's licstoration, tliat no man who has com-
mitted a crime in England shall lie sent pri-
soner for it to another kingdom, (but I think
this .act means native or naturalized English,
now the 3cots Postnati are such ;) for in ano-
ther country, they cannot plead tlic bcnofit of
the Habeas Corpus; and for this renson it
seems thcv could not prevail with Shepherd
and tlie other English witnesses, to comr to
Scotbnd and depone against Jer^iswood, what
the^r knew of his accession.
" Then the witnesses were called, and Wal-
ter Soot earl of Tanas, the pannel's ne])hew by
his lady, was first bnuight in ; against whom
it was ohjc'cted, that he was not a habile wit-
ness in law, being not only *• consciiis et socius
' criminis,' hut also undor process of tn*ason, and
also under the fear and apprehension of his life,
and BO < sub potcstatc acousatoriK ;* and. which
was more, he was ' con\ ictus,' in so far as he
had coulessul his gui!t, and tlu'owu himself on
tlie king's lucrcy, ^ et coiifttous hnhctur pio
* ciiuvictii ;' and such ivIlni'.NS' m a** i ejected by
all laws, evia in treason, as Antmi. .Muiba-us
asserts ; Tit. de hirsa Mujeslate, va^i. 4. And
Farinaciiis dc Tc-.>-tib:is, (jiiust. 6J, declarer
* tcstcm uccusatiiin et im^rccratum* to be in-
capable ; and the :; l. ti-ap. stalul. '2. Kobert. 1,
* die bis qui rcpelli:ntiir a tcstimonio,' oxprrssly
im»pacJtates M inculatiini infamenk et tarce*^-
* ratum,' and whnsv* uocusation is yrl dcpciid-
ing. , Answered, Though tliu brcMrani * regu-
' lafitcr' holds true, that ' sorii cousciiiiuc
< criminis non sunt admittenili in testes quia in-
* habile^,' yet < exceptionem ct deliquium pa-
* titur in crimiuibus privile^^iatis ct exceptis,'
as is treason, and conspiracies for subverting
tlie government, which cannot otherwise lie
frofw but by accomplices ; and to plead tbit
mented tlie delay es used in it ; ana Dersumded
the bUe earl of Argyle, and others in nia nam,
to accept of any sum, rather than not to en-
eage; and amongst the many meetinga that ht
nad at London, for carrying on the nid tcait^
they are not receivable ivitnesscs, ia all one as to
plead, that such plots sliall not be di^cormd at
all ; and if * particeps criminis' be not aUoired,
they cannot show a way how tp reach aiich bon-
jurators ; and publick utitity has introduced this
relaxation, both for the atrocity, frequency and
latency of the crime ; and all lawyers are cleai^
that it may be proven * per socios.' 9do, ' Goi^
* fessus habetur pro convido' only 5 fictiqne
'jiuris;' i^nd PafKm, in his Arrests, lib. 514,
tit. 8, shews sundry cases wherein complioea
make a fhll probation, viz. in Iseao m^pcrty,
and coHsphaeies; and Anton. Faher. in c«L
lib. 9, tit. 6, sa^'s, it is ' privilegium criminis
* Icesae majestatis ut facilius protetur,* and that
for obviating and discoverii^^ it, * ctiam socu
* criminis sunt testes habiles,' which thougli
he confesses to be hard, yet it is neoesmy:
and it uuports not in law whether he be lioucr
process or not, for it stiU amounts to no mors
but his being a < socius;' and his fear of death
is much the same before bis indictment is
after. The criminal lords repelled the oljeo-
tion, and admitted Tarras.
** Then Commissar I^Ionro being adduced, it
was alleilged against him, thathe had betrayed
his testimony already, by discovering what)it
could say against tliV pannH. 2do, Whaihe
rmitted thnt declaration, he w as either thjealicB-
<kI w itii toitm-e, or in the very prospect anil
view (>f it ; and Danihnudcrius and other cri«
uiinnlistH reprobate that icstimonj. 3tio, lltal
he hud got promise of the greatest good deed,
viz his lir«'. Answered, any declaration bs
has rmitted, is not priKlition ; l>eing to a jadge
and it was not on a precognition, nor in rda*
tion to this pannel ; and so needs neither bp
givf n back nor canrfjlliHl. 2do, It is denied,
lie was Ihrt'atencd with thetortorc ; but, though
he likd, he is ih> far fr^m being rcndurod then>
by inhahile, that on the contrary he is a more
pregnant and convincing witness, not being vo-
luntary. ;itio. Promise of a remission tton reU-
Tittj unless it i« as burdened witli, and oommon-
cdon,that heshould for that cause depone again^
the ]»annel. The lords also received hiin.
*^ Then James Murray of Philiphaugh, and
Huf;h Scot of Gallowshiels, wire examined;
who said liitte to the panneJ*s case in particulsr,
but cicared the tract aiMl threed of the consui-
racv, anil the meelingswith Polwart and Mr.
Kolieit Martine, at I'ringle of Torwoodlee^
house, and the chain by which it xras liukud
with the English plotters and Scotsmen at Lon-
don, viz. the lord Melvil, sir John Cochrane,
the two Cesniicks, comiiiissar Monro, Jervit-
wood, i&c. Their design seems to hare beoi,
to join with the Englisli when they were ripa
to draw to a body, and ^ith arms in the ooa
baud, and a petition in the other, lo oompd
Mi J STATE TRIALS, 56 C«1R t
t dcfiifn. itiiTr v^K% onr nt Til's rmn diani'
h*, wlicT Nil, isrr
Mb Tn • r-r afifl
te . , and thf re he did
fecil a( itit: cair^ ii^ on uf tlic sssid rebeUjoti, jtud
V'. : :',! !- ■ .» I* . r,. -.'V of a
to be
>u IjMniTett
9ucce«s to
'•^rices of*
rtaiooef ii ' Ber-
tkir. »nti HtiH ;, ' ■ ; ..-oi^tlie
or, trcusurcr, nnd th*i draLfoons Korst^s
lhf*y wrrv grfl.^ing'; atut i"«> try where
^'0 g-tH ; auil to let the pnyect
r fiH*-9t friofuJf^ to try thdr mcli-
ni» .1 ' ' their cP5»s tor a time,
» kii of XtiviT |Mirty bv a
r^, ' iiriininnv, ntiil ft st^'iit viz. the
ft UuttoM i»f their brea^its, arnj then
■air il stfmn,
' tl« kiag*^ ftitrocDtc furtlicr adduced to
»,M/f./i t^r.yL,ff,ffiis^ fi primed
Amble rJ' Loir's depui^itton,
f«1ial:ini I il on the 22d of
Dc^^cmber la^tf in jirt^Hfiice ot the whole jirivy
Gftiiaril; nhrrci^n the rwo derks of couiicji
I'tddooeij - i*^ to supply hUab-
r I f«r hr 1 iipwar as a witnes**
lilt IVkMJtU, Hliom he bad ensnarnl
im^fh%^ JUid he had capitulaled nith the
ifcnc CdfDnitttr ' ' lie would t^vif«| any
dbieiiff; Imo, t^ life, 2ilo, That he
rill Utirfic!^
irt^aUiii*; for
II WAS to Ijave
of Arg"yle» with
I wt:retar3% hi» 8uh*
I) thereat; aiid for
f the subjjcriptmn!r» there
I* r of' sir Anctrew Forrt?M-
ivaut) which he sent
tTi8« and suudry other
I IP, r%irr«iary Jtr'tikin^ tor
ntfg t)ic hand wiit.
I, It b deal
•^ ^'-'! /. 4, 1>. de
VtH Med tes-
Novd. 90.
caaes^ tlie emperor allows the
r absent wttiieisMes upon oom<
aiMifti hiji 'in crimionUbuR/ because of
r Efrcut icnpctrt, • omntuo priescniari del>ent
<i ' M rv^i ;' andour law 18 &8
li aet, pari. 1556, that all
aiir-n ' I , ire of ttte assize
isirm may ha^e
fvrtt pv«*i: « »!>es from per-
jwfy; wbewc* ual instance, on
ili<S4fli Mtyd^i* ^ >T> Cesnock'f
Irvl; lir lli^utfU € i^am, the
l»«i itWiirfi,Tiftrt rs< ^ I -^^ainst hitn
HMfinl iImms ber<pn; the tml, y^ wheo they
of th« niooe}^ to he furnished by the English
for Ar^yle, for buyingf of arms; and (hat if the
Scots would attempt any thing for their own
relief, they would |jet assistance of horse from
Kagland ; and tVoui that meeting', he or aue or
other of them did ^ud down Mr, Robert Martin
came into his pi-^ence, they resiled. An-
swered, ii was notourly known tint Carslttira
and the other two absent English v : ^ti4
depttned these thitigi, and did ad m,
and had uo ioterent to lie or wmni; . ,,_ j .,..t>ul;
and so It imported not whctl^er they >» ere pre-
sent or absent ; hut they used them only lointorm
the mind^ and coriscieiiccN of ihe a-sst/.en?, and
letl it CO iheni to consider how t<!ir thoy shonid
import. 2do. llie 90lh act of parliamtnt cited
madeag^ainsc them; forit only disdiftr^;i?d th«
shuffliog' in of papers to the assizens atlcr their
inclosiire, which the nanncl had not seen, ami
therftre ordained all the pi ' i • he led
in presence of the patmel and i ; which
they now did, by adducini; fJir^e ir^Umouies
before the pannci and as^iize, and a double of
w hich papers were given him, with hb in-
dictuKnt. The criminal lords refuse*! to
sustain them as a full probation /jn-^f, (for that
were a \ cry danjyerous prcparaiire) but referred
them to tlie a^izc, to be considered by them,
in mudum udm ink u h^
Then sir I*atrick Hume» one of the pnnners
advocates, spoke to the assize^ and allrdgcd
tiiere wa;* not two witnesses a^recvuEf in one
fact. The advocate contendetl, that il needed
not in Ci*eason ; nnd he ifummed up the proba-
tion, (il being hi^previlcg^e to be the lust ^|>eaker
in this crime of treason,) and aggja^ated it in
all its circum^taiicet. The' uisize enclosed
about 12 u'cltiok at ni^yht, and «at till three in
the nvoruing', the eari of Sirathmore hein^
chancellor ; and thi'y found \m bein^ art and
part of ilie couspiracy and design to riik? h\
arms* and bis conceahng the same, proven by
tile wrilK and adtuiiiides produced.
" The verdict was reau the next moruinj,
the 24tli of December, and ncntence pro-
noimccd ag'nin^t himi viz. that he should
be t.ikf*n that at^emoon to tlie market- crosi
of Cdiuhur^hi and there handed oti a f^fihbet
till he be dead ; hiii head V> be atfixed on
the Net her- bow -port of Edinburgh, and his
lM>dy to be cut iu four quarters, to be aet on
the Tol booths of Jedbtiryfh, Laucrk, Air, and
Obui^ow; hii landi; and moveahlcH dedaftd
fotfeiled to ih« king-, his blood tainteit, his pos-
terity declared ignoble, and incapable ol all
offices; bis arms retemed, and so afii^ied on
the cross, and also to l>e delete and raae<i out <if
all the books of betaldry. His fiaher was a
son of the laird of Ht. John's Kirk, wtio \^ a
cadet of Lamin^ton, who say they are the old
Balliols. He earned all this with inuvh calm-
ness and composure of mind ; only he com-
plained the lime they had given him to prcfrfirts
liimKclf for death was too short, and hulTcd a
little that he should be esteemed fj^uilty of any
desLgn against tba life of the king, ur his bro*
663J STAT£TRIAI^,36ChablksII. i6S4.^Trialo/\BmUu9/Jernm00d, [864
to npevent any lisiiig, till it vhonid be seafton-
■bie for curr3''in^ on of their designs : wliicli
Mr. lUibert, alter lie came to Scotland, ditL
treat with Polwait, and othere^for carry in<f on
•I' the said rebellion, by Noeuring his majesty's
officers of slate, his castles and forces, and by
ther, of which he purg^etl himself, as he hoped
to ftiid mercy ; as also he denied any purp<ise
of sobveiting the monarchical government, onlv
lie bad wished that some grievances iu the tui-
ninistration of our atfaira mis^ht be. rectified
and reformed : But sct;in^ he purged not him-
self of the rest of his libel, nis silence as to
these lookeil like a tacit confession and acknow
ledgment thereof. All soeuied conviuced that
he had tampered in dangerous proiiosals, anent
getting what was amiss redressed, by pntting
pie king under force to yield to their demands,
if they could not obtain it with fairness ; and
Tarras declare<l, the pannel regretted that the
iLnglisli only talked, but he would study tio
pusii them forward to take brisker autl sharper
ineasures, and to act something, ^though Jer-
viswood complained much, that Tarras to. save
hiniseir, sacrilicefl him, and that he never had
usctl these (•xpression8,)and that in May 1(533,
he went to London on that en-anc\ ; though
Jen-is wooti himself, ami the other Scots gen-
tlemen who then went up, gave this reawn,
that they were terrified with the iuterlucutor
against Black wfNKl, finding him guilty of trea-
son for reset and harliuuring, tliey knowing
themselves not fre<? ; as who in the west were r
Tarras, Fhiiipluiu^li, \c. minced and cxtenu-
at«.>d their dosi;;n by several rolnuis and pallia-
tions ; as lino, That ihty flrlosled the repub-
lican parly in liliijLrbnd, who were for tolally
dianging'thr nionarcby : But lliey were con-
tent to have had him liiiiiled to have fullowul
their counsels. 2d'>, That .^Ir. Ui»bert Mar-
tine was only sent down to slop a rising in
Hcotland. But it apjH'urs the reason was, they
had not yet fully coniX'rtcd wilh Kn;;land, and
they feareil to 'man- the desijjn by too iiuich
iii-ei*)pitation aiid haste;— and yet,* when Mr. ]
iobcTt returned, lit- reportotl that he found the
conntry in such a temper, that very little would
kintlle the tire, iiliu. That all ihi'y sjMdce was
on rtMuote su|ipositions r\nd cautions, and was ]
iniiiictiiaiely rejeeted as unfit, and more con- !
sonant to pfn-isli jrsnitical principles than to the I
casuiMs anil diune<! of the reiiiriiird relip.io;i ; ]
^ir.t uivli T sucli a ilangrioiis pretended co-
vert as :his,all t!i<> treason of the world may be
hatched and «>ari'ie<l on.
** Thesrnitnri: was acTordingly cx*»ented in
llie aiiimoou ; sj lliat thrre was not above live I
hours Ik'Iu cm hi:< senteneraiid his death, whieli
vtus iiineh eonipluuu'd of; nut titu holy ilays
of /uile approaching, they would not* de!av
liim till they were ended ; and their reputation
iu diseovering this Nrols pU»t was miieh eon-
<vnit'd iu tiu.lin:; him guilty of it ; for if that
liatl iniscarrieil, it would have maile the people
believe it was but a sham foi-ged plot. His
iMttfryiDg Johnstou of Warrisum's daughter
putting his correspondents here, and tbeir a«M»«
ciates, in readincM to assist the late eaii of Ar«
gy]e ; and after the said Mr. Baillic bad eii«.
gaged many of his countrymen in Englaiul, snd
had assureti his correspondents here, that the
English were resolved to seclude bis royal
first alienated his mind from the government ^
then he having rescued his brother-in-law Mr.
James Kirkton,.an outed minister, from caotaiB
Carstairs, by drawing his sword, he was filled
in 1000/. sterling, and imprisoueil for it ; hot
ke got his fine reiuitted. The banning of
discontents, though small, vet if cherished, will
transcend ail bounds, and keep no messure.^^
Re died regretted by many, and with much le-
soiution.
<' What Carstairs and the rest bsTe said, is
but an imperfect narrative ef this plot ; for tbcj
have concealed many circumstances of it, sod
told no more than what was squeezed out dT
them by sneeial interrogators, torture, and fear
of more; but sober persons do not doubt tha^
these foolish rash thoughts of winding^ thcn-
Kelves into the government were in their headi^
though a thing very impracticahle.-^— Them
were sf}me doubles of a speech he had wnttsn^
spread ai\er his death, with the matter whereof
our statesmen were very dispieased, and were
willinijf to give his lady his four quarteis to
bury, if she could sup^tress and bring bi sU the
copies of it, that it might not fly woed;yct
others tliought this was the high way to asl
curiosity on ed[^, to search for and propale ic
But the reputation of our governors lay deeply
at the stake, in convincing the norm of ihs.
tnuh and reality of this plot discovered by
them ; so they were hugely concerned to oC>
viate any thin}; that seemed in the least to in*
fringe, invalidate, or take off the credibiUty of
that plot iu the minds of the people.
'^ This is now the less necessary, seeing bis
trial i.^ &inee printed by order, with the key of
tlie plot, and an account of the late discoveries
and deciphering of the cousiiiracy against ths
king, compiled by Tarbct Clerk- register: but
this abbreviate of his trial was wntlen by mc
Ijcfore the trial was given in to the press.
'* Eodtm die. After Jervisw ood*s execulioHi.
the pri%y council met, and conveened belbrs
tlictu eleven of the Cli'iesdale gcntlennen, moa-
tioned 4th Decemlter current, vi^. Bannsn-
tyn(; of Cnrehouse, Stewart of Allantmi, 8lewait
of \\ at wood his brother, Kennedy of Cloibunii
Hamilton of llalcraig. ilaiuilton fok' Overton,
Jauu>s Vonng of Linbank, Chamberlain of
Kvandale, S:c. The libel was for their acOM-.
sion to I'entland-hill, or Bothwel-bridge rebel-
lions, or their resetting such as were there, or
contributing money for reliels, or harbouring.
non-con(briuist mmisters, who preached or
pra} cd in their houses ; or sending money t
Ai^r^te, or refusing to take the oalhs of alh
giuiiee and supremacy, ^c The king's atfm* *
cale having declared, that he restricted the lihol
to an nrbitrarv punishment, he referred it i^
their oatlis; wheregn they having di^fwnid, «p4
Itl& IT. lfiS4.-*:/i>r Bigk Tru^n. [t
frtm hi* d4*« rigHl of stiecessin,
eOfirt^ tb«iii to or>f\ntr in tbc
a«ld t3idii4H<»n. tif^ flc^rtotbat
be ^tl {lartkularly natl riocsly
mih Mr. Hotiert Fergriaoo, ur
"^ ~ ' It dolooci Hutnsej, and
wore t^ctfmory to thut
' tile canmpirjiovT wliirli was de-
Ltlie MMrreO lUe *>t bis mujexty,
?«ir vii^ --* ' ^-^^ ' '.:^ ^it
nights liftt
w
VTitWQ«i| wfti, anfl
E
wionieRrr' Uklli thr 1
^, -
M
.)r>;,
»»*t
, fur
wlio were to nw iti urn) a
I ai«|€«ty, tnil tor exclasion of
1 Ilf94k«rt 151] uf yoaccalio^ anU jiol
^ the acnodiftfi stnd prujiOjcoU of others
^row be has com*
*^ erymes o4' high-
11 y courittU, tor )«ii
t till- " ^
•y*f AtJv uAit and
I Ul« lont \ 's most
■1 fn-
PTdiH "VTr HoIf* 1 ,.' fif
uorfiiUowfl. Kiliii-
'»f D«?c<?m1jcrj one
> V four y(*Htn:
> V council do
': ' . ' -ty»s
Hla do hcrt'bv
. TA»<LkIi;irt of
inU Mr J , to
Ittttmst ia I. hifl
uiiiil the
iolt; upou
uzw €»rito«h-
.it.
I^v LfifDitmrt J fir) %iT John LijLuder,
Mr,
3L. l^: .^„i L,...-, aa^
ity\ urif V
their fa*
lilt lDQ|C*»49C^^«m»Hc •nffMPpmacy, they
«l|ll,6Uiii>Lri »i»»
M of ibciti in iA^f^jM ritriii% iiqci oiiur^ in
■pImi i«4 two irf' thrai i«^t tn the pluo-
IfliifeB amir fiao ; liwi ill «f tb«Bl «i» iitf
hiir^lK lh« ti»eiitjMhird of Deeerober, ,
thouKAtid sbt hunclred and vig-hly-fiiiir y«Ami
the lords of hb majesty *s jinvy council tiafii _
considered ane address made to thi'tTii by M^i
Robert Bailiie of Jtrviiitttjod, now mtiited at]
the ini?tance of his majesty's advocat, befonfl
thf lord^ commissioners oi justiciajyi oftrea^f
.soii^ do hereby require and command sir Pa
trick Hume, Mr. Walter Pnngle, ^h J nine
Oiabum, iMr, William Fletcher, Mr* Jame
Falconer, Mr, William Bailiie, advocats*
^■'^"'^uk, compear, and debate for the )*etjtioner|n
f process of treason, mentioned in bia ad«
s, without any hazard, as they will l*e an*!
Kivcrable at their peril. Exiraet by me,
6'*c tubicnbitur^ William Paterson, C. S, {
AiWr reading of the Inditement, the lord j«
tice general required the paiinal to mak? aoiwe
thereto.
The »aid Mr. Robert Bailiie, pumal, pie
Not Guilty.
Mr. Walter Pringk, advocat, as procnrmti
for the said Mr, Rd>ert Bailiie of J<n-visvrood
Pannal^ alleadg-ei» that be ought not to paia I
the knowledge of an assize 4 because he
not gfot a citation upon fy4'ke«n days, or at le
on a competent time, which b usual, and
solutely nec*e8»ary in all af^ons, and muc
rnore m crimioal pursuits, especially, seeing
if a competent time be not allowed to the pBB^
nal« he is precludit of the benefit of an excul
pation, without which he cannot prove his ob
jectious agaiust witnesses, or assy^ers, or lAj
otjier Ic^al or com{>etent defences ; and by 1^
late act of parliament ooiioemionf the juslkoi'"
courts all panuals are allowed to raise firecepta
of exculpation, and tbereupoo tocite witnea^t
for proving the objections araiEiit witoesMS,
and as«y£ers, wbicli oecessaruy precappoietl^.
tliu.t a competent time mtist ws allowea to ib||
piinnal to execiit his diligence, or othanrii
Low IB it possible l»e c40 prove a defence oC
aUbiy or any other just defence ? And a,'^ this it
most consonant to that clear act of pariiaroeut,
and to material justice, and lu the rules of bu*
MiHoity ; 60 this point has brcft already fuU|
and ouim decided, and lately in the case of on
Robcrt^n* in July 1673, iuv tnslftDOe 1
is given by his maWs^ty's advocat in his book
ut crtiHinals, nml title oi libelsi, where the tordf
found, that albeit Robertson got his indiicmetil
in prison, yet he behoved to get it upon fyf*
teen days.
His MujetifM Advotai oppoos this eoMtaat
tract of deoisiona, whereby it is fbund, that t
penmi tucareer&ted may be tried u]ion tw ««lv
four hours ; and ibe late act nf parliamejnt m
otdy in the caite where ^ summons or hbel ts 10
be raised ; but here there is no Lbel or sum-
mons, but only an loditttment ; nor was ani
e>tculpation sought io this case, bi-fort lliclria
%^ hich IS the case provided fbr by act of |iarij
mcnt,
Thft 1orda»Jtislic0 GcacralylitftictC&irkvi
I
I
I
I
I
L
867] STATE TRIALS^ 9^6ChARtKs TL \€%%^Triai of Baim €f Jmiwmood, [fi
HI n&pect the pannal ia a prisoner, and that it
bu been the constant custom of the courti, and
thit t^ie pniinal mude uo former applicmtion for
«a escuJpaiioiu
Sir Patrick Humt for the pfuinal allaadgpes
(always denying the liM, and whote members
«nd fjunJiticiilions thereof,) ibat m so far &a the
libel t& founded u(»oti haj'iKiuruig, maint&iningi
mud iuterooaiutunuiii vtith the [>ersons men^
tioned in the dittay, tlie juiunal ought to he
Assoyl/ied, because it is ret hacttnut judkata^
he h»ving been formerly nutsued before the
fords of his maie&ly*s pnvy coiiocil for tlie
nme crimes, and fined in a considcriib!e sum ;
mud therefore tliat crime cannot now 1>e made
use of as a ground of Ireasoa against the pan-
His M«^€$tf/*s Adtocai atiswen, that lie re-
stricts his hl>e} to the pannars entering in a
conspiracy for raining^ rebellion, and for pro-
curing^ money to he sent to the late eari ot Ar-
gyle, for carryiog on the said rebelhon ; and
tor concealing^ and not reveahng^ ; neither of
which Is referred to his oath ; and cooseauently
was not rci judicata^ there being nothmg re-
ferred to liis oath ; but his converse and cor*
responds nee with some ritioiiiters, nad others
witmn the kingdom, and his oun gardiner, and
his writing letters to my lord Argryle ; and op-
|»on« the decmet of couiicn itscif, and restricts
Ihe libel to all the crimes nut iii>>isted on in tlie
decreet.
Sir Fatrkk JIttmt replies, That ms tn tlie
corresponding with the kte f^rl of Argyle nt
any timr since his forlaulhire, wa« expre<«sly
|iix>pofied as an interro'^aivir to tiic pannaf inth^l
lyufsiiit, at his mnje^t> *s advocnt's inftiance
again M hini, before ttie K»rds of his majesty's
privy couneil, and that nut <mly hi<i own cor-
r0»nondeno^ by him?i«lf, but also by major
Holms, Mr. Carstares, llobcrt West, 'Thomas
Bhepherd) Richard Humbold,andci>lonel Rum*
aey» as the interrogator liears^ as appt ar^ hy a
double of the act of council written by the
cierk of councils 8cr?antj and is offered, to be
proven hy my lord mdvocat/s oath : and ua to
any correspondency with Mr. Veitch* it is not
relevant, sjncc He was not declari-d refeel.
Sir Jofm Jjaitder for bi« majesty's interest,
answers, tliat he oppons the decreet of priry'
council) where no such interrogator was put to
the pannal ; and the dti^eet must make more
iaitif than any pretended scroll, and cannot lie
taken mway bv b" — ty's advocates oath,
to bis majesty ^b and for Mr. WiU
limsn Veitch, he ..^., .., v ^^ressly forfenlt in
Inno 166r, and the doom of fortmoUure is
jmtilied in the parhameot 1669,
f^Pdtrick tiumt oppons the reply. That
ma to the corretpouding with Mr. Veitch, it
does not appear that he is the person men-
tioned in the act of parliament ; and albeit he
were, a^ he is not, behaving tlirreuHer come
borne to Scotland, all the pimi^hinent inflicted
upon him was baiiiibtoeDt, not to return under
the paio of death « which did tmfce^anj I
punishment ; and it wa<t tio crime in mti
son to interconmiune with luro,
another kingdom ; and by^ the Imte m
cilin Anno 16&3i even the coavenmf^l
tercommuning with declnred tmttors,
sliicted to an arbitrary punish rnetif.
His ^VajettyU Advocat options the __^__
doom of forfaulture against Vedtcht and
proclatuation^ or act otcoyocii itrndf*
The lords, justice gfneral, jintiee clerk, and
^mmissionem of jiitticiary, haviog cwui-
dered the hbel pursued by his majesty** sH*
rocat, agiatnst Mr. Robert Bmillie of 'jernt-
wood, with my lord Advocmt*s dF^Uratj^n,
whereby he restricts the siime to ib
not inststeil on in the decreet of en;
merly pronounced against the pamvui ; v.\zy
tind the same relevant a« it is restricted* to mfrr
ilie imtn of treason, and remits the 9am« to tW
knowledge of the assize, and repek the rcfii-
nant defences projioncd fur the i ;»nn:il in rr-
spect of the d<x'reet of council | i *iif*
ingnosuch thing as is aUedgeo , m^ in-
swem ituide by his tnaj€sty^» mdvocat tbomta.
Assisji.
The earl of Si rath more.
The earl of Belca.rras.
^ir George 8kecn, provoift of AberdecDr
Sir Jame« H< ming, Imle pttivoa of Ma-
hur*jh.
Sir John Ramsay, of Whitchill,
Adam ITopburn, of Humby.
Andrew Uruce, of KarlcshalL
John Stuart, tutor of Alpiu.
Al. V Miln,ofCarnn.
M I i es , of Steu h opmiloi.
Sit IT II1I.1UI Orummoiid, ot I]aItliomdcD«
Major Andrew White, lieutenant of Edia-
hnrgh Ca^le,
Mr. David GnUiam, ^herifTof Wigiomi.
Colin Mnckcnjtie, collector of llo&s.
David Btirnet, mcrehmnt.
The a^fti^e Uwftijly fwom, no ottjeetAoa of
the law in the contrary.
Uis Majcit^fi Advocat for pmbntioo ad-
duced the witnesses and writs aforcmcutiaued ;
and first,
Walter earlof Tarra*.
Sir Patrick Hutne tirocurator rjail,
objeusagtimsttheearlofTarrav < vcuiol
be a witness, because he fs *■ sOcii^^ et ^niaefii
' eriminis •/ and it is clear b^ tli« 5* dttp.
Stat. 2y Rob. 1| conoenung ihe^ ' ' a*
eluded from bc^ring^ of tcatimoi i
* et Participes ejusdem erimiriiRt vf i
* rati ct 1 iuculati/ cannot bear
also, the earl n( Tarras being
an indttementofhigh treamio, and MiUmt-
impressions of fear, and death, no
his circumstances can be adttslaila i
is not onJy dear from the fbrcaaid i
from the cotmnoD law*
#69] STATE TRIALS, 36 CHAtLw II. i6H,-/ur High TTwm.
His ]^Lu€$i^*s Advacut «nsw4^ni, TUak it is
ftQ exception froui that rule, bolb by ilie corii-
iDc»n ta^, atul oa^, drat in tbe crmie of lese
nii^it^ti'^ >M*1 especially tbai brancb thereof
[67i
tt a e^nspii-acy, ^ socjus cnniiniii
tniL^ ities.'s, aauivhicb isiiititMlueed very
teasaniiblv by Uivyers to »ecuTe the Cf>mmQu
interest t ol matikiud, wbich m the chief of all
interests ; and because con«piracics eaQuot be
4»t2ierways proved, and not to allow this tu»uuer
of probatijou, were to allow trcasoit, since no
inan can prove a plot, but be that is upoa it i
iwd how CAu ^ man object against biin as a
Hitncsfr, wboiD bim^idf trusted \iitli bis life,
bk f '♦"- ' and tbeir common plot? Nor is
^t (»f tbe libel aoy stronger qualili-
catj;,.,, ..i,^^ c^cry man ibat is * s<)cius crirni-
t tiis,* is under tiie saine impression, sad it
frould rather j>eeni the g^reater snd n^rer an*
pn ' J tiiAQ bos of demtb, he will be tlie
TDoi :\Qd faithful ; nor bajs the earl of
Tsrraji, nor did he ever teek any ML'Curity,- in
Cider to his depaninif. And this has been
oonstantly/and latliei coQform to the common
Uw, IS may be seen in the hundreds of cita-
tiooa set dofrn by Moseard, tie ProbiUiouibus,
tot. 4» concluf . 1318, Num. 21, and ihfc wm-
tnry^ citAlions pi-ove only, that regularly
*■ sovtus cri minis' cannot be a witness.
Sir Fatrkk Hume replies, That the statutes
of Robert the ikai is opponed^ and * non est
' dWogiiendutn, ubi lex oon ilistiujj^uit ;* sod
HOC only ^9» be ' socius criminus,* %vlnch is
idEaowkd^etl, but he is ' inrarceratus,* and
lyioff under an inditemcnt of high treason, and
ffWtlirowD himself on the king'^i mercy ; and
it is not proper be should be a Vitness, seeing
lie a in uie king's inercy, who may gi?« him
ilis life, or not ; and there was never a person
ill tkete circumstaiaccs that ever wus admitted
% witneas,
Hr, Walter Pringte adds, That the earl of
Tims is not only in thecase^f a person who
4i»ml« iudited for hig-h treaaou ; but must Im
looked upon as a pin-son condemned for the said
Ctinie, ieetngf be fully and amply coiifesl the
CfInK ; * H confess U!i habetur pro convicto,'
and nerer any lawyer as<«erted, That * dam-
* aftMs criroiuis licsfE Majeitatis' could be ad-
miCl^d as a witness ; and there is nofhini^' miire
cleir, ih&Ji tlu^t by the common law, artd the
kw of all nations,' ihin objection ought to be
ciMtained ; for tlM* civil 1»w is clear, h^, 11,
«od. de teitibus, and ftlatheus in liis title, de
Ptobationtbus, cap. de Tevtibus, doth assert
posittvlie, that the cry me of lese rnajeslie,
llimie, and generally all tl»e»e erymes, * qu«e
I non possunt facile adnVitli/ are not
epted. And lie asstfrtii, timt the lawyers,
?iz. liatnesiuji a4«d l>eciunu«, who are of
AAotiier opinion^ do sckouvvlfdfcrv^ * nominatum
■ 4 f«odaainandum non es^^r ' -^ '^ tt they
coitfimrcri oci))/ , ' An nominu : i diciuin
^■fideas ad toT^neudum mi,..,..,....,.
^Hbr Oem-gc Loikhari n pests, and Oupons
Vu3W«r, md Kli« cryme hk^, botog «
cotispiralioo of treason ^ which of its oim iia«
ture is roaaaged and carried on by sccrecio
and contrivance ; and which is only knowo to
the complices of the treason, and which cannot
be committed * sine sociis.' The UW% of this
kingdom, and of all nations, do allow * socio«
*■ crimiots' to be * testes habiles ;* and not only
are they admitted in the case of such conjura-
tions, but generally *■ in omnibus crtminibua
* exceptis,' amongst which the crime of Per-
duellion, and lese majestic in the chief ; and it
is absc^utely impossible, that plot^ and coa*
spiraiions of treason can be otberways proven^
than * per socios/ and such as are ' participes
*■ criminis,^ and which is the common orjinioa
of all lawyers, as may appear by Farin. Quoest.
45, and the authorities cited by him, and which
is iJie iuvialable practi«[ueof tbiskmgJom : and
as to that pirelence, that the earl ot Tarras it
under a process of treason, and has submitted
to his majesty's mercy, and that * confessus
*" habetur pro convicto,* it imports nothing, and
infers no more than that be is * sod us cn-
* minis,^ and is still a habll witness -, as to con-
juratiou of treason, * socius criminis hoc ipso^'
that it is acknowledged, or proven, beiug still
under the hazard ol process, or condenmation,
which law regards not in regard of the secreci*
involrefl in the nature of the crime, th:*t cither
witnesses * nn^ue actu, mc^ue liabilu/ can bt
firesent ; so that the objection amounts to no
ess than tliat ct/ujuratjons of treason cnnnol
at all l>c proven : ajid as to the law cited from
the majestic, it importiino more than that th«
objection * rttpfulariter procedit,' in crimes^
which of their own nature arc not * perditiiciliv
* probariuni^/ and are not * inter crtmina ex-
* cepta,* such as the cryme of conspiracy and
treason i*.
Mr- WtHmm Tlrtcher oppons the objection >
ami reply, and furtbir adtk, that albtfii ' crimen
* K ** "'tuiis' be reckoned * inter crimina
fid so Wax^ some pri?ile^, as lo th«
riu..;...v..... [J of witne?- '^ - ^ -^t it cannot bo
(lenied, but there are - 'v>ds compe-
tent afiraiiist wjtne:?^es u _ :.r provln^con-
!V]Hfacie«j and treason ; * verbi causa/ Siat a
witutss is a capital enemy, or that he is * sub
* potestate accusatoris ;* and the objection now
pleaded, being taken complexlie, vix. That the
earl of Taraas is not only < socius criminis/ but
also, that he is ' puMico judicio reus,' upon th^
vame crime, and that as means to proems his
lurijeily's favour, he has submitted himself,
and come in his mnjesty^s roercy, by an ac-
knowledg-meot of the cryroe. before the diet of
citation, he is obnovious to a nKistjuslobjectioo^
viz. That he is ♦ sub potestate,' and by tbe
submission and confession, his lile and estate it
now in his majesty's hand, so tliat he is tiol
only in the case of a * reus confess us,' but in tb«
case of a wiujtiis, who does absolutely depend
upnn fiis rnajt5iiy*s oilrocat, tlie pursuer \ aad
:i' accuser could not aaduce hts owci
u , .. be witnesses, because they ftc^
* t^«i d^untitid/ and deptnd upon \im\ wi
^IJ STATE TRIALS, Sff Charles 11. ieSA^TVtalffBaUlktfJerntmooi, [6TS
IHr 1m ougfht a witness to be adduced, wbo
not only depends, as to his estate, but.as to his
life ; and the law gires a verv good reason, snd
which is mentioned by Paulus, lib. 1. recepta-
nim sententiaram^ cap. 12. parag'. ult. in
these words, < De se coniessus non est audien-
* dns ut testis, ne aiienam salutem in dubium
< dedncat, qui de sua desperavit.* And as to
the pretence that a conjaration is a crime so oc-
cnlt, that it must either be proven by sach wit-
nesses, or otherways the gnilty person will
escape : It is answered, That in this case, his
majesty's advocat had an easie remedy, for lie
might have pursued the pannal, before he
pursued the witness; and' the terror and
apprehension of the event of a process for
treason cannot be constructed otherways, than
to have influence upon the deposition of the
witaess : and as to the ciution out of Farina-
eius, it is only in the case of* socius criminis ;'
but when he comes to treat de teste accusato
vd carcerato, Quest. 56. articulo quarto,' he
says * Regula sit in accusato, oaod is pendente
* aocusatione a testimonio repelUtur.' And by
the second rule of the same article, he says, it
Is a principle * quod caroeratus testimonium
' fiarre prouibetur ;' and he gives this reason,
* qnia prsesumitur, quod falsum testimonium
' dtcereCpro aliauo, qui ei prpmiserit seliberare
' ft Tinculo,' ana limits this rule, that he must
bt < caraeratus propter crimen.'
Sir Patrick Humt adds, That it is a certain
principle, that any person that is guilty ' in •
* famia juris,' cannot be a witness, no more
tinn a person tliat is convict and condemned of
treason, and if he were coii\ let, and condemned
•f treason, he could not he a v. itiicss, even in
the case ott reason -. so neither can the earl uf
Tarras in this case bo received a witness, for he,
being adduced a witnt.*ss afVer he received liis
indictment, and confessed the crime, i«i equiva-
lent, as if he had been actually convict ; and
whatever -may be pretended, that * testi^s in-
"* may be admitted ; vet it was never as-
serted by any lawyei-, that a person convict
of treason caii be admitted a witness.
Nota, That the earl of Tarras deponed oo-
tbrn|r a<2^ninst Jerviswood, but what the other
two witnesses deponed Of^inst himself before
the trval, aiid npon which thereafirr they lie-
iufi: renewed, tlic earl was forefaulted, so that
there oould be no ground of suspicion from
his circumnanoes.
The Lords repelled the olijection asT^!"^ the
toad ot*T«nras, and ordain him to be received a
witness.
IVuHcr Eari of Torres^ ag^cd forty years,
married, purged, andswom ; being- interrfigat,
if about the time that sir John Cftchran, and
commissar Nopro got their c<iiiiiniKsiun from
Sie Carolina company for London, the pannal,
[r. Uoliert fiaillie of Jerviswood, did not de-
lire the de]KM)entto speak to commissar Nonro,
to try if he could ffet him, the said pannal,
irt^id to Uutt commiwioa, depooet sffirmative.
Being interrogat, if thenid Jerriawood, tht
pannal, did not tell the depitneut that he wai
resolved to go to London however, tipon hii
own expenees, and that his and their going
about tJie Carolina business was bat a pretncr,
and a blind ; but that the true design was ts
push forwani the people of Engfamd, wbo cooM
do nothing but talk, to go more effectually
about their business, depones affiniDftti\'e. De-
pones, Tliat the pannal did settle a oorrespoiH
dence with the deponent, whereby be was to
give an account to the deponent, of what
should pass betwixt the country party in £»<
land, and the Scotsmen there: And ontEe
other hand, the deponent was to write to him
what occurred here. Depones, That the paa-
nal did say to the deponent, if the king would
suffer the parliament of Engkind to sit« ud
pass the bill of seclusion, that that was the
only way to secure the Proteatent leligioB.
Depones, That the pannal said to him, Aat thi
king might be induced to do so, if the pariia-
ment would take sharp or brisk measures with
him, or the like. Depones, These words were
spoke to him by the ]mnnal since the hohlkf
of ilic last session of this current pariiamant ;
and before the |»annai and ooromisaar Mono
went forliondon. Depones, That after lbs
pannal went to London, he did give At dl|»-
nent an account by letter, that things wtie ii
great disoider there, and that he hoped ihm
would be eflcctual coursea taken to rancid
them. Depones, That Mr. Robert Maitin dli
come to Mr. Pi infj^e of Torwoodhe's Umsm m
May 1683, or thereby, and broufbt ft letter IS
the deponent's lady unsubscriM ; hot ibi
dtjionent knows it was Jerviswood's baq4-
MTitiiiiT, who was then at London, and tJMI
Mr. Martin told the de|macht, that thio^ in
England were in great disorder, and like ta
come to an heinrht, and that the countiy party
M ere con&iderin«;f on methods for securimf tlw
Protestant religion. And that Archibald, sose-
time earl of Aij.'yle, was to get 10,OOoi(L sttr^
ling, uhcreas fUUKX)/. steriing waa sought by
the Scotsmen at London, whi« b was tobe sent
over to HuUand to provido arms ; and thattbt
late earl of Arg^le was to land with these a ~
in the West-Ilis:hlands of Scotland, aad !
the de|Kiiicnt's triend, Jerviswood the
was to he sent over with the money. DepOBMi
That Philiphaugh and he went to GaUawaliidi'
house, M'ere thcv met uith Polwart and Ga^
lowshiHs, and tfiat it was talked amoo^ thoft
there, that in case those in England shoidd rits
in arms, tliat it was necessary in that case, thrt
so many as could be got on tne borders, riwcM
he in a readiness to deal with stragglers, vd
sifixe upon horses, and that thereafler tbcy
should join with those that were in arma ontM
bonlers of England. Depones, That in ibec
foresaid, it t^as^aid it was convenient ^ <
of Stirling, Uemirk, and some other i
should be seized upon ; and it wai
spukc amongst them, that some perMwdMHU
be cmj>loyed, to Inquire what armil WM i^ f^ '
comtrey. Depones, Thtt it wa* qpdft
673]
STATE TRIALS, 36 Chahles II. l684.— /<;r High Treason. \67i
that the best time for Argyle was to land in
the WHC, vrhen there was a stnr in England
•r ScotfauMl, or wortis to that puqtose. De-
paofs. That every one desire<i another to speak
It aiicli panicnlaf tierson*< as the}' cM>aM trust,
hj lettii^f a word fall nidirectly upon supposi-
tioD, in case of the rising in England , concern-
kg the affair for preparing of ttiein : and that
he wast tokl by Philiphaiiflrh then-after, that
i was a won] and si^i to he uned atnon^rst
n,vix. the simn was by loosin<^ a button on
the breast, and that the wonl was, * harmony.'
DepMies, Ttie psnnal spoke to the deponent, to
tdmtiKa Tcirwoodhe, that he might acquaint
Mr. William Veitch, a foHault tray tor. wh<i was
ia Northamberland, that he might keep him-
lelf dose, and be on his guard, lest he should
Ipcalcbed ; which was since the (mnnal was
prJMoaer in the Tolbooth of Eflinburgh. And
Ah is the truth, as we shall answer to God.
Sk Subteribitur, Tarras.
Ll.NLmiGOW, I. P. ]).
Aieronder Monro of Bear- crofts, ageil forty-
tie years or thereby, $olutfa^ solemnly sworn
airf jpinved. Depones, that the earl or Tarras
■Nfesed to the denonent, that Jer« iswood might
le ■ade one of the commissioners for the af-
firaf Caroliiia, for that he could not safely
Mf it home ; and that the deponent's answer
%M|iHtt lie had no interest mi tlie affair, and
not be a commissioner. Dqiones,
pannal dki wait for the fh'ponent at
; and did go alongst with him to Lon-
dlB, and that by the way ne hearti him negrate
lii own hazard and others, because of Hiack-
amod^ sentence ; and that he heard him re-
rs the hazard our laws, and liberties, and
froleftant religion were in. Depones,
the pannal S|K>ke to the deponent and
I, OMfe than once at liondon, fur getting
if maney Iroui the English, to be sent to the
iMi cnri of Ang^ie, lor bringing home arms for
Ha said earl's use, as be understood, for c»r-
ffiof an an insurrection and rebellion in Scrot-
fmi. Depones, That at the time liliellcfl. in
land, and that the commission was granted to
.llr. Hobert Martin, by all the persons present,
whereof Jerviswood was one, and that there
were pr«'s?M.t, the lo»-d Metvil, sir John Cock-
mn, CessnfK*ks elder and younger, Mr. William
(-nrstares, Mr. Wilham' Witch, Jerviswood,
ami the deponent ; and flepones, tli! y did cvn*
tribute money for Mr. Mtiriin's journey. De-
pones, Ttiat at his return, he meeting witli^be
dfponent, told liitn, that matters were in tliA
condition in 8ootIanil, and that tij«^ ronntroy
wns in such a CfMidit ion, fis little wt.tsld kindiV
the fire in order to the rebelli^m. And this i.«
the truth as he shall answer to God.
Sic Stibscrihitur^ ALEXi\NDER MoMio,
LiNLrrHGOw, I. P. D.
James Murray of Philiphangd, aged SO
years, married, purged, and sworn, prcdacea
four leavers of tlepositions, emitted by him be-
fore the lonls of the Secret Committee, and alt
written and subscnbed with his own hand,
which being publicly read, in presence of the
jostices and assize, he adheres thereto, in ull
points, whereof the tenor follows. Upon the
day of May, 1683, upon a letter from
Mr. Pringrfe of I'orwoodlie, I came to his house
in the morning, an<l he presently led me to a
chamlier, where 1 found Mr. Jtobert Martin,
wlui ivas lately come from liOndon, with whoiu
we stayed a liule, and disc<iursed of the news,
and alAmt the nresent condition and temper of
England, and m particular of I^ndon, which
Mr. Martin said, was much irritated through
Sfime attempts uiion their privilrg^* either as
to the c<»ncern ot the shf riffs, or their charter,
but flint all honest luon were of good heart and
verv hrisk ; and after some genemi disi-onrses
to this pur^Mtse, Torwoodlic and I kt\ him and
walked out a litllr, and he told me, he was ex-
pecting the earl of Tarras presently, for he had
sent to him ; ami Mr. Martin hud a letter t«»
tiiui front Jerviswood ; then he told me that
there were great matters in agitation at Lon-
ilon, and that Mr. Mailin had come down with
a c-oniniis.siun from our friends there (I do not
Icrtiswood's chamber in London, Mr. Uilliam > riineniber ho named any, hnt that 1 behoved
?(dMh, a fbrefault traitor, was present; and | not to expect he would impart his instructions
Ait th John Cockran did at thai mretin'.' ex- j to ine, for he was to communicate them only
•itflly speak of money to be sent to .'^rgylc. for ; to Pol wart ami himself, at h-ast tbr these shires i
■lii|im^ home arms tor invading the kint^dtiui i nod they wfre to fiitch on such as they thought
•fmitland ; and that at another occasion lu* fit to intrust with the affair ; whe.reti|Km lie
Iswi some of fheni say. That there* would hu • assuroil mo, that he hud grout confidence in
t«Wy tbonsand men in h^cotland who would me, ami hi:? kindness to me oblic^d him to send
Wka the rebellion, and that he heard s:r John
fWlhan awl Jerviswood s|K'aking of it, but
CHBOl be positire which of thp two said it.
Bt^pOBeSfliiatat the meetiitg he heard Jorvis-
fNid speak, but di<l ui>t hear him oppose that
iMtonMble prop«»snl, or contriulict the ovei-ture |
pmuted by sir John Cockran. Deimnes, H'hat
mt, Wdben Martin wa« sent down from that
' whicfa was at Jervis>«ood's chanilHM-,
for iiiv.f to acquaint me that matters wei'e iioiv
come to a crisis, and that ho had reason ti>
think Ku'^land nould shoillj draw to arms,
and slan.i by them, Hill they «cre satisfied
anoni the bill of exclusion, and what other se-
curity I hoy could proposi' for tin protvstanl
rclijrmn, and their lil)ertu*s; and that it was no
I pro|(H-t of nii\ incon^idt■rahlo party, but a do-
I si«rii through' the kiniidoin, and that ntany uf
II, til try what ihe )Moplo of Scotland | the tinwt nion, and ot tlio !;ivutist interest ami
~ r their own safely ■ And thtti it was | <*nHlit xUnv, had adjustoil almost every thing
I that tlM> [leople of S(*otlu!id should i m'cessat\ i>m> ih« pur|Mts/, a<td had concorfoj
Idl'fte 'till there «hri>dd hi :\ usv\n \n Kng- mattrrs uith our frie:id»thcr(*, in onler to con-
679^} STATE TRIALS, 36 CnARi.Bstl. i6S4.^TrMl qf Baimf of Jenbwaed, IfftQi
I
•nrreiB fttint tliis, anil Itatl af^rccd H Ailrancc
money fov fiiriii*bing &rrn» htre (I do n*>t n -
iueojtit;!- lie tuJd me niore pArticiilars at (I us
time); but snid, Polwarl uould 1h> at iialluvv-
sbieU that night, mud it would he iitct^sai v
that the «arl of Taunts and I !»houU tunlVr w\i\\
bini fully on the businefi^i. Alnitit this timt*
ihe earl of Tamis lig;ht«^l, ami Torwoodhe
having left us for a littic titu<», being" iroiie to
tyriu^ Mr. Martio, the eai-l of Tnrras asked mc^
what ntwi f I toid him of Mr. Alarttn*^ bcii><$
tberei hut that bo had given mc no accouoL of
the 4lesif;n of his down - com iiiq^, tvhich perhaps
lie wouhJ acquaint him )vith, but by ivhat 1 had
Iteard from Tor»oodlic, I understcxKl it to W>
to cngadtTf «s to rist in arms <khaiily ; t^beriat
the c»rl ut '('arras hiiuimed, and J^aid he would
look ertj be leapt such a Ipap, or some such
expixs«ions, Pre^emly Mt. Martin came and
Uie €arl of Tarras, and he retired a little after
the reading a letter be e^nve him, the contents
ii'hereof was (as the earl ol' Tarras informed
aie) only an orrlor fiom Jervii^uoiKl to deb%'cr
aome nvjiiey to the bearer, which be had left
witli him, and tht? earl of Tarrns t^alli**! for his
tervant, and bad him bring- up the mone\'. in
the mean time, Torwoodhe ;ij<krd mc, it"^ I bad
ttciiuttinted the *^rl ol Tanus with what ht
spoke to me, and I told bini, 1 had let »«mc-
tbing of it iall to him, Uiii it ^as not to im
tl>(>ui<ht, thai p<;rFans of stoHc and qnaliiy !
wimid eng-adfifo m sucli desijini* at random ; *ii»
Torv*o<ulhe t»aid, tlinl iihongh IMr. Blirtrn
would not commune wiili us upon bisconimis-
aioo dirn tfy) yet he ihoiij^ht it would lie lit
we conferred, and without taking notice of his
commission, discoursed of tbtngn upon sup|io-
aitions, and a« our own pri\Tite notions, ahstracl
iirom any prospect of a present desijnj. So
a4\er dinner wc four went to a chamber* and
a*^r aome general discourses of the discontents
of Urth kingdoms, these snpp<i«iitions fullowini;'
were discounied (and a* I rcniembt*r Mr, l^lar-
Itii startetl ihcpi all, or ihennisi part), vix. What
iftlie counirey party in En;^lftnd should have
thou|ii;^ht<i of goiuf( to arms* (rvhereof be knew
not! ling, but only snppuseil jtuch a thin ^, for
discoursing a little freely, iind to know our
acnlitrieat5, whalwc thon-hiconUl he«xpccteil
itwre in auoh a cai*c)» would it not be expedient
to have a settled correspondenoc l>ttwixt tlmt
party there and here? and nti'^Mit not ntaUers
W soadjustetl, Ihatlx^th kmtrdoms should draw
out in one day i' and might not as numv be
ex-p*:cie<l to umlertake in these shire!»/iind
about Edinhurt^h, MS would serve to snrpnse,
andsoixeour rulers {[ do not retnember any
iMnn^d, but the then cliaucelior and trea*^urcr),
•Oil MMne to join with these on the ] nulish
borders, to aMsIht them lo surpri:>e IJorwick^*
*ndtffor that elfeot, any fiorHf ordra^fions,
thatsliould be in the iK>uud2» nn^fht not he mu
priced, ihat their 4ion»e and ovms mij^'lii be
Ifoll^n to furnifih the countrey j>eouk% and
8tifltn|^ Castle I* rind if Arsfvle should at the
mote lime hmd in the Wcsi^ and raise that
cvuntrey, wotdd not tbeae uetsures cotartbule
much to the adrai^oement tmd aectir
mtcrcst of that party, here linrr -•
govtrnmeni mouJJ uc djsord« i
steps would eucouiii(;:c all that !
tion to the countrey-purty* to
|i;^iil K Am\ M-nr many of ihern
in, and ^o they mi^rl
t* , iM aU places? and iit^-,
ex peeled, Ihrie \V(niId be ax many in this kiaif-
dom, as w ouid l»e able li> deal w ith the lor©
here, at least divert them from iroa
England ? Thiji »» the ^m, us I rei ttenib
what was^ proposed aiul dieioour^ed uf,
I cannot disilinctly say, it was in thi« metb»
and expitiision, nor was n'l
droppetl now anil then« as <
tff j ^ to it; «nd tln-u^u ii.uin.^l
I I I hill %vas» s[»okc on thc^s^e beacU, aud
Uii t.i^M.iijily what tbiii and tiiat umn S9iid« vd
I reiucmlHn' the&e fullowinj^ answers *»«<
fl^iren, and (»s I jndgeii) acijuiescwi to ly
the whidi* coropanv ; ami ihcy were cer-
tainly the earl of'^i;»rrai« his i»entiimtJt]i Titid
Tnii>e; and every one that ^pokc, used this <^r
f$ome <iucb prt'cnniionf that if they ware
conciiiieil, nr lo give counsel in ikuy sncb
eauie(asiluy were not, \c.) 1- .^?* todw
settling; a correiipondence, it was c
be very cim^t^nieot for those of a co
tere%t,*but the preic'ut liicum^l
were such (a^ we tliouifbt) Ibi*- ^
found hen\ who wui* Ht to i.
would undertake it. 2, As to
rhc s«me time it ronhl not be ib
divulging" the dotign to all i
which none would undertake, « ^
ready m desperate cirrumstanccjs ; and t!bc^
CiHdd not have generally much iufliKiir^*. .'S^'il
thing wasi not at all udvmubtefnr
since if any of England *fi own nv
ried they would not stir for any sucii
the !»pring id their motions bein«f t»Iw ^
don, there might happen au im
the appointment, whereofthest-
no titneiMis notiee,a«d iso rnigni k* rp
whereby they would be eXfHJscd a t«^y«!|
they should ^uh"i * -^^ * ■- - - • —
was biirdly pos^i
employed, are t. ...'-- -■■ -
ruly principles, that if once th»
in Iheir bands, they would n<
to order, without a tft'c^t^f ♦'^
ihetn ; neither would any e\i
gyle's landing be a just ground ior jsudh\
iryst, considering' the uticcrtainty of sea^t
ages; and if Ai gyle were to b'
doubtedly man\ jieople would <
were to no suspected ofprivat»r dcxi^^mi,
that restoruig him might lay liim aiadc:
atw, thai dL"»pair rui<(ht blincf hi^ iimu
dence, and prompt him to uu^olid aod|
gevtt^d uH■*'•^"^■, "*•-' ■-' ■' ^•■^-- ''- '■'
that lew r
special ii-
hardcircuin
4, As to th j i^ , , mi ,
veigbcd against^ Wi an acuou oot be UitrngUt^
I
STATE TRl«-S, 36CnAntEi* II- ififii.— /<»■ High Treagon, [67t
tutne^i pciUslamU (rs^»GriBHy when tlie vei-y
•ll
rl<
a ft« «u( ll
t^«
: lUnii, it
Msive nmi9»
■ ' " I r in;. Theue
'rt f'aH ; and
I 4 mtnd tfn'
virtllM |>l nVHlt-- .1- '11 V'. .:lb
ne Mrho had rii l
"^^ riten at Luii^iwti, ,j« it
:; Uitn our measures ;
I II suit ulrootlv, ihen
irl of TAn'a« and tne,
r ai GaIU^vsIiciU^ and
iMin with him, aneut
LC ; «o ivt; hastc*<i
JL both i^ct home
irinlit* h beui^ Satartiay, ontl wo unfur-
fvr aay in cr abmacl, ami Tor«(HMJlio
HH I was inoitnltni*^ (as!
J^ ^ not clear we ^hi»tUd coiu-
ra»to I*.! T-t * J. he ;fcvas some-
•i»« *•< , or the like; so
tlead ui .^ii.o.Mi'. t >-Mt: away together,
liiMQ llie way we wer*^ both of opinion,
■ippositjnu*; um had discourseil of,
Mtt lis; ttQd resolvwl^ it
ittttft? I'alwart, as we stii^
. we irouid adhere lo ihf: tbrmer answer^
•#uiil vndiTtitk^* Qoihinqf in theur methods.
W^ C^tm'' usheilitf the laird was
, Mid F-'i not cx>me ; »o we had
liU ttf gti uvviLVr heitit,' holh ilarii|«ed with
ivku bftd fwueted, iiud iaciiiHiitr to hr tt re td'
uhJ by «u
band cauie.
%hm\f
^^,
^««dai iiivciii
nifflittsti' -'
Mflteyrii
Oakif/ivu to C'
^Uimuo «iti the filf.ur
iMttttkl, tti he th( ■ '^i
duun!, ;tnd
I I be in pr»»-
».*H*e, that iIk'
iiii^c day Lujwui^'^h
• heiU would iioi
ntit $Uy unJess I
Hud tiul Ufiii^ re-
.vsh«*4ls on what
I rv, un |irvten€e 1
I. hofiCK or J I me,
;H%whR'h9eerif«l
• rt^torneillo
;ter Folwart
Ltid tDe« ajideti-
iki;tiad weh^iviug
[ (t if wc Wire ft t^v-
tiLlwiv <<illl<>\V-
and importance with thai eompAny^ i» which
he iSBenlcd ; then We sat down chws togfetti^*,
atidt OS I rennemher^ Potwart he^n the di^
conmc; hut lince I am nut fthle ta follftweJC*
aclly tho nu'^KM] of our conference^ or Keep the
s'&ry ext»f€«sioit« uwd, or reiwiil all thai wat
s|Hikc» or to tell distinctly ^imt was every
m.'inN puit of the diHCOiii- * I ^UAl <.« t dowa
tlie lieiidit^ andmoiitreiii i a*
of, that f reitit^rnl»ci% ni s 1 ng^;
1. J*olwart siv^nHlcd liiat iw was credibly in-
formed (but I do not remcii^ber he named hii
iofornit^r,) rhat the counlrey parly in England
uowhldiaw to the fields sh'oftly, as he fieard
belure Lambuss ; wherewith Gallowslieili
Eccmrd visibly surprijicd^ and heinij ti^keil, if
hii heart failed him ah * ^ t i , 1 j J he d»d love
it better trtily to he w.tl 1- ovrn parks
in jK^acc and quiet, than lu ik: luctidliuEf in euclt
matters; however, he assured the lonvpanyi
that if there earn e any troublesome world, lie
would join with ihemVirmly : and the earl of
Tairastsaidt he wondered to hear of any such
reiolution in England ; for he took it fvt ft
principle amon^i that party there, that they
ijhouUi make no stir in the kinj^^s life (whica
tlte whole company owned to be their opinioa
nnd desire,) I*eeau5«' that might ^ti-eog^then the
duke's interest, and he suspected it wn^ the
project of the commonwealth** men, with
whom he hdiei'etl lew Hoots genllemeti would
join ; and he waiu almost persuade^i the duke of
i^lonmouth would not i?oncur lu any riHJn^
during the kinjj's life. To v'--^-
aneredby Pohvari» that lie-
that principle had been |{€ii^ .1.
but it seemed they found they bv!
to do their bustnes.s now, or lay a^i'
doings it herealler, which mttfht he ; that if the
charter of London were let 1*11, tlip^ wDutd not
only loae all &afe oppottunity ol'ilij it-
l^rs, but a great part of their striu he
heard all thmgpi were concerted lautiiaily be-
twixt MoDiuouth'H fneodsi, and the headiiof the
commonwealth party; and thciuL ' ' ' ird
31 on mo nth was shy on that ac€04j v ,im
hoped he would en^tfe, forothcrwist m ^ ^ul4l
be* deserted by tiiat party. *2. Potwart laid uit
the suppiMiitious above-writieD oa orertnre^
cottcerted betwitt our Iriends at London, ond
the principal men of that party there : so
iurl of Tarras and 1 renewed our fbrtiier
HWJ'i* alM> above- written, and mainiauietl ll
with all our vigour, wherein Gallowsheik
joined fonvardly with U6, and Polwart a>iserted«
we went on very ^ood grounds^ and he wat
fully of our o|iio ion, if things we»e entire; but
releiTcd it to be cutisidered, whetlier it wtaro
better to comply W41J1 some of these methodi^
llitHiofh nut 50 propir and jtistidahle asw^
Ik.' niched, llum u* di!^p|)oint the busine
lally, whidi iiuu^ht Utol t lie best consequ
to liU the party ; yet we did not coiide>^cen<lf
as 1 mnemlt*' <- '" if^rtakeany of ttie»« me^
Ui4)di* Autt A fuvther arguiatst od*
duccd oifain:-! ^ . . Amg ftbovc-witttea, vix.
in-
ird
to,
of
unci
•70) STATE TRIALS, 3G CHAiLEf U. 1^84^^— Tml oj BaUiie of Jer^tmowMl, I
I
P
u Shiiflesbur)' *s liii)e, wliicU
* y w *n'e aot to l»e rc1ie«l upon,
»^« it u 'I ID be cQfi^itler^, %«lkfit uie-
thoflp ' proper ill I be t'oiM|iiin^v*?t
QJ' ltd lo fojbvy in cane of EittT^
t*^^ o< rt^unent it w«jf !iai(l« thnt all
*4ty^^ ''^^ ^^*'^' «xiu)<t be ijXj'cetC'd or <ltfsirtO frotn
Vjx>lliiufl. Wiis^ timr ii|»on thi; certain ii^ms of
loglaiidV \mi\g iit the fWl(k« tliose in tbf
S^iQUtbi^ru jtliyres, n bu would ouii I bat imTt\\
?*^' ' ' ' \ Rhd (btiw »t<Km tbey
cni i^ened SIS wunlii btf uUte
*** ^i-;*' >»'*' ..--,.:- Qj. jjjjy ^^^^^^
flcn risinif to Ui join iht^i.
ti/U liiat i( w I htm sbyres
<xf' E0|;iuu4l V i>i fur »UL'h ;
and that i|i* ^ ^ „. i , ! there to coin-
IQatul ; ftnd that liicn ii wuM be iivflm>iiftbl« iW
Aif^vk* Itj land iti tlie We^t, aod tlits^e parties
<»ii the Unders raijtlit divert the farces^ till he
liud tiii)« to nut iiiinsclf b a posture. These
ihirii;^ ^eented lo b«$ ibe seutiiueuis ol the whole
pi»ai[i.iny« but were not iitmUy datermLued till
1^ upimon oi' olbers, who were to he com*
WW' d with by Pol wart, were koown : and it
#B« repreteuleii^ there bebo^ed not lo be aoy
wilful aud obctiaalB «4herug to onr ow'ii
thf^M/'*^ ' rThitigv, btit an mutual cbodesceod*
ai" > concerned, otherwijie it were not
|iMi^.„u ,, L^HDg'u piiblick design to atiy g'*>od
tWUe, 4» AU the eofnpiuky sc*-^metl to "aijree,
^hut they should uudeiloke iiritbiin;^, or mote
iu that i^iMi\ U\\ they hail a full aud cc^rtoiu
ai^count what £nf;laod [iroooseil, what tiiethods
ihe^ re^olve<l to bdluw there, who were to be
their U^mk ; tvtid that ii' they desitrned any at-
tempt oil tlie king's person, or ovi;rtitrniD^ mo-
nirthy, they woulfl imt be forward or clear to
joyn. ^ud it beiug here iusinuuted, that the
luofit they erruld do, at leaiit tor which there
ctiidd be any ^laosdde prt-teiice to justify, wa«
to draw tog^her, anil wtthout any act of [iO!»-
tihty, vend addresses to hin (lujesty for redress
of the present aliutHit oi' tht! "'oveVnojeiit, and
K.r olitaiiiiiig aiUlicient security against the
tiiey appreh&^udifd to their religion and
>. it wiis aaid by PulwaH, that he was
apt to think, that was tWiv very design ; for
he ha^l heard it was generally believed by that
warty in England, litat if once they were in a
hody, tlie king would be prevailed with to quite
the duke, to be tried lor Po^Jery, eorreisp^mil-
Hijce with France, and accession to the Ponish
plot ; a»id then, if the king were once free troto
the iodueuce uttht? duke'seuun^U, tbey were
co<iHd(jnt he might be luovetl to refonii their
abuse*, and §erure their rtligion» and liberties
for tlie future to their content nu'iit. 5. Jt was
resolved, that till we got tht! atbri'yaid accouut
fruiu Eo^land, and were satisfied thereanent,
ftud knew rjtheis here, who were to be com-
innodJ i^'jth, their senbinmLs n[ what methods
urere luost proper Ibr u < should un-
tier, .ki', we eihunid not m I'lier; only it
Wu leit to Uie earl ofTi&rrit^ and mt\ if we
tli«*iUia fit u\ adittttint sir Win- 8 jot younger^
HUtk JMm^ «^ the matter nl' ihts ooofei^uoe
overly, without taliiigiiotieecf air
or itiieh an conPfrv^uro *. athI it nu
uu^nded to
had H^mif' n
ot uur nKLuhhoiii-9i, iuid >' i
ainong^ Uivii^ litut if tvc
lyuig aoconrit,
knoiv whei^e to
Heie it vviis not
iftheeinhd Ti<:
and I^ mu ^
i*ari of lh«
ink»»h) r< i^iun
when tlay hem
tiysr<:Mho mcii i.
bettvixi %vhich Vu.- l".,^^,lld /.-
f»ected; but in *.i .^ u r-init
laudfi sooner, wc pron)i»ed to att
rest, that we niiq^ht meet prc-.iii
cjyie re<]ui(ed. This is the
sum of what passed at the U-
encc^ that I can now remember; l^uL
membu-, 1 was likewise tohl these
parLicutaf5 ai piivai, by Polwart or Tor
(whicli of them I camiot distii^ctly lelljtlie i
of the aturesaid confert^me, or witlitxi
UmeafWr. l. That Polwart kecpetltlii
respondent with our IVicuds at
remember not poottvety of %ny vf Iben
was named to be on the tntrigne there^ i
my lord MclviK s»ir John Cochran, J«
and commissar Mount (tor 1 hardly knew an]
of the rei^t) and, as I thtnk^ caramiam f
was called his correspctndent there. t»
the money to be adranced by the (English |
to Sc'OtUnd was ready wheti Mr, ^lurttti i
iVum l/imdon ; and it wase&peci
few days aftei* it would be d^ J
some confident to Holland (whethi r by bdla,«
in cash, 1 cannot say) ; if was called ten
sand pouuds sterUug^ and wit& to be empk
(as I was told) by that cantiileiU* at MgyU
sigh I, for buving arms, |»roviditig ship« to I
ptirt them \nth Argyle, to the West h«v«, i
such other charges*. :J. Tlut how soon
friends at Loikdon got notiet^ of ttie i^th i
of the eofitident forsaid, and all other
were finally concluded there (which was
peeled ^^outd be about the middle of June, as J
remtmher), they would eoiue UnnMii to4| i '
they passed, woiihi give them, or one «f t
un particular account of all rrsalutionv 1
be communicat to the rest, tlmt it was i
eicpeoted by letters, that bebovefl to be \
figures and dark expresatoni ; nnd, ag I
nietnlipr they were written as it i
Carohna business, or sooie bousliohl I
AS I was told ; for I neeer runeDib^ I san
letter, either direct to Loadoo, or sent 11
on that head^ 4. i was told there was
and a w ord agreed on by thai party , so that i
might know with whcon thrv u , lit uj
dom: the word, as I r> lla
and the sign, the op« I ^ *'ns :
breast c.»ttt, And fihuMiog i hem presently j
1 cummomcAt u% tike earl of Tmrrtta, 1*
not mind 1 ^ver aaw it iiaed, mot^j^ \fli«0 \
STATE THf AU, S6 CHAtt &s IL iS^^^for High TnaMan. [GS$
His )lifcjcsty'i$ Ailvncat pmcluced other De^
fjfisilioofi, einitt^il by GullMWslieib before the
ords of the Svcfet CaKnmilwe, whereof* ibe
PiwiK*4my Imtt m U^u-n, ihiHit ilie end of
^^e« : «« ttbenjawip^ i littk trot-l}** lie «.tked
H[ I kail lli# wwd aad sfgn uf tliv CaHintt iiiey ;
Hbd I iMIrii^ fliMllllMafI, ti<« «*1 ^.MortUiiig to
RfaAlsnneMjiiilauigpvvtl I 1 i boen
^prol 1^ on«af(«ni exp«eied here {an \ thittk
b# mim^ i«rfi»WiKMi or oonninissar Sloitrn)
dust afickl Aijv I'^^'^t ^*^^ there wu9 tione come,
fnitM be lenrn tlial iny oftbtHr t'neud^ bo^l
~r rn jbr iereml po«u* FolwHri^
I 1 I, met at GnUowsht^Us, on
in4«^i loir; hyt I iTiind nothing' pnsst-'ii
;?Ble whUpenogs, Duled 8ej>ititiber
wxuntcn,
'^3» 1634.
The ilepotftboti abovi* writt«^ bein|r reed to
ihtCiiil Jmsic* IVfiirray ui Philiphau^f in |ire-
9am ^ the jwttioe« &»<] xs^««i/eii!. he iidhere^
^ ni «JI poiiils a|iou ouih
Hie «lili JiTrrr'
HaH 4t their d
ulucii
iU ilUi I
them* tljut
ih« imt!}
pom.
i»n to
-J you
Se«l
I* the
?! ol* Tur
cam*'
I kg. And
in OoJ.
LivtnuGow, f , P. n,
of GslbwahdlSf a^cd 3a yenrs,
Vt*. and ifworn ; dt'poti'S^ That
,, I I- ■■ . , ■ , .-vMne
la.
vivhl f^ae in t.
shouM n
wmm th^
, whiife t!
, and Ifi
v^eil wmi tktt
^ 4f|^ytie*« fvir)
tuiMi wf tW urn
«ia not miirh «^
^«i ali» |if«»f4>
mmim\
and
and thai ihry
T 1 the kin^'a
,' town tif
.htre
>, It
lUlh
; inr ao
voiit'H fchmild be
tftf? rmiritrey.
' r*\ as
Edinburgh, ihc Uth of Saftaahif, 1684.
GtiihK ' ' : I »i .fts. That the earl of Tarra*
rind Phi!i i^*_iitjj m his house in May,
ic^u^ r n -.^ ' " -: TT E,^.
lufH' to riv^
wjti. J,., i.., .i»iu i.i ....i.^., , MM ...... a.r, iiq4
that Pol>*art wuB pri*iM^nt mt that luet'tinjj ; aiid
toKl he Nvas sure th* fMu/lisliiiis n mi* luff.t so,
and thuF it wa» <{ i;^
u mo ng<st them, thai ; v^
ami Stirhng' ; and that it vr^& talkt^d ainoiig^t
them of briiigiog- the duke of York to trtul, ant)
th»<^ the kin*: }MtM t^bat^lon iiiai.
Sic iubii^rihitur^ HuGH BcOT.
Porth, Caiioel.
Quoensbiir}\ Jo. Drnirunond.
George I^laekenzie. George Mftckea;
EoiMiuiiunt Oc^^cr %9g l^Si.
Seder utti
Lord Chancel ior» Lord Ptmidm^
Lord 8ecrettiry, LoH Advoc*t.
The Laird t*f GuUowth^ilt^ prisoner in
TollKMtth of Edinburgh, bein^^eatled Mid ex-
amined upon oath, de|»0Qs, that in the iiionalh
of May, 1683, the earl of Tarnis, Hunie ^f
F*oIw}irt Hdtr^ atid laii'fl of Pbiliphaug'h| cnm«
to this depttrfrftit^s house, himielf bektg abieiit |
at hi« coining home, they w«r« ipeftkini^ 4if
the security of the Ptoteatantreligwfii ami «f
a party in England, who would secure Of MtM
tli^kini; or diHce ; and that if any »h<)ald nte in
arms to defend them, or to rescue the ktiMrand
dtike, here was another party who uraold rise
in anfm ag^ainst them } it was pfoposedi that
{fome country -RKHi i«ihoukl he apokeu to to try
their rt'^iotiitk^ns, ami that tlie rvniolutiuiia of
Eufrland should be told them, to aee If they
Mrould concur. But the dc ponent d«e« not re-
member that this profioflttiou waa approred^ or
undert»ken to be flotie by aoy nmetil; nor
does he remember who mana^gjed toe di*Coufte*
U wtiti hkewise pn>poaed to !»eue the Q$cert
of state, o-'^-ri^u* ih* chiuJceUor andthe^u-
Tiit ; and r i John Cochraa tw 10 COfoe
to the \V t„ - : i >^\ -mA^ for adhraiieenieiit of
th« desi^ ; nr ««aH of Argyle w%h to
land in the W > ^ iniidft» nnd to raii^e that
country. Of the^ matters ai' o wergt
prestnn, didoourscd a^i of an ( thej
were a£;itiLtiuir^ :ind ivhcrc-iti tliuiu»i;Ue§ wert
ptLrtic'ularly conccrnc^d, thout^H at
ihey did not toneludt' whht th'ir ettrrbgm
nhoutd Ih*. The ti/tiy.ou w h V th** d^jmnent cttn?
683] STATE TRIALS, S6 Charles II. l684^7V«a/ nf Baillu ofJfrtiMwood, [GS^i
Edinduroh, December 03, 163-1.
Hugh Scot of Gallowslicils, being: solcinnly
sworn, in presentee of llie justices and assize,
artlirrcs to the deposit ions \\itliiD and above
tvritteu in all |K>ints.
Sic subicribitur^ HuuH Scot.
Linlithgow, L P. D.
ilis majesty's advocat, in fortificatiou of the
rortiicr probation, adduces the printed copy of
Mr. William Carstircs's dejiosiiions, * oinitled
* The following account of the Exnmination
of Cai-stairs and of matters connected with it is
oxti-acte*! from 2 Wodrow, 387 :
" I come now forward to give some account
of the suftcrings and severe treatment of that
truly great and grood man, the reverend Mr.
William Carstairs, this year. This extraordi-
nary person is so well known thronsrh Hritaii;,
an<r, I may say, all the reformed churches, for
his shining piety, his universal and pnlltc
learnini;:, his candor and iutei^rity, havin:; the
character of a truly honest man, from thai
<<:reat jiidt;c of men king^ William, and bciiij^
in providence but lately removed to his master's
joy, Iravinq: Itehiiid him a most savoury re-
membrance of his constant and indefati^ble
services for Christ, souls, and the good of the
church of {Scotland, that it is needless for me
to say any thiiiffof him, to those who are now
on the stage ; but I wish some (it hand would
be 80 kind to posterity, as to give us a just ac-
count of this excellent person. The hardships
he met with will be a lasting blot upon this
period.
'' That I may give as large and yet succinct
accounts of his sutferings this year as I can, I
shall begin with a letter he war. pleaseil to
wiitc to the author of this history, a very little
before his death, which he allowcil him to pub-
lish, and I promise myself it will be very ac-
ceptable to many readers ; and then I shall
give what I meet with anent him in the regis-
ters, and other eertaiu documents. I lieu:in
with bis Letter to me, which was among the
last evei' he wrote :
Dear Brother ;
You put me upon a business, which, though
it be of that nature that i ought to ilo some-
tliing in it, yet it is uneasy to me to think u|>on
it ; but I shall give you a* very brief account of
some of the chief particulars of it, in so far as
I remember.
I was taken at Tenterden in Kent, the Mon -
day immediately after the execution of that
great and honourable patriot of his country,
my lord Kussel.
The chief tiling which exposed roe to danger
at that time, was tlie suspicion they hail that I
was 3Ir. Fei^usson. I was admitted to bail
for some days ; but so soon as they had a re-
turn from court, I was committed prisoner to
the common gaol of the place, no Iiail being
allowed to me, though 1 was accused of nothing,
but of rei'using the oaths, one of which had
I before the officers of stale, and other lords ui'
I privy council, and ksaves the mine to tbe as-
j size, and uses it as an adminicle uf probation ;
• for though it was capitulat, that he slioulil not
^ be made use of as a witness ; yet it w aa agiwd,
tliat the deposition should be puUisbed : and
likewise produces the principal dcpoaationiign-
eil bv himself, and the said lords.
The lordsjnstice-gcneral, justice- clerk, and
colnmi^sioncrs of justiciary, admK the paper
produced as an adminicle, and refers the im-
been then expired by law, viz. tbe Oxford
oath.
1 continued there for a fortnight, when J was
sent for by an oflicrr of the guards, to be
brought up to London, which accordingly I
was, and committed for two days to the haudi
of ainesseii.gfT.
During whieh time, sir .Andrew Forrester
came to me, in Uie name of Kin^ Charles 2,
oliVi-ing me a pardon and all kindness, if I
wrtjld teli what I knew in that matter. He
told me, that the king did not at all believe that
I ^vould be concc^riied in any such practice as
the asHiissination of his person, but because 1
might hear of it U|ion occasions, he desired ts
know if I did ; and I gave sir Andrew sock
answers as I thought were proper for me in the
circumstances I was b. He very earnestly,
yet ¥ery civilly, besought mc to make a dn-
coverv of that plot, as to other things of it
Which shews the folsliood of what was poa-
tively a*:serted iii an account given in the mune
of the king and duke of York, as to that mat-
ter ; which is, that nH\er any hopes of fovoor
were offered to any to intluce them to oonfesi.
I was afUrrwards ealKMl before a comiutttec
of the lords of the council, aud uot giving them
tliat satisfaction which they expected, I was
sf nt cl<»se prisoner to the Gate-house : In wliich
time, I was called twice out to be examined ;
at one of which, if not atlwth, was honest and
worthy i\lajor lloims, who was a |iriaoner in
the Ciutc- bouse too, and bail been a friend and
oorrcypoudent of the earl of Argyle, to whom I
w:js desired to give a cypher oT names to oor-
rtr<ipond with, to which 1 added severals with
my own baud, which was well known to tbe
eaVl of MelfonI, which afWrward proved not a
little pi-ejiidicial to me; for it was found among
his papers whoji he was seized: He also told
the lords of council, that 1 had told him, that
there had bc<*n some consultations as to tbs
hfuding money Ui my U»rd Argyle.
1 continued in the 'Gate-house eleven weeks,
close prisoner, looking upon myself aa abso-
lutely secure, under the proti*ction of the plain
law, of the act of Habeas -corpus, against bring
sent to Scotland : And theretore 1 did, in the
first of Michaelmas term, petition the court sC
King's -bench, for being brought to my trialf
or admitteil to bad.
I^it the very day afU'i , 1 was ordered to bo
ready for Scotland in twenty four hours, to bi
there tried for criukCK committed in that king*
dom, though I udther was, nor cauld ptaou^
STATE TOIALS. 36CMAEI-BS II. l68*^/ir High Trrsson.
llwve»f to tin* infjui^^ antl onbins llie
1, ui be taktfu til
I C'oliti >Iiii!k-
(>rivv <Huiiifil^
1 Mr VViltiani
vvn lUe
1 mt-
•Wfl T'
mwsmd 111
icj bwil it oo1Uaif>tioih
Sit iHhncri^itttr,
William Patsrson.
W rtt!l|y of tiijf crimen t) t r • \ uiir |^»eeri
ffTiurcTtl jurors tJiCTt% bu(
I AcDQrliiiKtyi 1 wan siMit lo ^>r<ji}.Mitl tti liiii
m^mj\ Ruchia Y^iik Ut, M^ilh >;ev eral other
n^rllbr g^cetSniirn of niv countrvt and wtiA
villi tketo eomttiiiiAiiI to llie TolUiJlij oj EOin-
^•5l»# ifbcf* I ^^ clo^e (Kii^oticr fur se%«;ral
MttJlA.
^Jb|JJ||c fbiour of urn II m
HBajartTmlftlfET t^n ir, xnti Hit% fth ol' u« fibut
aticr, we
It? *»f our
n to
MtmU
' fuif^iful friend
'», v*as pitclieil
. relUsal to
\ to Mm,
<Tii of the?
' UHturi'ti,
. ttud the boots.
' '^ "Tr at matter
i (t< ' nil that DO
rt^f^itc&oi! , ^ aii^n€<l» to
Mrl iif Ai^^'k-, or hm innndfi^ from hi^
4«|f ^, lit uas pr«>y:ukd on tu ^ktyphcr
*«il itimci oi ?i that
, tijiiie «f ''%Uidi I «as ex|)i:£i«>e<l by,
!» hir i|«ii ttnt ltf<*>u , bill ih** «irl of MeUbrtJ,
" ' I'lr^m, from
■ H fnimi.
I was ordered tbat
luiotHe irons. IT vir ^,
1..^ if I fMf', and i.**.,< -.i, V
t I ktievr in thiit
uii that niiiiiy in
'.: thtuir^bt very
- i fiibould not ue
or fUe tvetks tiint', to
ihtit fihonld he nro(iQ«ed
' ^v|lat 1 should be my*
■ ' \ ;iiid Ui^t noibing^
^i redly or imli-
i) tliut I slirmld
vIoSlp; ihcK conditions were Kta|^*
I iSMiBitlmiif (hat I cotild not weU
> I ttoalil V) ible to go ihron^h » can-
ntitiu
The Derosn-ioji of Mr. U'imjam C%ft«nrAni.s,
when be was »^ +♦!'
ikunret Coniniii d
renewed n jm (ti iio-
L'emW, 1 uie Lords ot
EoiS^Dtimi 'C \sTLt, Sfpteinhtr 8, 1634
IVlr. William Curst arcs being examinpfl in)on
oath, conlbnn to the condt'SCfc*nsjoii v^ivt^n in
by itim, und on the terms I herein i ;
de()onti, T]iHl about Novemlier, or * ' u r,
168'i, Janfiet) Hteuarit brtitUer to the bin! of
*lant torture during my Ufe ; however, I did
resolve tluuii^h diviiR' assistance to atlventurt
upon th^ i ' jitcting at tfiut time tlie eon*
ditions V. iiord had diificnhly obtained
for in c fn> in Ui< pnvy coundl.
I\l y reasons werr, becau-ic I imagined, if I
could once eoihuc :>o se*i re torture, either the
lordk of ihc couoe'd uoidd U;i\v ^irne reirard to
uiy cliaracter^ and not ptit me lutther to l^rturei
or what I suffered nii^bt throw me intv a fevert
and BO I might be carried oif the world ^ for I
can declare, thnt dt^alit, eitlier by aseotenoe or
any other violence, ii herein my own baud wum
not concerned, would have been welcome to n»c,
I was broij;^1it before the privy council iii
England, and some depositions of major HolnDS
and IMr. Shepherd wei^e read against mn^ bat
neiiher of theui was ever coiiftoQte4 with me,
thougrh one of then) had been ko ivith M>Die of
our countrymen upon that occasion. When I
came to Scotland iu company with scverat
other worthy - rt" ■ m of my country, and
was committt i above^ prisoner to tha
Tolbooth of L>.MiL.i-»^ii| 1 was ai lust brought
out about noon to the council, about a fort-
night or three weeks at\er Mr. Spence*s decy-
phering' tiie tetters, and told by the lordi) of
privy council, that 1 must either auawer upon
oath such question <: as they gave Hie, or go to
torture while 1 breathed.
And indeed chancellor Perth had told me a
iew day.i lielore, that I liad refused so mnay
sin<^ular favours that had been ofibred to me
beyond any prisoner, that before God I should
be tortured, and ne«'cr a joint of me lefl \;hole.
VVheo I was cjdled m before the council, th#
declaraiions of major Hohus and Mr. Shepherd
were reatl at^^nst me. I told thrui, llial i
could SH* ..-'«!' •'!'•• *'* ihem, bcenuso t had
neviT b' ■■' jth them, m hich w:ai «
plain «vj'l-:- } Itad staid ihingM .iKainit
me, which they i;tould not have hswl ilie i-onfi*
dciic« to hate assorttd hud I been pretkCut %
but that vva.*< over- ruled,
llitu I was urged tu aitAwer upon oath iha
i]np!^!ions that should he t»ro|iQsed to me. I
told tbem, I would m^t do t but iu mntteri which
wtre looked U[K>n - f They told me,
that it should Iv fn u ted, that oorhiiig
that Is:' ". in%t me, not*
should li 1 answered
were Lrut wi i,iisv, k ^uni^ ii. ni^jii a bad pret
cedent, and I was oot ^ilUug^to bei»in it.
687 J STATE TRtALS> S6 Charles It. l684w— 7VM oj Saillie of Jervitweod^
Oultiiess, wrofe a letter to him from Holland,
importinf;-, That if any comnderable attm of
money could he procured from £ngland, that
5ometnin«jr of import«uiec miglit be done in
Then I was asked, %vhat reasons I had why
I should not be tortured. I answered, I did
humbly jnd|sre that I could not be any ways
tried there, lor the order, by which I was sent
down to 8oothNid, was express, that I should
b6 tried for * crimes committed against ttie ao-
veniment in that kingdom ;' and I desired to
know if my lord advocate ha<l ant thinff to
chaifpe me with of that nature. He declared, he
liad not ; but that now I was in Scotland, and if
I had been guilty of contriving^ against his ma-
jesty's yovermnent at Coiuitautinople, I mi^ht
be tried for it. I told them I thought it was
true, but that the crimes I was accused of,
were said to be committed in England, where
his majesty's laws vfete equially in force for
^e security of his fforerninent, a^ they were
in 8eoUaud, which at CoB8tantinO|ile they
were not
But this was over-ruled, and yet this M'as a
notorious atni unjust breach of the law of the
Habeas Corpus a^, which was made expressly
for the iecttrity of the liberty of Scots and
Irish men.
Then they ariced me, if I had anv ftirther to
•offtr against beftig tortured. I told them, that
I did not pretend to any skill in law, bnt that I
fi^ mforrined, that * semiplena nrobatio' was
aeoessary in order to torture, which was not
in my case ; tor lieither the dvfiositions ot* these
at London, nor what was said in my lord Ar-
lifyle's letters, did amount to any such thing,
liiey told nie, presumptions were enough to
warrant torture.
Then they asked me again, if I had any
thing further to say whv I should ncit be
brought to torture. I told them, I had only
an humlile petition to them, that I might meet
with no greater st'verity in my own coniitry,
than the laws of that in which the crimes I
am accused of are said to be committed, do
allow of.
At^er this commnhtng the king's smith was
called in, to brin^ in a new instrument to tor-
ture by tite thumbkins, that had never been
used liwore. For whereas the former was oidy
to screw on two pieces of iron above and belo^v
with fiugiT and thumb, these were made to
turn about the screw with the whole hand.
And under this torture I continued near an
hour and an half. In the mean time the tor-
turing by the boot was tried, bnt the hangman
lH.'ing newly come on, because the former was
in prison for nome crime, he hail no skill, and
therefhre it was put off till the nen day.
I do acknowledge I was mneh afraid 1
should not have been able to go through with
that scene of tortui^ ; and if I had not, I was
miserable, for 1 should have been brought to
speak again<;t every man they had mentioned,
lilt God onlered it Inndly otherwise, and the
next dav I had conditions offered to me afresh.
Scotland : The which letter the deponeat kid
> an inciination to inform Rhephcrd in Abdrareh-
Lane, merchant in London, of; bm before b<
could do it, he wrote to Mr. Sienart above-
Now as to the whole of this mpfeasant
subject, 1 do deehune, that this aflkir is, so
for as I was concerned in k «s to any oon-
suhaUoM, no farther than to dieeeMrae as to
what mijifht be proper to be done for seeurin^
our religion and liberty, from the dangers that
they were tlien in, without any dea^ against
the royal persons of the king and his brother,
or the (jnovernment by monarchy ; and that
some thmg was done among the Soota, as to
the sending down a gentSeman to disooone
upon that head, with some ethers here.
1 shuuM be railty of the moat hoirid in-
justice, if I should accnse any of the worthy
genttemen of my country that were my folio*-
prisonerB, or any of the English ibsscnliBf;
ministers, of having the least knowledge of, «r
concern in tlie abominable assamination of tlie
king or his brother; for I did then, as I do
now, abhor such praetioes, nor can I to this
hour tell really what was in that matter thit
makes such a noise ; for nothing in my fttmimti
depoeitions that are printed, Iwtb siny imfu^
to anv thing of that nature, excml an to what
Mr. FcrgoBson and Mr. Sheptyerd did sajf, for
which tSej ahme are to be anaweraMe; end I
must also say, that Mr. Shepherd did own bis
abhorrenee of such- practwes.
And now, lirother, 1 shall oondade what i
baieto say upon this suliject, with the MM
injustice I met with in beii^ sent to Scomad,
in open violation of the plain law of Habeas
Corpus, which was only designed to make way
for my torture ; and me notorious breidi of
tlie pnlilic faith, as to the conditions thai I had,
by which no person was directly or indtredly
to be mentioned in any trial as to that mailer,
nor any thing in my depositions was to be id-
duced against any {hmtsoo, which i*ondition wm
o[ieiily violated, and this is acknowledged Is
have been so by the late oari of Cromarty aa-
der bis hand, as is to be found among the Re-
cords of Parliament.
1 was indeed earnestly urged to oblige tb«
then king so tar, as to ap|)ear and answer some
questions before the judges whrn they were
set, and that no |>erson should be ronfrontsd
with me. To which I re[ilied, that the saying
any thing btifore judges when sitting, ml^t
bi» of sonic consequence, and through G«l'«
strength I would rather undergo many deaths
than accuse any of these worthy persons.
1 cannot hut alsd a(*f}uaint you, that I think
it was a hardship put upon ine, to print aV
depositions as they stood. Iiecause they wer^
very lame, since simjde answers to the ques-
tions arc only set do\%n, and neither the qa<»-
tion ihatgaVe a lisc to the atiswem, nor tte
just extenuations us to persons and tliiopi
which 1 gave in my answers. Which km
they been pnblislied, it wduld have been '^ — *
from what I said, that there could be do
STATE TRIALS, 36Chablbs II. l684.-/or HighTrtMmi.
[690
, to know from bim, if he mis^bt i\o it ;
r. 9teuart liaTlng' consented, he com inn -
be said letter to 3Ir. Shepherd, wlio
le depoQCDt that he would comrnunicat
wbj that affair should h.ivc l»ecn pro-
I with to much crufrlty and \ioleiice.
bating bad a hberi}' t'rorii the lords of
\ to go abroad, but uas eiijoititHl to wait
be aecrctaries at London , upon which I
me of bur lords, that I was alVaid th»t
hare Tery ill consiwiunces, for if 1
be broa«rht hefore tlic kiii^, 1 wouM say
lie tbiog^s to him in the e\tennatioii of
fair, If nich 1 had said i(» them, wiiich
not justify the nictho«l!i that had U'cii
II pnisecutin<r the nolnjity.
when 1 came to l^nduii, and had waitid
\y \niA Melford and told him this, he
p, the less tlte kiiij; heard of me or saw
Hnuuld be the hotter ; and tliat therefore
bis adricc to iiic to ^o abroad and lire
, and offerctl inc a pass, wliich 1 ac-
and I accordingly went aljroad.
lam, Ckc. * W. Carstairs.
bU Letter sets this excellent person's
id Buft'erinjcii in a due li;^ht, and i am
try that hi: had ucft time and leisure to
s upon the base mankind of hifi deposi-
■d to insert the just extenuatini^ cirouin-
ibe wascareitil to give of every thin|>f;
9 tbese depositions were printed I can-
r, this reTcrend and candid person de-
bem iniserahiy curtailed and maimed ;
Wfmn the nianai^ers have heen sensihic
■Dd therefore ihey have not insert them
Icgisters, but there is a blank ibr tliem
le now to give wliat I meet with in
wdl 'records, with relation to tliLs ex-
lacy person, and I shall I'dcewisc inter-
ne tbiof^. iirom other anthentic docu-
lefbre nte, which will in suiue measure
make up what Ih wanting iu his j»rinted
r. Carstairs is not named In the IKegis-
ConociU alter his coming donn, till
bcr 6,' and ii seems, from August 19th,
lay be bad lien in tlic irooM ; an! now
wdl, acconliog to the cliancciilor's
log in privatu, come tu pass an i\r\ in
I !fediTiint,'the tenor n hereof Ibl-
eal Mr. Wiu.iAM Cadstvik^'s lurtuie,
Edinhmgh, S4r;)t. j, loOl-.
|ipearing that Mv. ^Villiani Carstairs is
Md in the late conKpIrary, and tiicre
pm^ant prosumptions of' his know-
■rtbis atrocious viilany, to the cfTent
ii whole plot may be finown, and the
teMtcated; ami having callrd the suiil
mikaa Carstairs, he would not anstvrr
fine tbereaoeut, alboii it was allowed
llrifoeale, that what ho drclared r»r
It militate against him. The
the contents of it to some persons in £nglan*H
but did at that time name no body, as the depo-
nent ttiinks: sometime thereafter 1^1 r. Shepherd
told the deponent, that he had communic&t
■-■■ ., . ■ -,. , — a — ,— .
* lords of his majesty's privy councd eonsider-
* ing, that thereby he renders himiself most
* suspect, do ordain that Mr. William Carstairs
* l»e (piestioiied in torture this ai\enioon, upon
* thf; questions agrc(*<l upon in the council,
*■ and appoint one of the bailies of Edinburgh
* to h«» present, and the oxecuiioncT.'
Follow the I.NTF.RnocATOKiKs to l>c put to the
said Mr. William Caustauis, whieh w^re
read in counril, and appi-meu of by an
unanimous ^oti*. ^
* 1. Who were the persons, ivhere, and
< upon what occasion, that did first acquaint } ou
* with this conspiracy or association.
* 2. What persons in Scotland or Kn.nfland do
* you know to ha\e been concerned in the said
* conspiracy.
* 3. Who were the great managers, or agi-
* tatorsof this intended insurrection.
* 4. Wiio was to contribute the money to bo
* transmitted to Argyie, to buy arms.
* !}. W here wcreiliey to begin the insnrrec-
* tion, and whom did they look upon as most
* friendly to their cause* m the Kingdom of
* Scotland.
* (i. How long have you been acquaint with
* Mr. rVrgusson, and how o\\ have you hcpii
' in company with him, sir John Monro, Fir
< John Cochran, commissary Monro, Baily of
* JerviswoofI, and the two V.inis of Ccsnock,
' together, and who other Scots or Knglish used
* to me>;t with you.
* 7. What ivas the carriage, or ncce^ion to
* this conspiracy, or any part of it, of B^jIIv of
* Jerviswood, flic two' Cesnocks, commissary
* .Monro, or any other Scotsmen.
* 8. Was tlie- ten thousand pounds, or any
* part of it remitted to Argyie, or was thew any
* arniK hout^flt or bargained for.
* 9. What place in Scotlan<l did Argylo intend
* to land iu, and inak»^ a drsMjent.
* 10. W hilt cornrs|iondeuce did Ai^yle keep
* with any in Scotland.
< 11. What concern in this consniracy
* had the carl of JiOwdun, the lord Stair^ the
* li»rd Melvil, an,d sir John Cochran.
' 1?. At your Inst Ii. 'ing in Holland did you
* not so«; or understand, that Argyie conversed
* or <;s»rr<:sp."iy.ed with Lowdon, Stair, and
* >l<!vil, as lil'.i-wLKC with thf^ English considf
^ n.lurs who had f.»>J to Ho!l:iiu1, pnrtirularly
* with t!ic* lorl Cray, *:ir 'Miomns ArniNtning,
* Mr. Fci-*u*sMi, <ir IMr. V.mo.
* 13. What Kilter-; u ere those u hich Holms
* drpuntis he sluwcil. van fi-»)ui Argyie, and
* what was the conlcnrs anil di-sign ot thi'in.
* 14, What was the c(»ntti!ls of the leltcr
* you carried to Ai-gyle from Holms, by order
' :iiid direction of the duke of MonnK^utli, and
* loitl Hu.s34^1, and what incsspgfi was il >u-J
< carriid to Xv:\\*i from Mouiuouth aiUl Kus-
2Y
C91] STATE TKIALS, 36 Charles 11. iS^^-^Trial of DaiUU 0/ Jamim^oi, f601
I
die C0Dt4^U of the leiter abovr-Ddmed to c»-
lond 8iduey, and tli^ oitJone) DAnvers was
prt«ent'^ uiid told the dcpcment, th*t colond
^dtiey Mr^b averse iVocD tniptu^iag the late
* iel ; Af t]its let(er jou tosiy p^kiticukrly re-
* member, tl beiii^ about a cntjuih before major
* Holms was ukei!.
16* ^Vh'»« ii*r»nnN yf roiisideratloi] were
^y» wb<i. I luajur Holms, hat) pro-
osedtor.ii tbirty thousand pounds^
^ And some other suin^ and at last agreed to re-
* mil ten t bull sand pounds to Argj^e, or some
* sum or o>bcf»
* IG. What njwsnget were those you canie
* 80 otY iipiKi Inuii Jcrriswmid to major Holms
* and Mr. 8bep|ierd, aneut that money to be re-
* aiiited to Arg*yle»
M7. Did you not see Mr* Spence, alias
[ Biitier. uaitiner on Argyle, at your last being
Holland with him.
18. Are vou acquaint with Mr. Lenzienson
3ore of Keottrdcn, wh^rc you was appre-
rli« ii'l^^I it iMr* Cartt^ise^s house, under the
* ! ^van, and if be be concerned in this
* i
• 19. WiiJttdo ymi know of Aaron Smith's
* bt'inj^ sent ilown'to Scotland, and to wliom lie
* Ha!i directed.
•- * 20, What do yon know of any of your
* r< . rf s transactiDns with tjie late
* > , colonel Sidnty^ or with the duke
* ot v^uitnututh.
» '* In the afternoon of thcsamc day, September
6f llie coimcil called and interroj^ted Mr. Car-
•tairs, ^ If he would now answer the queries
* upon oath ingfeuuousty. He still sbiinned so
' to dn, albeit the advocate declartn] what the
* iaid Mr. Carstairs de|^M>ned should not mili-
*|ate or operate against him in any manner
* of way, whereunto the council ajKiontcd. The
* conned called for one of the bailies of £din*
* burgh ; and the executioner with the engines
f of tort are being* present, the lurd chancellor
' coin maud ed the bailie to cause tb& executioner
1 to put him to the torture, by applying- the
* thumb-screw to him, which being done, and
* he liaving fur the space of an hour continued
* in the aj^ony of torture, the screw being by
* epace and space stretched until he appeared
* Dear to faint ; and being stiti ob«tijiate and
* refractary to depone, the lords thought fit to
* «»se Lim of the toriura for that time, but ccr-
* lified him that to motTow at nine of the clockf
* he would be tortured by the boots if he re-
^■lained obstinate.
** Heptember 6." * The lord tTeasur^r-de-
* pule, appointed to confer with Mr. William
•fcaistaini for biiDging him to an ingettoui
* confession, u^n the interrogalories yestenlay
' put to him in tortnre, reports, tliat he was
' content to depone thcreupou, and be inge-
* i»"-- t ■ on the trrius mentioned in a paper
* ' V the lord treasurer -depute. Wh*cU
* 1 :^ read and considered, wafinnani-
* 1 f-d, and an act made tltereupon,
* ' ;'l trt^awiu dcpult' \fm &Utb«ri2id
rarl of Argyle, "
him a msin tmi 1
mily, and inGiinLii i
vernmcnt ; yet Mr.
* to give hi< word of honour t'»
* for perl'ormioi^ *»f the counci I =, j
* articles contitiue^l in the paper
* them, he always |K-Tftiniiiii»r his
* he is onleretl lu the <
* permititrd to i!t|>trakor con
^ particularly My. W^ilhani bpt-nce iii nut to bt
* suffered to sett liim. And a cbinirgroo i« aU
* lowed him in onler to bin cure,*
** All I meet with in tlie eouncil'hoolc^ ftir,
ther upon thefiubjert, is, Mrs. W^illi.u ^
and Carstaire are, Septcmlier i;l, r*
Dunbarton ra.s||c, and dlowe<t ' '
thewalis. And SeptcmlxT ao,
is 0 rde red from D u n barton to N . i 1 1 1 1 1 - i ^ 1 ; , .
and to be at lurffe within the wall* of jt .An*!
immediately afi^r this, upon the ft""i i''' < -
page 5ir, of this volume, Uiefe I
fiinncd to tlie leuf, upon which U
tows.** * Tiic lord Lnndui, se^:
* as com mission ate in the act
^ m the underwritten certi^cate U» the lici
* council, dateti at llamtonn October U ^f"-^>
* the tenor whcretif followa, Whei^eas bis cut-
*jesty*8 liononrable pnvy council aiitbortsd
' me, upon the terms mentioned in thefdngWDg
'act, tobefolHIled by Mr. Carstairs, t^nn*
* misc upon my word of hnr-r- - rocnrf^htia
* the conditions and indi i reia mm-
Mioned ; and these t^re tlu.,. .. ..1 testiftio
* all concerned, that the said Mr. CaiWiin
*■ hath futtilled bis part, b^^ answering upon ctlb
' all questions pro|>on«d to him preccJfiig Ibii
' 4lay> in witness thereof these pr^^ata m
* snbacribed. I>nuM)«oiif»,
' In obedieiice to which met and certiAerie,
* the clerks of council delivered to the !«aid Mr.
* Wm, Cantairs the act of council, of the dati«f
' the sixth of September.*
'^And llien in the rcjftster there fotbwsi
bl ank for two pages ta fobo . W bet her t bis v«l
left to lie fidad up with the deposition of lh%
reverend Mr. Carstairs, and its bising* prioleii
in 90 lame and maimed a imiuier prerettled llf
being filled up, or, atier it was printed tfi a» so*
fair a manner, that they were ashamed to in*
sert in the registers a just copy of his dej^i-
tion, with the circumatances and exteauatiimi
he gave UjMin oath, or what the oceasion wt%
I cannot determine -, but thus it stands iu lU
council- book Sf and 1 fiikd no tnore with reUM
to him.
**> That I may give tlie reader all I have f«r*
ther coQceming with Mr, Carstairs, 1 '
an account given by himifelf in a h
friends at tlie time of his detiositioiiM;,
venting, as he tells thcm» of lying ais|j
. u(»on liiniif^lf, and battsfytng tiicm as
conduct in this matter.
*' Tht^ reader will observe, that the
iu their act of the sixth of September,
fio tml^ a& to mmn Ibo papta- of
i
STATE TRIALS, Z6 Cbai1B« tL 1«»4.— /«r High Treaton. f69l
II
W wtrni to dm mH of Ai^le; but, as fir
Wwphtfrf told lufi]> He ww BuapcclfU open the
— ' of iiig urging so much ; yet afler-
ifrael ta hy tkmr delegate aiid Mr. Carvtain,
mmk lb«y oufht ia jQstictt to have done.
Minis tlnfte tm3iillkm% were eo unanimously
Iffvotm : Mid, us I tiifjU*il b«fur«, tht y record
•uttitrri- of ifhiit (Missed at Im fxaniinaiiou,
ui4)fe oeeemry I insert the con-
iftfius Mr. Csrstairs oM^ined before he ^ould
|itf bio doelaralion upon ooib, no to the inter-
obaye nftin<ed. In his present cir-
sad atler he bo<l gonn thrau&^h
neiwnur- : - • t tthe b«st condi-
*■• po**^^ J he shouhi My
Ibonhld' ! » V ir- rniiilor,
jmotititi iiiihe
•cr»tor> h were
*«o«i b> faith
•Ttlie km li ; availed
onb btCDietf M:» give hi!> deposition.
Ceicim(»s Mr* Carsturs had^ Edinbiirg-h
Giide, 1684, tiDder the Secretary's hand.
- «T '7 ' -erall interroga-
*fc' fieiwixt and the
*lr^ "1 * ' at uuth.
*TW • 11 have hm
^tt^pilf •• 'li ii«i n fTu^>^gnJ for his
* Ml Jw» Ibr! ^ uiid tame.
'^Oib4* *li ' Iwought as witness
torj^ directly f»r
^ luiiued in lus an-
* ilod fbrtfacr» That tlie sotd 5Ir. Williau]
'CnOuiBoluill orrer be inlerrti^tetn torture,
*« auc of ihe aojiie, oonceriiiug^ any tJiiug
'fneadiDi^ th« date of this paper, alter the
*)i|abofeaimti(ined^ except he himself shall
^kddilod OK aoceosory, and that accession to
'bflClor llio dole oti tfiis, or his retniosion/
I ^ *Mmi wbcraoo the coum tl» upon the con-
[taiiiii'i ^ obavenomed, haiti, by their act
' 6t aulh«»rii£eil lue to give my word
*fihmam^ oml snlentu promise, that 60 aooo
^oiMiopreiakeo are fn]fi\h'i\ Uy Mr.
k
MlWydoisioL
tb«
OtiU tirg^cd, that one might | wards he pretiod, withoift the depntienl*f
knowledg^e^ that the deponent beini^ to gr^ «^
Holland, howrerer mfg^ht hare «omc amunii!!*
sioQ lo the earl of Arfry)e; which he having^
maimed, and unfair, as we hai*c seen Mr, Car-
stairs declann^^ and therefore 1 nhall not re-
print them aj^n ; they are in eitTv Iwidv'o
nandt and have been too oflen pri^ ly.
*rlt wai yet a great deal wor«c i 1 vo-
cnte^ to adduce the printed copy as an admrni'^
cle in Jerrismood's trial ; and the reason ho
S'fefi therefor thisi is but mere ju^^gling^, that
ou^h it was capitulate, be (Sir. Car&taim)
shouJd not be adduced as a witness, yet it waa
agreed, the depositions should be puhlisbed. If
the ailvocate mean any agreement amon|gf tho
councU, it is perfect jug^hng- ; if he mean on
agreotoent witli Mr. Corstairs, th»t worthy
persoti, while alive, still disclaimed this t and
we see it is Ihr from being in the condi->
tions, but rather the plain contrary ; for it wao
a poor matter to Mr. Carstairs, not personally
to be adduced a.^ witueos. If his declamtions
emilte*! were to niihtate against others, ho
reckoned he was made a witness \ and this
was ccrtaiidy an indirect making' him a wit-
ness : and it appears most evidently from Mr:
Carstati^'s own letter, that one condiiiun ollereit
him was, *■ That nothiti^^ he said should bo
* brou<rbt directly or indirectly ai^amst any
* man in trial.' And when he was solicited to
apj>ear before the Judges, his answer was, * Ho
* had railier undergo many deaths. i^»at' H*"<^M<i«
* any of those worthy persons.' ^ ^»ii
t he whole, I cannot but suspect that ^; -r-
mwood^s printed Trial, where Mr. €arstatrs*o
depositions are said to be renewed upon oaih. the
22nd of December, in presence of his majesty^s
privy council, as being directly contrary to tli#
second and third conditions granted him. I*
find nothing of it in the council -rt^gisters*** *
'* Many reports were spread, and lying sto*"
riestold, as if Mr. Carstairs should have spokeu
many things to the disadvantage of the noble-
men'and gentlemen about whom he was totof*-'
rugate \ which, with what fell out in Jerns*'
wood's trial, grieved him exceedingly, and ho
wrote a letter lo bis friends about this time,
from which I shall give a few more hinti^,'
passing many things already noticed, and with'
them end my account of this worthy person, ^
• He testihes his ftbhorrence of any design*
* against the king or duke's life ; that all hJo'
* countrymen with whom be spake, were free
* of any design against the king or govem-
* ment, and that he frequently told the lordo
* who came to him, this whole affair upon
* which ho was questioned , amounted to no
* more than talk, without mo mnch as any
* formed destgii, and even talking was much
* broke off, before the discovery* of tlie plot.
* He shewed them how unwilling h« was lo
* bring any man to trouble, and tiiat it c<»nld
' not but hv very grievous to him, to be forced
* tosfieal( of Any who had trusted him as a
* friend, eirprcially whan the buaiuoftO BCfor
Carstairs,
I 'lilpU ildtftr bioj ll's act in those
*1lBigs, aod lu a n tmie therealler,
1 *»l mociiiog a nuiDili* hio miifeotyV par-
I* j(iS in ampk fbrtu, above expreot : there-
> my prooiiise, give my faith to Mr.
, iu mannor above exprest, time and
talore said.^
** Hio iH^itiona, without his knowledge,
io4lahiogn«f, aodocaroe agreeable to these
nKliliosiv wcfo^ tn a few hoiirs aj^er they
9m% iaodt» pcioted by the managers, and ci y •
P| hi the oifovta of Edinburgh. Mr Lar^
isiii^Iar, and such unlkir
1 lO his mind, otherwise
te owild hare ttlon core to prevent it, if cou-
iMiiona wouli hofe boustd thow
those people^ as in-
Dopoaitiooo art biao,
695] STATE TUHLSbSfi Oh AKLB$ II. l€B4^niglafamUiB&fJltnUuH>Qd, [AM
informed the deponent of, tbe deponent told buiigrh, Ma matter of the gmteit teportaaci.
liltn, that he himself wonld nut be coDoerned; "^
but if they would send anotlier, be woukl intro-
duce liiiii ; but notliing' of this was done : upon
%rliii*h lite deponent went over, without auy
couunission from any body, to Holland, never
UMCting tvith Jameii 8teuart above-named :
he was introduced to the earl of Argvle, with
whom hii had ncicr before conveni^, and did
there di.s?t>urso what hail past betwixt Mr.
^ihcpberd and him ; and [mriiculurly al»out re-
luittiu&r.oi' itintiey to the 8aid earlfrom Bnif-
\'Mu\ ; of which ttiesaid Mr. Steuart had written
to the d(.'(>aneut, riimely, oi' :>u,0</0 |K>uuds
Cterlin^;; und uf thoTaiMiifr of ILKK) horse and
drj;;(N»iiS ; anil the hccurin^ thu castle oi' Kdin-
* cau:c to any hearing:, or to that hei<;ht as to
*■ bs anj' way prejudicial to the npovrrmneut.
* As to the objection made a;ruinst him,
' Tiiat he had hccu sui particular in liin <:on-
* fosbions, he savi^, that c<»uld not be cscn|>ed,
' iiis intorro«:i^trries were st> [inrticular, ami he
* upon iKilh.*' We lia\e bciore noticed, how
his extenuations wcreoniitled ; he ailds, ^ That
*• he had declared as t» my lord M civil, his
* {;roat aversion to be any way concerned in
* that alfair ; atid so fair \ias he, that he ac-
* knowlcfl^d he himsell'was the person, who,
* with difiiculty, prevailed with my Ion' to
* come to tlie meetinj;^. As to old Cesnoc ae
* said, he was a man so cautious, and . so
* few words, they knew not what to make of
' him , that his' son was much upon the re-
* acne ; that he had nothinf^ to say of the
< lord Stair, and did imt think he had any know-
« ledffe of their nieeiinvfs, and that he had never
* spuke with lir.ii u|ion that head : he com-
* memled Mr. tStiiurt much for his peaceable
* temper, an<l acknowledged liis corres[K)nd-
' ence with him.
* That he had never conversed with the duke
* of >loanKmth, and what was in Holms*g de-
' claratiun was a mistake ; and, for any Xhiufr
* he knew, the duke rather discourageil as en-
* courai;:e<l the alfair ; that Mr. Carstairs was
* much a straii£^^:r to the methods in Scotland,
* as to this business, and could t;ive no account
' of any uiinisiers en^fred in it. He com-
* mended Lanj^sliaw as a persou very much
* tor intKlfrate ineasmtM, and addressmg the
' king- aiieiit g;rievaneea. All this aiul iuuch
* more, hesays, hcKigniticiltothe lords of the
* cunui'.ittee present.'
' In tliu s'iine letter he resyrelN, that hisdc-
* iMsitiors were read in the enujinjil court,
* and says, That be was so fiir Iroiii knowin;^
* of it, that uptm heuriuir of it lie ^\cnt ami
* waited iifKiu some ot'tlie lonls fit'eu'nicil, and
* represented his deepcoiin ru (*n ilmtrtcefiunt,
*• and cduinlaiued of ii cs a brt-ijch f>f tli* ir con-
^ ditiuns vu'Ji hlni ; and tliiit Vw ehunccHor
* iiijxni reaiiiniT tht ei.i''iitiMu>i 4;\vned h'-t'on.-
' the iiva^urer and i.t!:* vs of ih*^ r:iiun>LH(irs,
< tiiai wliai was done, was indteda l»rcacli with
* him, an inadverten'v. thon(r;i uitliont any
' design, in the udxjcnte ; that the advocate
The method of duinn^ tliis was prapoaod by tha
deiionput, to be one hour, or then^, after tfaa
refietinur of the |ruards: but tbe earl did not
relish Um pn>|)osition, as danjccroua : and that
tlie castles would fall of conseqnenoe, after the
work abroad was done. Jameii Kteoart iru of
tbe de|Ninent*s opinion for seising the caitle,
because it would secure £dlnburf|rh, tiie ma*
^azines and arm« ; as to the 1000 hone and
dra<^uu]is, my lord Ar^f} le was of opinion, that
without them nnthiny; was to be done ; aoil if
that numlier were niiscd in England to the aid
earl, he would come into (Scotland with them;
and that tliere bein^ so tew (lorse and dragaoei
to meet them, he ju^lgcd he migrht get thi
« himself, uhcn Mr. < arktairs waited on hiia,
* declared he Has indisposid when the ooundl
< transactcMl that ati'air, and did not fully know
Mhem. \Vhrrcu|>on Mr. Caratairs gpve faia
< a co[)y of thc:ii, siifnifving to bis lonkfais,
* that lie cxi>e4'te<l the iaiih ^iven him sliouU
< have Ih( II kcfit, and he ho|M>d any thinjf ho
' had coni<>sed slimitd never be heard of any
< more in publi«', against any man: and ttfe
* rather,
* That when he was called from BMog
*■ eastlr iK-fore the lonls, tliey used many ar-
* t;umcnts with him, to give a ;rciieral accoonl
' before tbe jusiico-court of the siihflianei! nf
« his confessions to them ; ytl be si^fied bii
* utter a\ersion to it, as what would he a wit-
* nessinfi^ as^ainst all whom ho mentioned, iod
< the lords were pleased to tell him, thev woaM
« rather die than break conditions with hia ;
*• which he de|>cudcd U|Km.
* Those thiu||^ Mr. Carstairs desires in faia
* letter, may boused for the i^roatest advanUpe
* of all ci>ncpm*Kl ; ami says, it was dccland
* by the lonls, and believwl by him, that vhit
* he discovered was for their private satiifre-
' tion, and not at all to militate a^inst any ;
' and adds, the uuture of the thinf^ declares lO
» much, sincetluMnterrotjatciries propounded is
* him were such as could not well be propowd
* in a rriminal court, and answered by him in
< a way he c(»uld not well liave answered tbon
< as a witness, and in a way of proof, suid that
* the lords still assured him they would kcfp
* then' promise to an acre.'
** Thus much I thouifht nrccsaary tor tfce
just %iiidf cation «f the nieinor\' of onetoifh«Mn
the Clnirch of ScirtUiid are umWr uldiipitioaSi
whose character is so universally kuowo, and
sa\oury lor e\orv j^ood tliin^« that I aayno
more* of him. 'f\w people of tlii» time knrw
his character, and therefore they weresobaid
upon him vvhen in their clutches ; and, fcf
hreiich of eomlition, adduce what lie had aaid
ill .If-rviswoiHps pn»eess, as wliat they iioa-
jf ined woulil he of irreat weii; lit, coiiiini; fmia
Mr. Carsiairs. This is all the reason I baft
fur insist i lie; so Iniio; in settin«f tiiis ^n'st man's
siiH'enii:^ in their due li^t, and come aov
I'Tuard to those of his dear ft-wnd and leliov-
bufier».'i-.**
flTATB TRIALS, $6 Charles II. l694.-^«r High Treoian.
[698
ilhoul tronWey having tach a stand-
SBrtharfriaidstoreiKlesvoiisto; and
id nid lie eould shew the de|ionent
uentphioeB tor laQdin:;, if he under-
, as the depoDent remembers, where
tmld attend. The deponent remem-
bt: naiHes of the places. The depo •
e to the lord Stairs, but cannot be
at he named the aOair to him, but
shy : but the earl of Aiyy le told him,
t Stairs mig^t be gained to them ; and
«rl of LowUoun being a man of good
d disobliged, would have great in-
pon the country, and recommended
ept to nugur Holms, with whwn the
liad some acquaintance before, and
ht over a latter from him to the earl
; but the deponent had not then com-
I anv thing to the said Holms. James
id down a wuy of correspondence by
ad false names, and sent tnem over to
d the deponent, tor their use (which
uid names are now in the hands of
ty*s officers, as the deponent sup-
d did desire the deponent earnestly
e Che 30,000/. sterling above-named
ty in Ens^land, and did not prO]>ose
for SLU the ear) told the deponent, he
cularly calculated the cxpence for
munition, <&c. But James Stcuart
if some less could be had, the carl
lent hinrweH; if better might not be;
li always s:4id, that there was nothing
i without I he body of hoi<se and dra-
ve- mentioned. f>urin$r the time of
ent his nhrHfp in Holland, though he
ftl leiters from Khnphard, \ct thrre
Btisfac'tory act cunt, till soiiu- time
depouft'ut |iarted from the earl of Ar-
was niukinf^ for a shin at liotlcnjain,
rt hiniSL'lf to England, J an if s Stcuart
im that there was hopes oft he money.
day after the deponent came to Knij-
net with sir John (-oehran, who, witli
r Monro, ainl Jervis\«ootl, was at
Bfbre he came over ; and deimns, that
I n«it the accnnnt of lh(ir ^onli^<,^
R fur the perfecting the transaction
nlina: and having aefiiiainted sir John
vith the imrl's demands of ihe 30,000
ierling, And ilie 1000 horse nw\ dm- \ desire their friiindH to hinder the country from
John carried him to the lurd l^isscl, I rising or takhi'^ rash i-esofutions upon the ae-
the de|M>ueut proiH>sbd tlie niViiir ; hut i count of the council, till they should see how
ihKolute«itMn*^iT to the disponent, had i mutters went in England. *The saiil Martin
Irom him at that time ; but af'ter'.^ arils j did go at the chargi*s of the gentlemen of the
et him nrcntieiitiillv at i\1r.She>diard*s ■ minting, and was directed to the laird of Pol-
wart ami Torwo(»d!ie, who sent liat-k word that
it would not l»c found so easy a mattiT to ^,:t
the gentry of hu^jtland to connn*. Hut af-
terwards ill a Ifctter to eommiKsar ^loiiro. l*o|
wart wrote that the cou'itry was readic rin umi-
cur than they had inui^^ineil, or snn.eihin'^ to
that purpose. The dtpon'-nt, us nhtui s;uil.
having hniught t)vcr a k»*v from Ihdi-iid, t*>
serve himself and majiM- Holms: lie remoni-
once in, they would soon be brought to more ;
but as for the 1000 horse ami dragoons he
could say nothing at the present : for that be-
hoved to be concerted u|K>n the borders. The
de)K)nent made the same proposal to Mr. Fer-
guson, who was much concerned in thu affair,
and jealous for the promoving of it. Thi«
Mr. Ferguson had in October, or Npvcmlter
before, os the deponent remembers, in a con-
versation with the deponent in Chca[)side, or
the street somewhere thereabout, said, I'hat
for the saving of innocent blood, it would be
necenary to cut off a few, insinuatiug the king
and the duke : but cannot be pctsitive whether
he named them or. not. To which the depo-
nent said, That's work for our wild |»eople in
Scotland, my conscience does not ber\e me for
such things; afler which the dc|>oncnt had
never any particular discourse with Ferguson
as to that matter ; but as to the other aflair,
Feigtison told the deponent that he was doing
what he could to get it effectuate, as particu-
larly that he spoke to one major Wildman,
who is not of toe deponent his acquaintance.
Ferguson blamed always Sidney as driving de-
signs of his own. The deponent met twice or
thrice m'hU the lord Melvil, sir John Cochran,
Jcrviswood, commissar Monn*, the two Cess-
nocks, ^rorjtgomery of Landshaw, and oue Mr.
Veitch, where they discoursed of mone^ to be
sent to Arg) le, in order to the carrying on the
affair ; nnd though he cannot lie positive the
affair u-as named, yet it was understood by
himself, an«l, as he conceives, hy all present, to
be tor rising in arms for .XHitityiiig the govern-
ment. ( lommissar Slonro, lord Melvil, and the
tuo (yiisstim-ks, wore against meiUlling with
the KnglLsh, because they judgetl tht>m men
that would talk, and would not do, but were
more inclined to do something by themselves,
if it could he done. Tiie lord Melvil thought
every thing hazardous, and then'fore the dc-
p«»nent cannot ^ay he was positive in any thing;
hut was most inclined to have the duke of
Monmouth to head them in Scotland, of which
no particular lueihcMt was laid down. Jcrvis-
wood, the dcponinit, and .^Ir. Veitch, were for
uking money at one of these meetings. It
uas resoiveu, that Mr. ^Isrtin, late clerk to the
justiee-cuurt, should l>e sent to Scotland, to
ethe loni Jtussel had eome to speali
iril alKiut the money ahov< -n;mirtl,as
bani told the depunr'nt : Tbi- deponent
ley were done KiK'aking) desired to
tekird Kussel, whieh the lord Kussf I
IKvng reiterate the former propositirm
8/. iterling, an<l the lOOO horse and
, Ik the lord Huss(>l t<dd the drponent,
ldllol.ect so much ralseil at the time ;
cykaiT 10,000 pounds lo hrgin, that
■w people in; and when they were
hers not that ever he had an exati e^i'y '*' »«
but that sometimes the oii«, souiH»ii»''^ '"*'
699] STATE ntlAU^MCsAitls If. l6S4,— TVU^JMBIr^JlEfiinm^ (70t
»p^ hf ftnd 10 it chmoed to be in lus
dy when % letter fiftrm the eaH of Arg^le
n^ to major Holms, intiniAtiDgt tiiat b«
■miM imn with the duke of 3!i>Dmoutbf and
f m«t8ur<«» 01* obey his dtrt^tions.
.1 I ^ dtch thought fit to communicate to
r duke of MoTimouth, and for tlie under-
andtog of it wia brought to the deponent,
jid be (fave the key to Mr. Vdtch, who, is
[ihe deponeut wasintonned, fra« to give it and
]li(! letter to Mr. Ferguson, and he to shew it
[to tlie duke of Moamouth ; but what was done
~ I it the dcjjoiient knows not. The dep<»Deut
I the flesi^n of killing the king and iluke,
[ Mr. Shepherd, who tokl the deponetit
ome were full U(H)t) it. The deponent heard
[ Aarou 8roith was sent hy lliose in Eng^
J, to call sir John Cochran i on the account
' Carolina ; hut that be do<r» not know Aaron
nith, nor any more of that matter, not )>eing
oncemed in it. Shepherd namod young^
faruUien frcquetttly as couoerncd in these
uatlerii.
8l||p]cd at Eilinhur^h-ca«tle« Sept. H^
16a4» and renewed the J8th of the
tame nianth.
Willi 4M Carstarm,
I'cKTJi, CancclL I. P. D.
f^nmni^Roii Cjurru, Sept. 18, 1684-
Blr WUiiam Carttarrs l>elngf a^n examined
^^ ~fv% to bii former de|MMiiliou, m all the parts
, aiKl depones be knows of no correspond
? between ScoUaiid and England, except by
Rflartin l>efore named; for those geotlemrn, to
rhoai he was sent, were left to follow their
own in<Hli<Kl»<t Veih'h sometimes, as the de-
|Hincnt renii'uibers, stayed sometimes at Ni-
oolMin^ S<nbk^r*8 house at Ijondon-Wall ; «ome-
lirm« vutli one widow HanlrasUc in Moor-
ehfSt The dep>nent did eominuuicati.' the
cNign on foot to doi'tor Owen« Mr. Oritiilf and
^ Mr. Medi% al Hl€mn y, who all concurred iu
tliL' pruniutin^ ot U,a(id h ere di'^irotis it filiould
take cflict ; and to one Mr. Ficth in the Tom-
pie, ontmfieltar at Uw, who s»id thu( he would
ai*e what he could do in reference to the money ;
Kut theft having gone a report, tliat there wa^^
no ifionoy to l*c rtised* he did nothing hi it ;
ttor does the dcponrnt think him any more
COftoemed in the affair. Nelthorp frequently
sp4)ke to tlio de|»oncnt of the money to he fseot
to Arij^yle, whet tier ii was got or not ; hut the
lUpODent used no freetlom with him in the
tSlir. Goodenou^h did insinuate once, that
the lords were not indined to the thing, and
that before, they wt>idd see what they could do
in tlK cUy, Tiie de^Kineut saw >lr/F<Tcuiion
and Mr. fliimsey lurking, alter the plot broke
Ayt, liefora the prodamatiou, having gone to
Ftrgnsoo, in the hack of Bisbopagala street, at
tome new buildiiigi whither he was directed by
Jer?]xwood» who was destroits to know bow
thing* weot. Riiinaey was not of the de|io-
tMol bis aequaintaaee before, but they knew as
htllc of the matter as the deponent. This is
wbst the deponent rerur tubers ; and If soy thing
come to his menoory , !>• M to deltt er it in betntxt
the first of October. And this is ife Inub, m
be shall answer lo God* %Villlmi CaAirytis,
p£]tTii,CaiH3dL tP.
At £DC«Btnio», Dec 22, 16B^
These foregoiiig 0epaiitioiia, sabserihed
Mr. William Car5sre«, deponesvt, and bj
lord chancellor, were acknowledged on «sSb hf
the said Mr, William Castares, to behistrut
depositions ; and thai Uie aubouriplioas wsn
his, tD presence of us undersuhsertbeni^
WlOJAH CASTIin.
Davu) Falconer, Perth, CancelL
G£oaoE JILicKENsrs* QuEE!«j»auutv.
AxtlOL.
His ihaiesty'fi Advocat for farlUcr jpfobatioa
addooes tne Examinations of Mr, 8liepbari
taken before sir Leolin Jenkin&, serfeiarr #f
state for England, with the Information or Ik*
hosition of Mr. Zachary Bourn » relating to thr
Plot, Hipied by hmi and secretary Jettluos df
which Depositions the tenors follow :
The E\A5II NATION of THOMAS SHE?-
HARD of London, Merchant, tite
upon oath More the Utglit HonounUs
sir leolin JenkjOM knight, his mi^iaA^^i
principal secretary of state^ iJie S3d itt|
of December, i68J.
The deponent saith* That r«-.^iw^n toll
hitti, on or about the month ' t, thst
an insurrection was intendi«i i^-
land and in Scotland ; and Lli • itkaj^
that atfait' betwixt the two natu i^aiibf,
Mr* Monro, sir John Cochran, S4i Ijughsid
sir George Campbells, with some others (wbaw
names this dqKment heard not) were ceoM It
Lcmdon.
That the deponent had some acquaintttcs
with Mr. Bail lie, Mr. Monro, and sir Joka
1-ochran, and noue at all withi»ir Htighiadi^
George Campbells; that Mr. Baillie taldit
deponent, that the earl of Ai^yle deiMttM
3U,000/. of the English to capcitathioi tobqn
the business effectually inScotlatid ami tbatbt
the said BaHlte hkewise told xh : , ikat
havini? concerted things hIiIi KiumI,
and otliers, be the said Bim in loipota-
bllily of raising tliat s\un vb the ffid
Baiflie had acquainted the depou^iit, tlist Ihif
were certainly promi&ed 10,000/,, which tuns
was agreed to be paid into the desouMt'l
bauds, in order to be remitted into HoUiBili
for the prodditig of arms; and that theflid
Baillie tohl the deponent at divers ttnies, ibK
the said sum, or at least ooe half of it, wiHiMte
{laid such a day, and socih a day ; and some-
times asked tlie deDonent* if he bad reeetfrf
any part of the aaia moiiey ; to which the ^
pooeot replied, that be had not, and that baths
deponent scarce thought any would he paid*
And the deponeot also saiih, that hafiffC
had some Ittile conyosatioa with sir 4«ks
Coehnm, he reoMiiibots wdl, that both »
them did somstimaa taiacni the delays ift f»l
STATE TRIALS, 5« Cii a wrs IL \6U.-^/vr High T\rtatm. [TOt '
the monej ; and taid Uiat alttjaii|i:h | covery ; ami thej must he enetiatcs to fltoc^
Hi
but
ti*e
lie
Mug askctL t.^ ' \\Aim
was lueanl h^ i
tit htni, thV
5S, an m&ur*
SiAcriiiif an*^ Tii omas Sh &rii arii*
Jurul^ c^omm L.JcsiiiHs.
?on^M « f*
/*' n, BOUUN,
1 I M m cMith, the
Any r. *^^....,„t., . .,o^ belore Uie
rliaiiour^t«2 Mr. &NX'ret«ry JeiikiDS.
' ' ' III, That
fa, with
iuin s in the
[_' ' 'kritnouth^and
■t r W the said
■Stl ^roisnt!Xtto
p ^ didstt
h ihesaid
p neb tiuKf litis ck«|>tm€fit be-
HtT^iy FTT ptvjiariiig^ the in-
■ tl(?tiontmt has the
^ much Qs the said
w him the defio-
r he said Ferg-tison
uj» staifflof «ottic
«iid Ferqtujon j
L». - t....»....* *sat
ihp. buying
nde*J b 8(mH-
he dn^ntiput TOW Mr. William Car-
ol' I he said
i tfii5!oti never
dijjc^niiHci held by him
1(5*; and fmthcr ihk
Boim?«.
if^a Adrocat likcwiiie produced se*
1 |Hi tiers, to inovc thut thoie
»iM^ hy tir Ia'oIiii Jenkins.
«i i i^uo jirnducfd the
ng Mr. Hilliam
w t*<nnuii Tnutor^ 4iDd the act of
Dl wbcrebj the furiauUure h ratified.
fg SPEECH
TO
UijaAy,
■cy affainiit hh ma-
^ oiiinient« so
^anl reason
uLuiWttVt Uii«r« tii^ dU*
IS vrcll as tn the kine* ^^ho dt> not acknow
tL Besida tliat the councib of uH tha
niitums tbou^'^ht the jmtof siiHiiuenl liir
J I general tbanki>givm^ tbmn^h all
i; - as, and that the ju(lj;^**s of England
Ui the same ^troo;^ covMi^h to inltr fiir-
II e of life and estate againat some of all
lAiiks there ; you have a discovery made here
from the late earl of Argyle^sown letters, and
I he confession of bis ourn emissaries, the two
surest jnoofs that law^ evtrr invented, or the na-
ture of human affairs can allow ; and 1 am thii
day to adil to all thist ^ new set of i>roofa in tha
process that I now lead against this pannal^
irom the eonfessions of noblemen and gentle^
men, who have be^n cng^aged in this wicked
conspiracy : and who, from a sense of their
g^ilt, ai*e content trebly to depose against iUeir
nearest reliitioD andtlieir mo»t intimate friend ;
in which havin«;thus cleared to you^ that ther^
was really such a conspiracy, I shall, in the
next place, proceed to prove this |>annal's ac-
cession to it
It cannot be imagined, that we would wil-
lingly luvolye our countrymen in it, without
a conviction fitrouger than our kindness t(i
Scotland, nor did his majesty's servants accuse
this pannal, without tlie op m ion of the ablest
lawyers of the kingdom, who did with Iheto
concur to tliink, that there was not the least
occasion of <louhtinor left to the most indifferent
inqaeist of his tr"'!*-! i*ft^ ^^^Y ^^^ seriously
and with reflection rt^d over and |)OJidered the
probation now laid belbre you.
The person accused of accession to ibis
cry me, is the ringleader of all those who in
thjS'kiugdom concurred with the English con*
spirators, as you may see by the testimonies
of all whohave depo^ ; and it was indeed fit
and Just to begin with the most g^uiUy ; so thai
if he be not convicted, Uiere shouM no man b«
fKmished for this conspiracy ; all the uoiac wd
irive heard of it, is but a cheat, the kin^s
jfu' *'- '- •' t been murderers, all the witnesses
I I k itaves, and such as died for it, have
Tin I charged on the pannal is not
an ar« i * ape, nor is it proved by wit-
nesses, who can be suspected of unkind tae» to
bis person, or bis cause ; for it is a long tract
of a continued deaigfu, gone about with th«
gClneate^t dcUlKtatiou and cohcern imaginable,
and proved by ht» nearest relations, and per^ns
so deeply enga^oil in that can*e, for which ha
jnilfcii, tnnt they v,crv content with htui (i» v (fu-
ture their lives and fortunes in that cjuarreK
Hf is not accused of a cry me tliat ctin amount
only to a sini^te murder, though thai he n
dreadful cryiue, but a nb*!'" -i •* i-rh wn-s t«
draw u|M)ni u<t a civil \m\i\ i of mur*
d»rs in v%li!rh luuiilr* ils <•< H erC t4l
I. !,■,.: ^ 'J • •■ in, und to
!■* . . mJ .. II Mriri.;i_, in whir.U
one of tii4 wan to ktU his lacrrd
majesty^ hu I brother : andon« of the
cUief witue^Mii, wkicii 1 hare led t^ainit htm.
70SJ STATE TRIALS, a6 Chakles H. iG^l^Trial a/B^kaf^
tt ilotini, which DotirQ coofetM^ that be niw to
kiH i)if kiti;;. iiw\ who ooahmm the ptmiat tftt
u^ Kifvcrttl ni^lits Willi Ft^ririisun, t\it olher r^u-
tnvLT of the kmg''i iiiar3«ir; ind so fttimtfiar
h« with him» that Bourn depones, thai the
iid {iiiitn;il htttl been with Fcr^^won ut the
drftWiiiif of ihi? rnaiijteiilo» ii wan irot
cmly tu bi? no actnr, hutta !. iurof that
liofi'id villainy; aiid i! :oiiiii d<?p(»neft,
limt FciifiiKOD (tfic tu that c!Me)
i«K>k«?<t mMin him a» Hm- kh* i num, r»e\t tt» Ar*
gjl». Hut h^eBU9e no inuti b nre^ume^t to ^o
ijte inch » height, witlioiit preTioiiji inclination
^^d fnotiTct, I fthftllf to «?c»nvint:e you that tji»
Rttti wiw f t»fy c*p*bk' of aU thftt wm li-
I si^timt him, rciiiemhrr you, that he is
tm^mw iifiil ♦iyn-iu-liiw to the late Uuristotin,
bn*d up in hiA tkiui1y« and under his tutcry.
Aboui the time of tiifl tilot it was uiideujiibiy
known, and ii now mimetenliy prore*) by two
ppr*ent HHm'Hsei* the earl of Tmmii and eom*
minar Monro, that he thought hinjaelfdes-
ii«imte» kiiowii)$r htmsetf to he cruilty of Irvn^oti
ty Blackwo^id'K ciuie ; and tm it ii preHmnable,
tml A man that is (fuiHy of one point of trea-
■M^ will ivM ' ' - roiher. so when a man is
diipaiate ^ , and fortune, he is cafi^
Ml ot' any ili.,^. 4 U was likewise aiitmatotl to
amiroit thit eryme by thr infeiti^ nee he had
ito tbort MtstH a plot Iti £uglAod, carried on by
~l of Ml ffetl pifU, Ibitune, and inflaence^
Vv lb« too proMile bo|N^, that they would
fl Hm weatern iliyrea to join with them
bectOM H* the eommon guilt in which
Hiey had cniiA^fiHl thetn^lTes, by iheir !ate ex-
"niya^iuucics, they nraile an aceonnt of an
of twisitj' tboimiid moo; and by
■rli't dopotithm^ tbat thmt gcotleineu
he «eocuT«« of tbe Soutbcm ahyres ;
J 4m to prove to you a c^me, which
I Itietf fo probable and ukh>Y, that it should
Itttfe prdioiiofi, though ) hate adduced
yeor Oonvicttoo suffieictii evidences, albeit
I crymf were in it>rlf rvs-y unliktey.
"^nvitiis. which I hape 1 ha*c proved,
1 ^ iswDod the ^lannal trausactod
r ui» ir bic eftrt of Ar^yle, a ded&red
t#. Th:it he dfipiod to vmbe a re-
S. *rbat he iQlrroQiniiiaiimt with the
of Aii5>'le and Mr. Veitch, dedarvd
vti, 4 I'hit hf wan ptesent where rC urns
WmiU
t r i^te thculd bare money
fram
\ aBttstmoee from Soot-
b- '
in sdiooM ^ and
1
nl the » 1 all
■■♦ tepMlTTlXlf^ It l^ suj^
*
•1 an? ooooftbejn.
»-^^^«yiy»f
1
a^
JoKzi CMins
a-
^tbooffb
h
tWedtl
¥
f.re*
i*
tftt?
' tliiM WIS tbe Caaeif Pclertii
paonal^ who aoitg^bt tliirty*
aterliniti to buy bim arma/i^ ymufe bia'f
cotmtry ?
I'hat /erviawood waa desigiaing to camr ooi
re beltioii^ or at Itmkt wus aeec9Miry« or (aa «
law tciTOs it) was art and part tbeTcc< k '
pmfrti ; but that in th«» (•*ceult and
crimr, wbicli usca not to he proied by <
witnewet, I may K'li '
of tbe probtkLioti, \
Cblill, liao«^ upon «i(ik arxMrirr
pleaaod to considcT, tliat, }. it is |iTove<1 thotj
deaired a blind commission to
not to roauiiifti the aiiaiis* of tli. mi
panv, as he confess. I i.ni fi, j r.rjds
of t^lii^Hand to do ^ .fhrf,
because tlity did c \u;i
what he wo'ukl ha\<
de%Hy, because he i
wu» pmliahle, ihtti a tU^ kiog >v
put to it by the parliameiit of 1
would coiihettt to excliKi' jm i*
successions here ia not t ■ ^m ir/u
si«jn (thouj^h a desigii be sartu . i ^ ui n i mi
hut bi2i*e ui'tr kfipre«6 acU uJ it- s ^/ t ^ ',
vix, Tlie treating with the earl -i T ^ ^> i i
tliis design, tbe aettlingacorrv | u Im. < ^
him for tbe prooeouUon of it. i ' •
letters from Loudoii to himc ^'
tbe sending dowo ftlr* Martin t ....... ^l, i H)
a general riuug. As he designed to pub oa
tbe English, so be priMeculCia cIomIv Oip^
sign upon ail occaaiooa* On tbe ttmk be imk
plains ounningly aod bitterly, tbol our tl^
laws, and Hberlies, and tiie ProtestiUft reliij^m.
were to danger^ tbe style ami method m aU
such as dofi^ to rebel % aiter b'-
Loodoo, lie ifiugaget Ibo oonspirat
assist tbe kteem-l of Argyte, a deciucti iruuf,
with moaey to buy arui» ; tbis wa« tndtai ^
\n\s\i the English to do tbe ifio«A
thmgs by the inosl daog«roiis iikftB, j
niii&t dangi;roiu iiietbo£. H^ i
r $tri«4 correayofidatoe with Fet^^aooo 1
triier, with Sbepbaid tbe tbewiycr^
stores tbe cbaptaia of tbe oooa|iitBOfy.
Aluandir Monro, aitotb^ fireBiiil wiMBk
proves tbat be Mvocd witb bim tlmi ll w
necessary to gifc JunW money rx|ire«if it
carry io|f' on tbe rebellion ; ancl tbalcbtyM
meet at JcrriinvoodN cbaniSer wbere tfik **>
Spoke o4; 4nd frocn vrbidi Mr. Hdhrrt Hndi
was sent to tlieir ftieuds its Se<it!o9i4f to hat/w
wbatthey would do | axid lb«o^ tbe db
cautioo wa% (bal tbey sent bin t» pMeift ikPi
aense, not to aec tlMt tbo daigii wi»t« W^
tbem to rdsiion, md fey |vwr«l ooty ikaf
doiinr toy tbiag m Vbio HbftllaM. daipii ^
e*Hy and mrti«# laoovreaM b<vr, i3f i
wrf» I '
SiMi w«s|
wbo I
MufcoTi
aoboji
|tiooD ib< 0>*^|
f aaa ooori|ff« NwmecisRi iwrr, mi b^
» reodf ia Eafknd. Fc^ 1. Tbis oam^
WHS men bin » a fiknr> lod b| a tM^
I bod tan tbeB»rl««i tttnmtt mamm^^
treaiongi
tBtbse«H«f .1-
JB5J
STATE TRIALS, 36 Cmarirs !f. r6S4.-^of Hi^K Treason. 170G
fMfv ireiting liow inauy men cmiM
It MMtiD WM 9ent to bimler rtsh re-
tiU llMnr MW lioMT mtitttrs went ia
% Mid im r«tum t6 tU«*ir ihiiibsi&sy
lli«t it would HOC iMi an e^ny ni&Ucr to
f« Ikv fttttry «f SomJund Uy concur, but af-
iBVHiili kmuer bufms of' ilimr nating y^ as gir«i]^
vbirii cvtild pAl lMvete«o» if tlti^ true com-
HiMM li»d M>t t>i»iiv ta raUc Hcolbad. 4^
TlMlfirJolii) C4)dmyi umdc- a su<?cdi tg tliat
pflf|MMC, ■« rifiDSigly pr«Yvedf unil that Jervis-
f«oi t^tkm 19 lli# mme purpose, is proved by
^Wfmmmy conacqiieooe ; tor wnce its proi^tMi^
^ hmmpikit^mi tbal liedid not -i -^ ..^. . -
k, JA mum pecajMiily fuUow tb;u
iM^Qi .trndrsti^i. ue ii't>nk utU'r so
tuyatime* and j: ^ iiint fcnse to thitik,
^flt Jor^ifwood, whu tii private presnetl the
mmtmt tnu^H rtpon counn'tsrxnr Monro, and
«W •«» ci le, Q,ud
•Uii Mr. re<l, was
itpcno* Mrbu wa:» tu W btui iur the artus,
MM fivt liasuRdf have been tbe mo&t tbrvvard
iw ia llttti ilciiifii, Hut above cdl * cjcitus acta
pi^' ills couuammur (^vbo btitii; a nitre
a, ifiif>t not liayr proposed RTi- *' -'Vooi
f IXM^ a ineon person, i~ oe,
4i^9Jb»4;arl (ifTarr^ndt^pOfei.v ,, say
tMHioi what irai hi hiJi paper) does exprc^^*
if Imn*! til at he canio frinn Jts-VMrwood and
aif» ; ttfid la the lUdentiK with him, a rdiel-
iMtvactuftilv formed, and it ia resrdved, they
^^mMmim» Atm king'a offioens of state, ^^
ttv«^ ani Ibfoea, and lluit they ihould join
H^ lie late cat I «f Argyle, and put their own
iii^iti A oHidition t» join with these forces,
•m were tocotn' r mj^ and they
pit I ia|r«, a<id uses only to
ta^seta ftctiaal v^ar ; &u here ts treaaoa ciear-
l^pnted. by tieo preaanl wiloeaMiii fipom tlie
bidalgv lo ita laat penfoGti<
Kv muk tt bt ol^Mled, i
that tltev ai« not
, but t€*tti ii Html, net Upon
%x>t tu neitr es, wit-
tinic upon diffcrn lo prove,
I the iradtt lead to the tatne «ud ; as for in-
aais, if oiife i» ituem ahoiild dopoee, tJiat tliey
nv a tMitot ill in • cottDcil of* war in one place,
^ m ■■Mtlwr place they saw hioi in amii ;
%iM use mm hitn aaiiat at a proctamation
%mm fla0e> aod aaw him to arma in anotlicr ;
# Ibil mm aa w htm write a treasonable paper,
' lar eawr him iiae it ; 'Dieae witnesses
aMderei aa con testes, or oonearring
i «ad lea or twelve ioquests have so
is^, 9m4 mmm tJieir veritiet, rebels have been
lail| hangwd* The leamcf I jud|^ of England
laag all met together did ex{ireisly (inil, that
«r mmmm acwfintfi th^u A. B. said, that he
la liiiy a knife to kill the king, and
igTp thai lie ttw liim boy a knife
fo whait ^iifcl \hmt two wit-
re oniimieft aftd nroved fltifficM«ntly
ef treason i v«t taite tlac one wit-
d«aig]), aod the
other an act which was indtffcrctit of iu own
nature, fuidUecauieorl*^ ....i.i.. i... *i. ...,..»,
neetioh ; hut uo wn ^
thbffs so coherent, ^i.^^i
aa these do ; for they d'
same perHon i^arryiDn^on ii< t of i
reMhun, as to wliich, in one place, lie ti ex-
ntio^if his own neplicw, and lellintr bim tiis rc-
s<^»luttoos, und Hettiirtitr h cnn'espoinl i
him ; at another tune he piesr^cf^
Monro to the same rebellion, vt i\
\m\iUA ineetifi^ at hiHovvn obuiuber) ^i
' ' ' nm that meeting ue sinia
- tlje rel)cllioti. Besides
-' ■'^nfiteses he Siif^- ' ■ I
1 Car$tare^ *
, ./^.u., ,...:. ,vi... ^,j,,u;icd rather '^^
violent torture, than to dbdofie it i be
wt^e deiioses uf>on all these steps, and cob
necfs thens tO;^ether, and tlib his De
l»ositLOn 1% twice reiterated^ upon oath, at]
much premeditation. And I likewise adduce
(wo depositions taken upon oath, by sir Leotii%
Jetikins, who was impowcred by the law ol?
Kng'lanrl, and at the'enmmand of the Kin^^
and tli ■ ■■ ^^..^ .. ^ V . ^^-^^
hia A^ I
depo^
pose5, I
deHirfii..;.,. .- ,. ;.. .. _», ..... ^..i. .
eii the dda V ii c Aiiit thiit there wus so httle lo^
advanced ; iim( who shuuUl he better believed
than one who was hi» own trusty, and a person
who WA!i able to advance so great a sum f
Bourn, another of the wittiesses, deposes* that
Ferguson told hiin, that tlie pannal spoke fre*
qucuUy to him ooocemiu^ the same atumay,
und that he sat up several mghts with Fergnsoii
upon the said conspirscy ; and who should h%
bctfer bdieved tlian F'erguson's confident, and
one who was so tar trusted in tbe whole atfuir^
that he was to take away that sacred hfe, which
Iteaven has preserved by so many miracles f
Ai^ainst thest; three depositions you har«
beard it objected, thai * uon testimonia, sed
^ testes probani,' eapednUy by our law ; iti
which by an express act ot parliament, no pro«
bation is to be led, but in presence of tbe ssaiaa
and pannal. To which it is answered, That
these depositions are not roeer lestimouies ;
lor I call a testimony a volimtar declaration,
etoitted wtihoot an oath, and a judge i but
these deposBtioiis are taken tuuler the awe of an
oath , and by the direction of a judge. £ , ^^^^
hard was oooironted with the pannal Jiimaa^
and he had nothing to say against hiin ; where-
as tlie ^rreiU thing that can De ohjectai wun^
testimontes) (and by our statate espectalsy) is,
that if the party wtio emits tbe festimonjr had
been confronted with the pannaU the imprtt-
sion of seeing a person that was to die by hit*
deposition, would have made him afraiil to da**^ \
poftej lojtl^ : and the pannal hkewiiie migfit by
proposing interfogalmv and questions, l|avo
cie^K'd Tiimself, and satisfifMl the jmlges in
many tilings deposed against hioa : But so it ia
that Mr. ^s^pbard hafiiig been confiVBtad
2Z
707] STXTETmXl^, S6CnARis¥,Blh i6%^.'~Tnal of Baillie of Jerwiswood, [708
afler the jury is inclosed : for then indeed ther
with the pannal, before the kiofr himself, who
is as far above other judges, in his reason and
justice, as he is in bis power and authority :
he deposes 1 hit the paunal was the chief ma-
nager of this conspiracy, next to Argyle, and
tliat he was so passionate to have this money
to buy arms, tliat he lamented the delays.
And can it be iiua<2;ined that Mr. Shephard,
whom be trusted with his life, and his fortune,
and whom all their party trusted with their
cash, would have deposed any thinji^ a«^nst
him that was not true, especially when he knew
that what he was to depose, was to take a%vay
his lii'eand his fortune? or that if the pannal
had Leen innw^nt, he would not, when be was
confronted with Mr. Sbephard before the kincf
himself, have roared a^inst Mr. Sbe[)harH, if he
had not bi'cn conscious to his own (ruilt? There
is a surprize in innocence, which makes tlie in-
nocent, exclaim ; and it inspires men with a cou-
ifage which enables tbeni to confound those
who depose falsely against them. And in
what occasion could either of these have ap-
]ieared, more than in this, wherein this gen-
tleman was chanjred to have conspired witli the
^eatest of rascals, agfainst the best of princes ;
and that too in presence of the prince himself,
against- whom be had conspired? But pfuilt
■tupifies indeed, and it did never more than in
Uiis gentleman *s case, whose silence was a
more aonvincin;; witness than Mr. Shephard
could be. Mr. Carstares likewise knew when
lie was to depone, that his deposition was to be
used a^niinst Jerviswood : and he stood more in
awe of his love to his friend, than of the fcur
of the torture ; and haznnled rather to die for
JerviswiKNl, tlian that Jerviswood should die
miuhtbc dansferous, because the party could
ntif object a{T-aiinst them : but since the statute
only discjinrges to produce writ or witnesses,
aOer the jury is inclosed, it seems c1e«riy to
insinuate, that tbey ought to prove, when tbey
are produced in jiresence of the party himself,
as now they are. And though the civil law
did not allow their judges to believe testimo-
nies, l)ecause they were confined to observe
strict law, yet it' does not from tliat follow,
that our juries, whom the law allows to be a
law to themselves, and to be conBned by bo
rule, but their conscience, may not trust in-
tireiy to the deposition of witnesses, though
not taken lieforc themselves, when they know
that the wimesses by whom, and the judges
before whom thisc depositions were emittd,
arc i>ersons beyond ail suspicion, as in ov
c^se. But yet*^ for all this, 1 produce thcK
testimonies, its adminicles here, only to oonsecC
I tlie deiiositions of the present" i^itnesMi^
I and not to l>e equivalent to witnesses in tbii
lefl^l process ; silbeit as to the convictimi cf
mankiud, they arc stronger than auy onlioiiy
witnesses.
When you, my lords, and gentlemen, re-
member that it is not the revenge of a privats
party, that accuses in this case ; and thiteroi
in pnrate crimes, such as forgery, orthemsr-
der of children*. Sec. many juries here have pro-
Gcecled u|)on mere presumptions, and that eroi
Solomon himself found his illustrious dedsiosi
approved by God Almighty, \}{Hm thepresnioed
assertion of a mother ; I hope ye will think tws
friends dr|H>stng, as present witnesses, admiii-
culated and cunni'cted by the dcpositioni of
by him: How can it be then imagineil, that if ; oibcrs, tlion<;|i absent, should lieget in yon
this man hud seen J(:r\i.s\vood in his trial, it i intire lielirf; e.s;Kx.*ially against u pannal, wbo
would have s:lu;r('d his dejuisilion ; or that
this kindnvs-s, uhich we all admired in hiui,
would have su tiered him to forget any tiling
in his deposition, which might ha\cbeen ad-
vantageous in the least to his friend ! and they
undcrstanil ill this height of friendship, who
think that it would not have been more nice
and rarcful, than any advocate could have bei'n.
And if ( 'arstim*s bad forgot at one time, fvouUI
he not have supjtiied it anuthor ; but especially
at this last time, when be knew his friend was
already brought upon his trial, and that this
renewed U'Stimony was yet a further confirma-
tion of what u as said against him Y And albeit
the kin&r's s<>r^ants were forced to cncfage,
that C'urstiircs himself slinuUl n(»t be marie use
of as a\titness at^ainst Jci'vibucod ; yet 1 think
this kind scrupulosity in CarsUirtsVor Je; vis-
wood should mnvince yuu ir.oi-p thi:n twenty-
sus|KTt, nay than even in ditii-ront uilncssi-s'^;
nor can it Ik: imagined, that the one of these
witnesses would not have been as nnieh afr.-iid
of(i(Kl, and his oath ai Tjondou, ns at KJin-
burgh ; and the other in the couned-cbauilier
has been always known to incline this wtv,
and who, though he was desired in the Tul-
b6oih to vindii-atc himself from ' those criine^
wou'id not say aiiy thing in his oun defence:
and though he olfers to clear himself of bis IC'
cesion to the king*s murder, yet says nothing
to cieiir himself troni the conspiracy eoteral
into \>itii the late earl of Argyle, for iavailiig
bis native countrey ; which is all that I bert
charcre ui)on him, and which he inclines to jui-
^ title as a necessary mean for redressing gnet-
! iuices. I must therctbre remember you, thrt
I an inquest of \erv worthy gentlemen did fifltf
■ Uathiilet guilty, tliongh tlierc ^vas but one wi^
j nt s«{ led a'rainst him ; liecause when be vtf
: put to it, he did not deny his accession: as^
two rogues were found guilty in the late cir-
cuit at Glascow, for having inunlercd a gsB'
ilenian of the guard, though no man StiW tbeM
kill him ; but the murderers having been pur-
sued, tbey run to the place, out of which Un
pannals then accused were taken, none liftvug
seen the face of tht; runaways ; and tlie psnnalf
being accused, and prrssini to deny the acces-
sion, shuniird to disown the guilt, but desin'
it might bo proved against them. This may
in the l(>renoon, as in the justicc-comt in the
afterntHin.
3. The statute founded on docs not disvliarge I convince you that there are proofis which ssi
flic jproduciDg ef testiiuonieiy otherwa\B than j ktfonger than witnesses; and 1 aw sureM
STATB TRIALS, SCt Charlrs II. Id84.-^ HighTlioMm
4 let). Hr-
> iU su
I I do
does let dl tlie
I Kit C43ii!»{Mruturs
e be
ill you that lliis
nf: orihinfH^ tlie ftsske to
•nllct lo-raorrow, bj
itm<ii«« Deitnthtr 54* 16B4.
5, ^vlioj/asi Upon the
:ulUe oi JeniHivvH^h
1 1 40 iifescnce of tlie iakl
nnr follow'? • The a¥si/,e^ till
, ( le.irly i*ojven
ptiuul, m re-
£ 5fc ttibicribitur^ HTUATUMOio:,
urns: i^nd rnuhnif of the wliicU vef *
t^'^'trffs, jn5tice g^ctietat, jij5tici'
! loent ol ■ j 1 1 St i t i ;ir V » t h *^n -
1 xUti Siiid
eri ' 9ie tukfn to
tt*rrc«ift (>t ir^iinhurgli, ^ liii< twenty-
^ TbbffTt&l c3tpc<htto() wa^ o(H;n!^ioiivil hy
rmym^m \m*^ ^tn**' vi' health, *vho they
VL^ulion %y a nuturuJ
" ' ■ \\(c,''
I wrvtv bm ! > and
^ntfor on tJi ^mp-
14111 lU lilK i)WU MtlUti^v Uu-
fouith (lay of December initanl, brtwixt ti»-o
nil,! "" ■ , , '^ V , ' ■ . 'V ''' , ' +' -■■ to
\h' ! :<:£
ht^^^ii .. d
ill four, . I-
h ol JedJmi'^h^ another
I k, u lliird <tti the Tul-
huulJt ul x'^Jt, and h lutiVtb up ihe Tulbooth of
G lasg^dw ; and ordnins his tiame, fiiiur, memory ♦
and honours to be ejamct ; hU btooti to be tuint-
eJ, and his arms to be rivcii t'uitli, ^tid ddete
out of the books of arms ; so that I ly
may never hare place^ nor he abh. >o ,
brutk, or joyse any honours, ottitvs, mts or
di«yiiities, uithin this reahii in time coiiiing' i
autl lo hate t •-* -i* -i -r,.;**^.! i .j^i^ ^ij
and sundiy \ ^^tead-
inj^, rooms^iJiK ^ . .J., ^. . - -i uhat-
80€yer,pertaminj^to him, to our sovcieiun lord's
usC) H retoatn perpetually with hL^ hi£^)mefi«
in properly, which was pronouncetl for doam,
Sk subttribitur, Linlithco>*.
jAAT&i FqULI!». HoG&R UoU.
J. LoCKAflT. A. SCTON.
t}Jk\W BALFOVa. P* LVON»
Extracte<l forth of the books o! uojivurnuJj
by mt* >lr. Thomaw Gordou^ckik lo theju«-
lic't! court,
i^ic subKrihitur, TiioaiAS GOROOH*
He was execufed accord irififly the same day,
and at the place of exccutioii ]K'ri^istcd in de*
uymy^ hi^ kuowledjje of any desii^u aKaiitj^i the
kind's lile, or the iluke^^^ or ot any plot at^^iiiinl
the government: he onued, he thouf^ht ii taw*
ful jof hubjeets, being under such prtsfcuies,
to try iiow thtsy might he relieve^l from theiiif
guage i *♦ lu ortler lo ^'ivu vajjety to the
narration, and to avoid making' ri.necUonii
<>n inyse]*', J have often thrown wh;tt ptn^ple
t!iiiii;^lii into nhiii they said. This* Uioiigh
viar: uited by the e3(amplu of uhun^t all the
aulieot hisloriaus autl tlie i^Teuti'st ol the mo >
del us, mnv in this age give an appearance of
iuHdehty to the narrative. But L Hatter fny *
Kelt' a reader of taisite will easily perceive a dt^-
tiuction. WheD the words are cootniaed iu a
ptentenccortwo^ ihey «r«; those whtch were ;ic-
lU'i ' ^ 'liey run into h-nglh ihe
Ul tile for tliem/^ " (Pm-
race t J* \<ii, i n[ jicmi'ii'^, 4to ed. 277 1) The
di^ij;jctiou taken m the la^ claujie of tins pa-
' " ' '" ' f '" ' "t>?cdly uot true m Xkie
;»le.
,. . ,.,. ,^. „.. r pfirt tX, hmik 10) lu*
forms us, that lo In; i ;i|'|i i u. !-> wrue
history without diav n^^ mo, a I oi j.-im. al rnles
of conduct from it« in little better ihau wriuu^
a romance,*' The FUideut ofsir John's work*
may eacperimcn tally asccrtaiu the nielauch.dy
truth, thai the absence of luoral and [ohticsl
dtfduciinns i^ mtt the only quality by which
hi.story ca0 be degraded to the r&uk of i ro^
tuatict>
711] STATE TRIALS^ d6 Chablbs II. l6S4^!IHa/ of BmUte of JenUivood, [TU
and hii design went do ftrtber ; bat he refined
to enter into partioulan.
Afterwards, in pursuance o^ the sentence,
his majesty's heralds, and purserants, with
their coats displayed ^afler sound of tnimpetB)
did publicly, in face of the court, ocmibrra to the
custom in the sentences of treason, in his nut-
jesty's name and autft\ority, cancel, tear and
destroy the said Mr. Rdbert Baiilie his arms,
threw them in his face, trampled them under
foot ; and ordained bis arms to be expunged
out of the books ot heraldry, his posterity to be
i^oble, and never to enjoy honour and dig-
nity in time coming : and thereafter went to
tlie Mercat cross of Edinburgh, and solemnly
tore and cancelled the said Mr. Robert Baillie
his arms, and affixed the samine on the said
'Alcroat- cross reversed, with this^ inscription ;
The arms of Mr. Robert Baillie, kite of Jervis-
wood, Traytor,
Wodrow, in bis History of the Sufferings of
the Church of 8cxitlanfl, gives the following
particulars respecting this Trial :
'* Mr. Robert Baily of Jerviswood, with whose
auflerings I shall end this section, was a gen-
tleman who had the testimony of some of the
greatest men of this age, whom I could nanoe
for one of the best oi men, and greatest of states-
men, and so was a very proper object of the fury
of this period, and could scarce escape the rage
and malice of the duke of York, and such as
were witli him carrying on the pk)t against our
rc]i<rion, reformation and liberty.
** InticeJ he fell a sai'rifice for our holy refor-
mation, aud i-cccivcd the crown of martyrdom,
upon the acouuut of his zealous appearances
against [)0{K>ry and arbitrary power. 1 can
never consider this great man, and several
others, in this ai.d sircceeding years, of the
most judicious and notable of our martyrs,
neglected of d«»ign bv the collectors of the
cloud of witnesses, but I must blame their pri-
vate and party temper.
*' JcTviswooirs trial was published by the
managci-s, and 1 may perhaps make some re-
marks aftcrwanlh upon it. I shall here give
some few bints I nieot with in the records,
with relation to him, whpn liefore the council,
of. which tlu'rtf is notliing in his printed trial.
*< 'l^rr.u*^li his long confinement, and harsh
treatment uhon in prison, this goml man
turned vitv sickly and tender; and it was
n ckoned almost CL^Iain tiy all, that had the
managers spared this gouilcmau n few w(>eks
longer, ihoy would have Uon rid of him by a
natural death, n::d <'srupcd t\.v indelible blot of
inlmmanitv antl barburity i.** so excellent a
nci^on. lie. \^ as c\ idontly ;i fly in i; v.- hen tried
before the justiciary, and was obli<;vd to ap-
pear in his 1 light goVn before them, and scaree
able to Slant) whon he spake; :>f)d yet he was
kept in the pannel tor ten hours, and belioved
to take cordials scveiiil times ; and next day
he was carried in adiair, in hia night gmm, ti
the acaffold.
«< By the oooBcil-booka, I fiiid« Au^^nst 16,
< the lady Jerviswood is, upoo her pctkrai, al-
* lowed to see her dyiuff huabaBdy with tfai
* physicians, but to apesik mMfaing'to Urn bm
* what they hear and are witncvca lo.* 1 aa
of opinion this low state of his health pat the
managers at first off the design oTMrnriwim
him criminally; and to secnre kia ciltfe,
while he is dymg a natural death, brought on by
their maletreatment, they raise n proons ii
order to fine him to the value of 60001 start
'« Thus, August 30, the ooondl order the ai-
vocate to pursue Jerviswood, lor reeatting, cb-
tertainmg, and corresponding with rebeh
as lar as 1 can find he was not ahic to i
before Uie council when they passed a <
against him, only be ocdered hiandfocaieli
appear for him.
Accordmgly, September 4, the
pass their decreet, fiiiinff him in mx theesMi
pounds sterling. The jwueci ia very Issr,
and would take up too much room bcR; u
short, it narrates tne libel given in agaiaat Jsr-
viswood, which consists mostly of the artidM
of his nrinted indictment, upon which At-
wards he suffered, and a charge of hia convene
and interoommunuig with the perNna who vill
just now come in ; and then the libd ■ re-
ferred to his oath, which he reiuaing, they pis
sentence. The sum of all is tfaia:
' The lords of hia majeotv's privy ooiwil,
' having heard and considered the fivrnaid IM,
' and the interrogatories given in hy bis ni-
< jestj^'s advocate, in order only to an arbimiy
* punishment, to which his majesty's aduMSK
' restricted the liliel * pro loco et tempore,' uA
* reserved the other articles of the libel to te
* pursued as law accords ; and the comd
< having api>ointetl a committee to examine Mr.
* Robert Baily of Jerviswood, upon the Slid
* interrogatones, the tenor whereof ibUows:
' Imo. Did you harbour or inteicomiwas
< with Mr. Samuel Arnot, Mr. Gabrid Scafte,
* Mr. David Hume, Mr. George Barclay, Bfr.
« William Gilchrist, Mr. Alexander Ptodu, Mr.
' John Hephnm, Mr. John Rae, Mr. Jaaf
< Kh-ktoun, Mr. Alexander Lennox, Mr. David
* Jamison, Mr. Thomas Douglas, Mr. Alexts-
' dcr Moncrief, Mr. John Welsli, Mr. Ricbsid
* Cameron, Mr. Donakl Cargii, Pw*
* holm of Westshields, — *-^Stnait rf
* Cultness, James Stuart his brother, Mr. TlM>-
* mas Fellings, John Wilson in Lanerk, Mr.
* John Menzies of llangingshaw, Micbad
' Lamb in Lanerk, David Barclay surgcoa is
* KdinbunHi.
* 2do. Did you reset Alexander Tweeily J^
*■ gardiner, aHor Uothwd-bridge.
' And the said committee hin ing gone to tU
^ Tolbooth, and desired the the said JenisvoW
' to answer npon oath to tlie said inleiTOgt*
* tories, and he having refused to depone, ^
* said lords do hold him as confest, and gtokf
* in regard of his refnsing to depone, wserv
' iag to his msyesty's advocate to fmnm >bi
STATE TRIALS^ 56CiI4ELES II. l£g4^#r High TfMMm*
I litiellcd, tiui wfaereof the said
* Jm^mi9W>4 m now livlden as oonleslf iw law
* aoonnli^ and hkf^ ^m4^ awl fine ifae nid
"twto' iiteawtienf-
* kpfli taris IwlMi u.^ . i :i u ^ I c piiiii to his
> fcaiaitj^a <iaih>kc<«|icr for liifi luajpsty^ii usti.
' WlikilMnmioe was iniiirmttsd W Mr WaJler
> i^iiifd> ^ procuniAor.*
** liaa^atl bcarmcipejijat mow of such tin-
HoaiMyMs finua ki^uMd iipoo l
l» Iha n*l vil»N of tMr «itali«. bui c
liaM 1^ miM^i*ni gti ou to liu&t for hia pre-
cm* li^ geptcniber lU, tk« couocil give
tMlci* to nifio¥o iltii Imly GraJeD bis mvbsr^
md ihe kdr Jer^rswood from his room in
fOMt tl*^ Wifi^ inliuritieti he is recovered of
m iiidiayatiakm !%*« ihaJ] And this wiu but a
tmy liMdar r»etw"ary» and thnt uftt^riKfriltihe
tiiw wvencf in part^ nti diniUt, \*e\xig
I ■find #f llic aire of ih'^e rv i idJies;
1 IH IfiWViBbtr Q» 1 i I ;ideo is aUowed
i UltdMe pfiaaaar ^ viswood, becaitie
4 U% raktiiifiiiarr i*<)U4liiiuu.
^ II# c^^f^lioiiiw in |>ri«oo still weaker aiid
««lsBr, lill Dasembwr 18, when I find the
im^ aiW#qate la ordered la purmic a [iroce^
^iiaamn and fbffbitvret afiuiist Mr. Kobert
hdf ol' iffnrtawood, to morrow at two of Uie
<M^ Mirf av Qe0ffg^ Loekhart of Camwaih^
ad«ri«ltii Lawd«r adrocates* art sipnoiiiled
ttcarar vridb-IlM kingr'a ad*oc«le In the ^m-
C«K. 1 need not again remark, that thiji was
iifV9»eiiiJcrrts|r<Kid^s emplo^^ing Ihetn id de*
iiKiMf hts j«iat rtfhta. Howerer^ Ibc lime
mt txcrtdm^ ahort, and therdb^e, Ihoueh ii
iaai In tie yet Hie more straitening to rtiin,
^ Iihfi anil iodii;lBi«at were not put in hi»
t tfttd ; upoti the ^3nl of Decett-
1 gir«s 141 a {Hitition to thecoiiD-
*1lui mdy yeatcrdAy lie rfceired an in*
' vaaon at elevcii of tlieclockf to
r ihf* juaticiAry this day at two of
Ictek i» Itr* ■»*'--tti*»n, «hfch is so »hori a
ti»' hus ^t tio l4iwvtt«
, tK' ^-fcehifi IfUers ot'eat-
00 f<ir >s defeooca and ohjec*
*t^ u^aftMt : : »«^saea, na is allowed hy
i^'wyelahoo^and t^ (mlinavy time
<;aara ii fWiMn daya ; and th<; neti-
\ Ai pr«setit being m akk and wvak^ aa
I aot aide lo oeme over fait be«l without
a» atyeani by tlie lestiitamy ol*
wkpMS»re he Jiumbly nuppti-
be nouocil may proroaptie the
' din m aosw eomfvetent ttme^ and lUair liwi
•k|5ia», — ^ - Patrick Huiimv Mr. Wahcr
I^Mui.. )ca Graham, Mr. WiNiiiin
T •'fWii r , J ., ijt-j* Faloofiar, and i>l r. Wd-
I UMly .' Tim couutrtl rrftme to |irorog«te
hm, '« but (^ant btoi the advocates be
■i« and alkMT ibon to fdcad witbaiit has-
^gilibeyrtitbmmylbamiidvcuio their ptea^
"^^^ '1 * rS lat«^ and ioyalty^ oa they
I* ir peril/
^IbMuaLl I meal wUb in tlie council-
books ooncertiiiig i^erviawood. I shall now
give tbe reader an abtitract of thifi excidlent
person's trial, from the justiciiiry reconbt ; the
principal papers being alread v printed, I sluUl
only give the aubstaoceef tbem. Upon Sep<
tember 23, when, as I bare akeady remarked,
this worthy gentleman was in a dyins coodi- .
tion, and could not have lived many days« he
w»8 earned inbelorethe ju&lidary^ where bis
indictment is read, be^rmg,
* That notwithstanding conspiring to over-
turn the governnieat^ or conceaiintr and not
revcaUng any treasonable dt^sig^' or
discourse tending thereto, or as$3 ig,
or abetting ^ich as have any &ui u dc^i^us,
infer the pains of treason by act 3 FniL 1,
Jam. !• Act 37, Pari, t?, Jam. 1. and Mi act,
pari. 12, Jam. 6^ and act 1, sess. 1, jkuL 1^
Char. 2, and act 2, sess, 2, pari. U Char. ?.
and act 2, pari 3, Char. 2. Nevertlieh«8 th*r
pannel troiterously designed to debar his
royal highness, his m^esty^s only brother,
from his right of succession ; in order lo
which he endeavoured to get himself elected
one of the commissioners iior settling a colony
in Carolina, Uiat he might thereby hare better
access to treat with the ear!s ol SUattJ«bury,
lord RusaeU and others^ who had sintered into
a coDSpiracy in England against his mf^e^tyV
peraon and government, and with cclonet
Rumaey, Walcot and utbers, w^ho had con-
spired tne murder of the king and Uis brother,
and went to fiugknd biniself iopusLi turwanl
the people of England, wbu, be said, did
notbing but talk ; atid af^er he had settled a
correspondence here, did transact with ibo
said canspiraiors to geta sum of money to the
late eati of A^gyle a ileclared traitor, for
raisiniyr a rebellioa, and 4lid cliide the English
oonspjrators for not sending it seasoiiably,
Attd among many niber meetings at Londuu,
iaofiary, P<iiruary, Jdarch, ApriJ, or May
1683, for carry ing on the said traiteronadet^pi,
had one in his own chamber, wbeve wecaine
lord Mehnl, sir John Cochran, Cesnixdc elder
and younger, with Mr, William Veitt^h a de-
clared traitor^ and did treat of seailin^ the
fcrasaad moDef, and the Scciiii upon tbeu* at-
leanplinr any €bing tor their own relief, their
petting bofse Irnm England^ niid seatdowti
Mr. Robert Marlio from that iiieetiog In pre-
vent aoT rlsiiigan HeaUand, till it sliould be
caaaanable. Wbicb Robert ilid treat with
Pol wart aadctbem, abaul sacttriyg 4he offi-
cars of atate, caaHes and Ibroea in IScutland,
and pullmg tbnir associates in readiaeas lo
asaiat the eafl cf Argyle. That he did car-
ietpand w^lh F^t^gnaon, Ara»strong, Humse^,
ana Walcot, who were privy to the bomd
part ef the consprracy ! at least be cor-
remanded with the late earl of Ar£^ le, attd
Mr, William Veitcb, dccUu-tHl *rait<irs, wLnre-
tbrongh be has oomiitttle'^ of
ibe onines of htgli traaaon
^* J«r>'i»ii«oo{l'fia^QCfttes pled. : JiJ
ant tonai^to the knnwiedgeuf ai. jm -
canae lie bad not gaUten a cilalina of j^iunsi
il.
7 15 1 STATE TRIALS, 36 Chasles U.
rdnys^ and was jtrectudcd Ivis exculpation ; ftnd
thy act of parhameiit, nil {lannels bHWrtt the
Lcmuinal Cfmrt itre aWowiMl to rnim precepts of
Fcxculpatioo, which mpjios^s a competent time,
^ noi here aIlo\% ed. Thu the kine^s advocate,
I bis Crimtuals^ title of libels, alTcm-g, and the
[ lords de^nJed il in the case of Robertson 1673^
lyfho albeit he got his libel in prison , by an in-
erlocuiur behoited to have fifteen days. The
Jvocate oppoues the constant tract of deci-
Efetons, and says^ that act of parliament is only
Jn cases wheVe a summons or libel is to be
used ; but here there is only au indictment,
llBor xTtks exculpatlan sought lierorc the trial,
flthich is Hie caiic in the act. However it Is ,
jlain, decisions can never prove any thin^
igninst law. .\nd Jerrisirood, as viti heard)
elitioiied for excuJpnlion : yet the lords repel
defence for the reason^s given by the ud>
ate,
*\ It was further atledged for Jei'viawood,
hat the harbouring:, entertaruiog- and inter*
bmmuuing with tlie persons uauiei), is ^ res
► hactenus judicata,' and the panoel already
loed by the council in a vust sum upou lliat
sccount. The advocate restricts bis Itbel to
be panners entering into a conspiracy ibr
Hising rebellion, and for pi-ocuring- money to
be sent to the earl of Arg^le, and concealing',
and not rev.' - '' s. It is replied, that Jer-
riswood's * n^ with Argryle at any
timetioce i..^ ......Lure, was expressly pro-
pounded as an inlerrog-atory before* the council,
and that not only by himself but likewise bv
major Holms, ftfr* Carsiairs, West, HhephenI,
ttumbold ai;\d Rutusey, and refers it to a double
of the act of council writ bytbeclerk^s servant,
aud to my lord advocate's oath ; and as to IMr,
Veitch, l\e was not declared rebel.
'* Sir John Lawder for the king:, oppones
the council decreet, where no such interro-
gatory was put to the pannel, which must bear
more faitli t' - ^^crol, and rannot betaken
nwjiy by h advocate's oath, to ihe
kin;^*s pr*j.M -,. . „iiJ adds, Mr, Veitch wns
forfeited t607, and I6(i9, the tbrfeiture was
ratified in parliament. To this it is replied,
that he does not appearlo be the person nainoit
in the net of parliament, and though be wercj
lie came home since, and all the punishment
inflicted on him, wns Kani<«hiuent, not to return
nndtr pain of death, which took oif any former
pitni'ilunent, and it was no ciime to intercom-
inline with him, esjiecially in another king-
ilom ; and bv the act of council 16B3, the con-
cuhmBH
, the QviS
Il vv^iiiAur
I to
Tits
n-JOlJ of
[▼ersnr ^ 1 traitors '
rbitr The a.l
t dwk.i. V4 JV..1L.HUH., and the |j
l>uncil.
1? The lOrilt ^:r;*t"iin i}if lihtl xi^ f•^^t^r^*''lp j
iHmt. ar
•• first ftfi^' unsi whom Jerviswuod's
advoC'Ule^ > >i be is * socius ct-imims,'
and hy 54 cap* ^tal. 2, Rob. t, nnd likewise
under an indictment of high trea-son, and being'
imdcr the iuxpresflions of fear and death , ou^^ht
ncnto be admitted; The advoottle
that in conspiracies * ao< \\ ' v* fast e
been admitted, because r, itncflMt
be had, and the earl hath imh, ...... .lefert
any security tbr his dejKjning*. The law^v
for the panneh>"l^ th^ viniui** (»f king RotH|
sundsin full r lex
* guit, non est ^ '
eari vh incari'crate for the f^ame crime,
under an indictment of high treaitMi
thrown himself upt»n the king^** me
cannot be witness, seeing the kin§f
him his lite or not, and m such circun
a witness was never admitted. Yea, 1
Tarras is to be considered lu coixleiiiiittl I
the crime of treason, neeinir he foil umI ilB|l|f
contcssed the crime, and never «iy fciiy
allowed, that * dumuatiis criminij*
*jestat»s,' could be admitted as a w»t
which he addnceth many lawyers, 8ir I
Lockhart for the kinyr oiMmtiL^, i\%i\i ^
* criuiinis' arc atlmitteif v.
* crimiuibus ejf ceptis, * win
lawyers ; and that the eail of I
snbmitteil to the king*s mercy, is n
* socius criminis ;* and if this
conjurutionst of treason could r
Another of JervLswi " '
there are some obp
witnesses, even in ^ m ^
example^ that he is a <
* sub |iotestate at^'usatoris, — :
Tarras is by his subnussion and «
and he having submitted his ftf»
to the king, i«i in the case ot wbo
absolutely dependit U}>on his t' vl^v-
cate the pursuer, and in a pri^uir prveo*
* testes domesiici,' and such as mtirH'. flepeurf
on a person, wdl not be wffi
theargfument, that at thi ^w-
soo must ' '
jcfity*fi ad'.
before he iiiui i ^j*^
tf»e ttniir of ;» c but
have inriuenci^ i... ♦..**. »- .i ^i .
they tug'ed that none tmdei
can I'' :n!uitU*M!, uo more than
and ^ even in ''«wi,'
butti lu^terially* u^tA
indictment he ciJtjle»<*eth ; aiui tievtt « Uwycf
asserted, that n nti-sou convict of treason rwiW
be admitted a witncsi» -
** These reasonings were «o fitran^^ that (lie
publisher of JerviHAvood's . >''"
On the marjfin, as if he h
earl - " ' "
de[H(
the earl, for whtch he vs
there rum Id be no t^romsi'
ctrcumst^vnces, whir^
cd. This migfht be
and I doubt not but it whs ; au
was convict hy confession, th^i
of witnesses, but ut abundanit to cwWui ths.
design the better.
'« Howeveri the lords repd all
PATETJllALS, S6CHA»LK*f!* l6S4;— /or Hig
[718
r, nf nppn ^sioii* after the
vOud'* CHSL%
ak 3^n1 talk
luj^ I a iUi: kln^ to i.^\'rhuie
fttiil lluit tliey tliscourKeil
' i «*arl of
, came
to the
if Pi) ts, am)
' n to an J iit rliem,
fli»' pTi't. rts rt wns
< V little
^ They
ts made
nil, and
of Mr-
lined be«
LH^tiimiiti^, given
iiun oalh^ iipim thir
loiU, iU tlie j>ri*seric<* of his
fmy cwuncil.* Tlii>i lanks as if
id h»d IV rcncM'ed his de-
MMsnlti un e\e to hin dear
\v €Oroin$ro[), than
►US to tiiib worthy
^.^ i " " '^j^oRrs by
prt4^d, an. 'mt that
IliaiU rii ' *i*>fne
belofi* JcTviiiwo' I nd dealt
lily tn lu' ;v fist Jcr-
orrcnee,
srranted
•d bat to upfiear tictbre the
' ' s that he
liis own
,^ .. itii^ not pre-
t told lli« 1 ler any things
*.. ., — .;. ^ tliinj^. Mr.
tit^^ ihut ais tar an be coutd
fr<f Iw-rMtr till- rfHituil ; but
ibytbt iry^
, tnd 1 I wo
' by
avn
ucie hhi
» tliecoo-
ii iiti iiaa lAiidc thu^c dvck*
ratione. ami exi>pct#il Uic? »hnu1d not bt
I...,,.. .f,t -. --r t - person, as iliey liJid |iro-
111. ^n^\ this |9| i]^H ihat
I idfictilur, UAieen^berry ,
icyMere suiiiained oic au
;^ / id's and Mufn's dtrbira*
lions were uroijiicf d^ and this wtis all the pifwf.
** Before the a^st/e int'low^4l, the advocat had
a most bloody and *;eireri^ 8|>r'eeb Ut tbern,
^vlierein every \\iin\x is strrtctiml to the utter-
most tt^jnst'thc pn?i!K'L i ^ .jII nut insert it
hpie* since 'tis ulready |nddiHlieii. In sfauft, he
v ' i of a th.ti ' :, for
tl eni^I»iriU' the
Uinnfri^, i\iv [uu. t!Cf oi the juil^cs nr t.ut;lund,
who fuuiiil (itoor euoii;j;b to foHeit some of all
»•'!';, and in<ji5;ts upon the witnesses being;
Mvood'ti relationii; and if be be not {lU*
t)» MO man can ; the conspiracy in a cheat,
the king's Judges murderers, and the witnesiei
knaves, and such aa have died, martyrs.
^* ileg'Oes on to a^^ravate the desig-ned inva*
sion and civil war which would ensue, and
mof$t catumniouHly insinuates, that the panocL
vijis \%T\vy to Ilounfs desii^n to kill the kin(|f rl
. eas the readtM- will observe in Bourn's de-
' n^ that Jerviswood was with them mere-
ly aiifiut the money to lie irasLsrmtted to Hol-
land. He re|jn»aclies Uira with being- nephew
n-i s.7tv-in-law to the lord Waristoun, wbichf f
>t\ Jcrvisivood reckoned a ^reat honour
. . biippine!%Sf and nlled^es he was ring^leader <
in Scotland, and g;nitty of treason as much aa
Blackwooi!|j whom he'mightbave been ashani<*
ed to mention*
*^ Then the probation is summed up with I
much cunning-, and many stretches. Amonj
other thin^ he alledges Mr. Carat^rs^a friend
ship for Mr. Baity, aa an argument of the truth j
of his deposition, which was emitteil when he^
knew it was to be used against JcrviswooiU
Af[er what bath been narratefl, the reader will]
very much question the truth of this, 3Ir. Car-
stairs provided exprtssly ag^aiost it, and unleaij
he knew the people about him to be faith lestal
and villanous, he could not know tbt!^.
" He insists a^aiu upon the clearness of th#1
probatiori, that Jerviswood was accessory loFl
Arj^-yle's desif^u of invadini^ tiis country, audi
adduces Itathillers case, wherein he saya^f
thcr*; wHu bvit one witness, and Uiat td' two meoj
l>6iore the circuit at Gluiiexiw, aj^aiuirt whony
there were no w^tjie»se.i of tb'iir Kitlin;^ two i
liie ijrnardt but only their not diM'luituing the
t;ui!t, and puttiu&jf the court on proof; and uiufusl
iJouchar^ ense, and s^ay^, if a Greutlcman waf ]
lately found i^uiUy of higbtreuson, by tht? opi-l
nion of all the lords of tlie xe^^iMi, tor not re«
veating that sir John Coehrun voughl fiftj
pounds sterling- fi-oin hiuK though he refua
the %auje» and tbougli be believed it wa» «ougli|^
for a cbaritubte ^iul^iistence, what deserve« tbtr
pannel who sought tbiriy^ thoufiand pound
slerli?*!^? Thus we see pre**eib*fit«< mud**
their own iijiquous and MO pfect''
TheAdvorutf closcjiull by *hcv 11
itQi HQ much upoQ thu probaUuu to wcmiuct]
719] STAT£ TRIAf A 36 Charles II. ifiS-t^TnVr/o/ BMlieqfJerwitwood, [720
the assize, as the work), that there was a con-
spiracy ; and indeed this speech seems con*
trived on purpose to stretch e^ery thing against
Jerriswond.
** I wish I could gife as f[Ood an accooot of
the mo? ing speech Mr. Baily ha4 to the in-
quest, audthe home thrusts he ga?e the advo-
cate ; but I can only say he appeued to the advo-
cate's coDScience, vrhether he was not satisfied
as to his innocence, and had not owned so much
to himself; which the other acknowledged,
hut adiled, he acted now by order from the go-
Temment ; and to the advocate and judges, he,
like a dying man, most pathetically disclaimed
any access toy or knowledge of any design
against the king or hts brother's liie; but
added, if his life must go for his essays to pre-
vent a popish, succession, he owned them, and
heartily parted with his life as a testimony
against a papist's mounting the throne.
*< When all this is over, the assize are or-
dered to inclose, and bring in their verdict to
morrow by nine of the cwk ; wliich was done,
and is as follows. < The assize in one voice
* finds the crimes of art and part in the conspi-
* racy and plot libelled, and of concealing and
< not reveahng the same, clearly proven against
< Air. Robert B^ily the pannel, in respect of
* dqiositions of witnesses and adminicles ad-
' dnced.' Stratiimore, Chancel.
*< Upon the opening of the verdict,' The lords
* decerned and adjndged the said Mr. Robert
* Baily of Jenriswood, to be taken to the mar-
« ket-cross of Edinburgh, this S24th dav of De-
* cembcr, 'twixt two and four in the anemoon,
*' and there to be hanged on a gibbet till he be
^ dead, and his head to be cut off, and his body
* to be quartered in four, and his head to be
' atfixed upon the Nether-bow port of Edin-
* burgh, one of his quarters on the Tolbootii of
' Jedburgh, another ou the Tolbooth of La-
* nerk, a third on the Tolbooth of Air, and a
' fourth on the Tolbooth of Glasgow, and or-
* dain his name, iiime, memory, and honours,
* to be extinct, his blood to be tainted, &c. as
* in common form ; which was pronounced for
* doom.'
** Tims this saint of God is hasted away to
fais father's house. In two days time they begin
and end his process, and executed him as if
tfiey had be(*n in fears of being presented by a
natural death. His carriage was most sedate,
oonregeous, and christian, af^r his sentence,
and during the few hours he had to live. And
at lus execution he was in the greatest serenity
of soul possible almost for a person on this
aide of heaven, though extremely low in his
body. Heprepared a speech to have delivered
on the scafiold, but was hindered. Under the
prospect of this he left copies with his friends,
and It deserves a room here, as containing a
abort and distinct view of his case.
The Last Spbsch of Mr. Robert Baily of Jer-
viswood, who died at tlie Cross of Edin-
burgh, December 34, 1684.
• Having noeived such usag« as I bare done,
and having got so short tine, itMnnot be ex-
pected mm me in reason that E ahonUsay
much.
' Only for my own vin
dkatkm of my religiou; I do tertify wd de-
darain the sight of the omniflcieat 'Ood« awl
as I hope for mercy on the di^ efChnsi's
appearance, that I was nearer oomGWOi to
any conspiracy against the life of fan sacnd
majesty, or Uie life of his royal highness tbe
dnke of Albany and York, or tbe life of My
other person whatsomever.
' That I was never conacioiii to any pfotia
any of the nations, for the overthrow and ssb-
version of the g^emment ; and that I de-
signed nothing in all my pubfic appearanon,
which have been few, but the preservatirio if
the protestant religion, the safety of hk
mi^iesty's person, the continuation of earis-
cient government upon the foundatisM sf
justice and righteouaneas, the rodresaiiyrf'
our just grievances by king and parliaoNsi,
the relieving of the oppressed, and pottia^s
stop to the sheddi ng of^blood.
< As for my principles with relation Is p-
vernraent, they are such, as I ought nst to
be ashamed of, being consonant to the swd
of God, tbe confessions of fiiith of ike le-
ibrmed churches, the rules of policy, lesns,
and humanity.
< I die a member of the church of SeoHmd,
as it was coaiktitute in its best and pmit liw
under presbytery, judging that wm sf §»-
vernraent most conducmff to piety and gw-
liness, and most suitable for^ia natioo.
' 1 die a hater of popish idolatry and super-
stition. The fabt zeal I have had w^iuMSt
popery, and for the preservation of theps-
testant religion in this nation, hath brougM
me to this condition. I am very apprebes-
sivc popish idolatry will be the plague of 8ooi-
hmd.
*• God open the e^es of hia people, to umwMr
the hazard they are in of popery. It kco*
the generation is fitted for it, and all tbe cs-
ginesof hell have been nwde useoftode-
bauch the conaciencea of people, that tli^
may be fitted for idolatry and supsnti6oa.
Men are compelled to take oontradidory
oaths, that they way beheve things that hs^
a contradiction in them.
' I know I will not be allowed to speak vbij
I wouM, and therefore I will say littk. |
bless God this day, that I know wbom 1
have believeil, and to whom I have cosi-
mitted my soul as unto a feithful keeper. I
know 1 am going to my God and chief jo^'
My soul biesseth God wid rejoyceth io liii|"i
that death cannot separate botwixt nesoi
my God.
' I leave my wife and children opoa tk*
compassionate and merciful heart <if 1*5
(*od, having many reiterated aasuraucet tbil
God Mill be my God, and the portkNB v
mine.
* I bless and adore my God, that dtathftra
' long time hath been no terror to ■€» kil-i**
I] STATE TRIALS, 36CHAitLES IL l684.— /or HighTteaion.
^theCTiMich desired; and that ray blessed Jesus | o^er on the bed, and fell
* limth taken the stiny out of ft, «nd fimdc it
* a bed of roses to all ibai have luiil holtl oo
* Jiim by faith, which worketh by love,
B^My iioiil bleeil!! tor tlie deplorable condition
0f the church of 8coiUm1 ; we are losing tbc
•g^peJ, liaring- fiillcu from our tint love and
* ze&l^ tbercfore God is threaietjiD«^ to ajjue us
* 901 of his TTioulh. Oil thai my tdood iiiij^ht
* oontrihute ir\ the least to awakeu the remnant
■to do their rtrsl works, and mii^ht cootribute
^ lo establish any of biii in the ways of hotine^!)
Ed H^>teot]!me«9.
1 have iiad sibarpsufFefingsfor a considerable
nc, and yet [ must say, to die commenda-
^ iiot] rtt I he grace of God, irfV snfJenng^ time
^ hath been in\ b^st lime ; an<l when eny siiH^^r
' iiiga have lievin^harj^est^ my spiritual ju^ s and
' consolations have been jfreatest. Let none
be afraid of tiiecioss ot'^Christ, hi« cr»>!>s h
' out greatest (fiory. l*et all who lore UiH\ in
HbCM-lty, prepare for the bardt^l of sufteuntr,
^k fire anil gibl>eU ; the avt>r,S)ition thai is in
■I to the crofs of Cbrist^ b Ibe bane of our
^vi>fedsor9,
B^l am mnrh afraid, that Christ wilt be put
^■0|>en sbuiue in JScoiland, nntl will be cru-
Hneti afresh, andUis prectoa« blood accounted
' tmboly and polluted, and that Christ, in bi(»
* members, may be buried lor u ivhile in the
yet I have ^of»\ tf*tmnd of hope
tgieve, that the sun of dirhtcousness will
oe agaiu^ with healing under bis
( that God wtndd awaken his remnant
bile it h to day^ tliiil ihey may consi<ler
lial Wlongs to I heir pesicp. SVo will be
^Ihemifial arc instrumental to banish Christ
at of the land, and blc!$sed uie they wtio
' are instrumental, by a gvspt-l conversation,
S continual i^resthn^- with God, to keep
iat in the nation. He iit the glory of a
, and if we could but lo¥e hmi, he could
.„. part with us, Wo be to them that would
' nther banish Chrisiit ont of the land than lore
f him. God pour out his spint ptenteously on
^ lua poor remnant, that they may ^ve God
^IS0 rest till he make bis Jerusalem the joy and
> praise of the whole earth,
* I have DO more tiiiic, but they who love
' {j<m1 t hope bnve miudect me in my atlliction,
taid do mmd me now, and wilt mind my wife
^vd children. I go \% ith joy to him who is the
^hy and bridegroom of my sout, to him who
' la the Suviour and Redeemer of mj soul, t
' go with rejoycin^ to tlie God of my life, to
f my portion and iolieritanee, to the husband
j^ my loul. Come, Lord.*
|v I hare several crrcumstaoces of this ex-
eefleot person's carriage, during* the trial and
eacecutioa, toa large to be insert here. When
bia aentetiee was intimated,* be aaid« My lords,
the tiDie 16 short, the sentence is sharp, but f
Ihauk my God who hath made me &s ^t to
die, as ye are to live. When ^nt back to his
L iQ the prison, af^sr tenteQce^ he laaaed
YOU X*
nto a wonderful
rapture of joy, froiri the ai*yti ranee he hud,
that ID a tew hoinis he Ntoidd be inconeei^blv
happy* H^inf^, a(ttr a little silence, itkiiil
bow he was, he answered, Never bHter, >ind
in a few hours Til be weli beyond allcoticep-
tion ; they arc gfoioar tf» *^nd ine in pieces and
quartets through the country, ihey may ling:
and hew my lioJy ns they please, but f knoty
assure ily nothing shall be lost, but all these my
members shall be wonderfully ifatbere*!, and
made like Chrin's glorious body. When at '
the sciiffold. he was not al>le to go up the lad-
der ^^iiboMl suppoit. When on h, he said, My
f^int zeul for the protestanl religion hs5
brought me to this end ; and the di iimi« inter-
rupted him. Their spite againsii ht<^ Uo(\y wm
very great, and i am tdd ilie quarters ot^t lay
in the thieves- bole for three weeks, befoi*e they
were placed as in the sentence,
** There are some other noblemen and gen-
tiemcn, 1 meet with this year in the couiidl-
registers, attacked for the* plot, as the earl of
Tarras, who, as we have heard, was indicted
before he was made use of as a wiiocss aguinst
Jerviswood, and the laird of Polwiirt, smce the
revolution chancellor of Scotland, and king^s
commissioner, and Fringle of Torwooillie, and
wuTie others ; but their processes not being .
brought to an issue till next year* 1 reserve
rhtMu till then, that we may have the 1\dl ri«w
of all which concerns tbem.^'
And in the Additions and Amcndmetits pre*
lixed to his second volume, Wood row saji,
** Afler the case of that singular person Mr,
Baily of Jerviswood was nrinled oil; I received
anairativeof some further circumstances of
his Trial from a worthy friend of mine who
was present, and a inoiu-nful spectatoi\ What
passed mud^so deep impri>ssiou ujmn him, tliat
lie is distinct as to the very words and phrases
that were used, and 1 thought they desened a
room here.
V Jerviswood being much indisposed, came
to the bar of the J unticiary in his night- gown^
attend id by his sister, wbi» several times gave
lilm cordials, He being so ill as he was obhgad
to sit down on a stool. He hear«l all x^ry
fmticntly j only when — — — — - was reading
lis long narrative^ Jerviswood would now and
then look up\^ards, and hold up his bands.
When the detlarutions andatftdants that came
from England were read, be appeared to be in *^
some concern, and saidf Ob, oh I starin;j upoa
the king's advocate,
** But when the advocate, in his disgoarsc
to the assize, insisted on those declaratioD^ and
alEdavits, and enlarged more fully upon Uiem
than in the speech be caused prmt m Jervjs*
wood's trirtl, then Jerviswood staretl him ^ery ,
broad, and appeared to be very much troobleo.
'^ Al>er the advor-atehail eudeil his dltcourse,
Jerviswood desired liberty of the earl of Lin-
lithgow, to speak a few >^ords, not bring able
to say much because of bis great weakness.
Which being gratitad bespakatu tbifi purpose*
3 A
723J STATE TRIALS, 36 Chaklbs U. t6S4^7W«/ of BaiUk efjkrwimhai. [79f
■ence of yonr lonkliipt ind ftH bera^ I ao-
lem&ly declare, that lusver was I proomled,
or privy to any auch thing, and that I aUiar
and detest ail thouffbts or onnpiplea for toiidi*
ing the life and btood of hia am^ iiug«atj«
or hia royal brother. 1 waa ever fiw monar-
chical gOTemment.
" And then looking diredilv apop theldng'a
advocate, be aaid, ^ My lord, J think it very
strange yon charge me with anch abominaUa
things ; you may remember* that when joa
came to me in pnaon^yon told meauch thinga
were laid to my chaive, but that yoa did not
beticFe them. HoW Aeo, my loni, cone yon
to lay auch a atain npon me, with an wmk
violence P are you now oonvinoed in yow
Gonsdenoe, that I am more gmtty than be-
fore ? You may remember what paaacd be-
twixt ua in the prffon.'
*< The whole audience fixed their cyea npan
the advocate, who appeared m no email coof*-
sion, and said, * Jerviawood,' I own what yon
' say, my thoughts there vrareaa a privUe maa |
* but wliat I say here is by spccml diredioa of
* the privy council ;' and, pomting to air Wil*
iiam Faterson, cleric, added, 'he know* ny
* orders.' ' Well,' says Jerviawood, * if year
* lordship have one oonsdenee for faanal^
' and another for the council, I prav Gad fir«
' give you, I do.' And turning to too jaaliQa-
general, he aaid, ' My kMEd^I trouble yo« M«
«afaipanofuilherJ'^
That the sickness now upon him in all human
appearance would soon prove mbrtal, and he
could not live many days ; but he found he
was intended for a public sacrifice in his life
and estate ; that he woiikl say nothing as to
the justice of their lordships*^ interlocutor, and
was sorry his Trial had given them so much
and long trouble, by staying so kmg in the
court, it beinff then past midnight. - And
«^then addressed himself to the assize, teHing
them, he doubted not, but they would act as
men of honour ; that there were)iard things
in the depositions of the witnesses against him,
which was to be their rule, and that nothing
he could say was to prevail with them ;
yet for the exoneration of his own conscience,
and that his poor memory and family miffht
not suffer unjustly, he behoved to say, tnat
the most material witnesses were corres-
pondents, and life might be precious to^ome ;
tliat one of them was very happy in a me-
mory, yet he was sure there were some things
said to be spoken in a meeting where he was
which, be was positive, were not at least while
he was there ; withal be most heartily foigave
them. But there is one thinsTt says he, which
vexes me extremely, and wherein I am in-
jured to the utmost degree, and that is for a
plot to cut offthe kms^ uid his royal biffbness,
and tliat 1 sat up nights to form a dechration
to palliate or justify such a villainy. I am in
probability to appear, in some hours, hdfore
the triboool of the Great Judge, and, in pee-
Proceedings against John Sfreull and Robert FFnGUSoN,
in the Court of Justiciary at Edinburgb, for Treason and Re-
bellion : SSCharlksIL a. d. liiSL [Now first printed fjom
the Records of Justiciary at Edinburgh.*^]
HA JurnciARlA 8. D. N. Regis t«Ua in
Frffitorio Burgi de Edinburgh, secundo
di« Mensts, Martii 1681, per HonorabiJcs
viros Richard um Maitlaud tin Buddop
JustidariiE} Clericum, Robert um, floiiii-
Dym de Nairn^ Donainos Jacotiuni Foa-
lis de^ ColintoUQ, Davidem Bultoui- de
Forrct» «t Daridcm Falconer de Nexir-
totin, ComiuusionftrioB Jiif^iciartof dicti 8.
I>. N . Regit : Caria legitime afiiniiata.
Intran
John Spreuu., Api>ollieoarj, prisoner :
INDYTED and accused f^v ibc cfymes of
treason and rebetUon committed be biiii iii
■jMtier tnentiotied in his Dittay.
^pcrjcirerf — Our fOfereign lord's Adf oexite.
procurators in Dtftnct, — Mr, David Thoir»,
Mr* Jmixies Daes.
Tlie lords ^rtfttinue the dyel against the said
Jolra Sprcull till the first Monday of iuue next,
and oiJaines the bail I witnesses far the per-
wvrer and pannall to attend the said dyet, as
alio the haill assy sera, ilk person unikr the
lAiDe of ^00 merks*
* The MS. of this case, aod some ui her Bcoti
R, was not obtained in time for insertion in
cbroDological order. This case formed
part of that peraecution of the Pre«*byterian»
wtiicb is related in the 4tb voL of Mr* Lainff^s
liislory of Hc:otland, and very circumstantiatly
detailefl in >Vodrow*s History of the Sufferings
of the Church of Scotland.
Tbe following paasagea in Fountainhall re-
late to Spreol ;
*♦ May 14, 1G79, Mr John Spreul in
Glasgow upon suspicion was brought before
them, and because he shiftal to call ii the mur-
der of the bishop, and to tell who lodged with
hifl] tbe night ai\f r the mui^er happened ; he
WIS threaicued with the boots, but at Icogtli be
iatisfied them.
«■* June to, 1681. Criminal Court, John
Spreul being pannelled for treason, and that
diet being deserted against him, and a new
lunimona of treason given him in tbe very
court, at the bar, by a Iterald in hif^ coat, with
adnnd of trumpet, for being with the rebels at
Mb wet! bridge, (though he prod u ceil testifi-
cates that he was in f refanil all that time,) and
for being prenent at Cargill'» excommunicating
of the kmg. (but naked presence here was not
trea^i^Mmble, without some farther concourse
and accession,) and it being all edged for hiiii,
that Imog put to the tortiirci and having per-
Ci^ai4 JasTiciARi*, S. 0. N.Keina tentain prfe-
torin Burgi de Edinburgh «t»xto die men-
fiis Juuii 16B1, per honorabiles viru«,
RichanJum Maitland de Dudilop, Justici-
arioe, Cleric uni, Rohertum Do milium da
Nairnt Dominos Jacobtm Foul is de Co*
lintoun, Davidem Balfour de Forret, et
Davidem Falconer de Newtoun, Commie-
sionarios Justiciariae dicti S. D. N. Regis,
Carta legitime affirmata.
Intran
John Spreull, appothecary in Glaigowe, pfi-
soncT.
Ifidyted and accused for rjsing aod joining
in arinei with the rebclLs at BothweUbrige IQ
Jmie 1679, in manner mentkiDed in bis Dittay.
Petitwer^^i^ir George M*Kenzie of Ro«e-
baugb, our aorereigne lord's Advoeate,
Procurators in Defence, — Mr* Walter Prill-
The lords for screrml causes raoveing tbera
deserted and be thir presents deserts tb« dytA
umplieiter :
The lf»r*]s continue tbe dyet againit Robett
Ferguson of Letterpin till Fryday ni^rt.
severed therein without confession of ih:' crimes
laid to his clmrge, the same purged all liie
preceditig indicia et pr(tsampti(mc^ that urged
Lira, so that be can never be questioned oa
tli«se again, except new presumptions should .
emerge against him ; as was found in 166'ii in
the case of Tosback of MoruTaird, accused for
buniing tbe to^ve^ of Frendraught. It Nva* an-
\ siTere^r by the advocate, that there wei e tarlher
presuraptions t/ua eum gravahant^ which arc
* nofiter venieutes ad notitiam/ 2do, His de-
nial in the torture could never purge, becatise
these who examined birri in the toiture had no
lM>wer nor commission iVom the privy council
to ask these questions at him, and he wa^ not
bound to have answered beyond their warrant ;
(and yet it woukl have been thought presump-
tion enough in him to have sought to Imnt ibcm
to their commission.) Tlie criminal lurtls re-
pelled tbe dc'fenci% and found the torture purged
not the preceding iVjf/icia.
**Onihe 13th June, the said John Spreul
was tried at the criminal court, and prolsaiioa
led against him, who deponed iliey saw one
I called Jobn^prcul at Boiliwell bridgts hut tbey
f. knew not if tbe pannel was he, and there being
■ another of that same name present in tbe court, ^
I (who eonfe&jied his Ixjing at BoihweU bt idge,
j and had t^ken the benefit ttf the indevnnity,) to'
whom all the tokens and descriptions they ifHve
agiced taore thaoto ibf pan&«l, uth^ colour af
727J STATE TRIALS, 33 C h abl fes II, 1 68 1 ,^Pro€eeding$ agaimi
■
I
CtRii Ju8ncL4RiJi S. D. N. Regis tenia in pnc-
lana Burgfi de Kdiuburirhf decimo die
Mrnsis Jiitiit, 1681, jier hot]orai>ile» viros
GuUelmtim, C'omitciii dc» tlutinsberrie
Ju*Jlidarli, {TP^t^rflcm Hirlianliini M ait-
land ds Duddo[i ioslicimas C'luncumi
Rfibeni, Doininiim dc Nairn, Doiuinits,
Jacobum Fuulrs de Colintoun, Davidem
Hulfour de Forretl, ei Davidem Falconer
dc NeMTtoun. Comittbsionarios Justjciariie
dictiS. D. IN. Regis. Curia, legitime
' Tntrait
John Spr fully ap|inihi?cary in Cilns^oii^e.
.1 Rtihtri Fdfu&on of Lettcrpin, prisoners in
he Toibaith ol' Edinburgh.
his KoTSC, his having^ a cap and not a hal, a
black ju*rukis 6i<.\ Tlje assize, upon this,
cleaiiJif d ami assoilzied him ; notwitlistanilinii;
wht^reof the king's advocate prucured an order,
from i\\*i pt'iv} coanvili lo detain him still in
pnson« till be g-ot u new iTidictment, which was
tho 3d, to wit, fi»r trea«sonable eJtpressioDs ut-
tered by him before the ciuunci!, such an re-
fusing to call Bolbwcll bridge a rebellion, or
the asisasHinaliug' iiod kittini^ the archbi«ihup a
mimler -. wbit h last Is no trests<fi>, thoii^^'h it be
a very perverse o;>iiiion.
*vOn the 4Mh June, the king^s advocate
having complained to ihe king's council t bat the
witnesses* ietl a^^ninst SprtMsl had prevtiritated
and deponed frJst ly, at les^t did eonciral ibeir
knowledjsfe : it nas moved by my lord Haddo
and apnioveii by the kio^i's advocatq, that wn-
ucsscs in such a case tm^ht be torturetl when
they vary, as n:cU as p^irlietf. This is indeet!
ttjjprreabit to the R, law, but does not suit Uie
^''nius of our nation* which looks upon the
toriure of the Boot^ as a baibarou<i reotedy ;
arjd yet of late it haih been fref[Ui^nity used
among' us. 1 think, however, thcM- wilucsses
deserve to be piiut^heth yet the *i&sizc &hou!d
not liKik upuu the icsluiionicsof $itieh witnirsses
as a full [irohntioii, not belri^ spontaneous aud
voliudury, wliero ilu-y eitlier are threatened
with the boots, or loiturcd.
»* Afar all this, on ibe t4ih July 1681,
Spreul 15* brouii^hl before the privy council, ami
fined in 9,000 nierks, for refu^ng- to depone
an en I hiii presence ut eotactiticles, the same
being- referred to bis oath coufoim lo the 2nd
act of Pari, ICiO ; and he was ordained to be
k€nt tg the Ba^s liU he paid it.^*
Wodrtiw says t
" I shal! end this ?ertion with an account of'
the prcce^fis ai:uln&i John 8preul, apothecary in
Glu.'^ji^ow, who was before the Justiciary June
this year, and give it at lionie leniy^th, both he-
cause it was afler torture, and uiade no httJe
noise j anil I havie distinct and attested ac-
Cfiunts of It, and he continued more than %ix
yean a clof»e prisoner al\er torture* This if en-
tieman tu yet alive uikr all his sore sufferings,
and I koQw his li^odesl^ will Dot allaw m^ m
Indyted and accused that wh«re notwith*^
standing he the common lawe, la we «f nati
luvves and act$» of parliament, and com
practit^ue of llvis kinj^dom, the ry*«tig' of
m;ijesiie5 subjects, or any uumher of
ihejoynirigand as^eudileiu!' tot^rtlur in
without and contraric to lirs
mand, wknand and authoritie, '^
assistiufT, receptin^, itttereonnniioiui^, or kr^
iny company, or correspondcnrf MTth suchr
rebelb, either with orwiihout 5 if|i
plieujrrofihcm ^f ilh lef iesof lutn j'J ,
annes, and funibbing them tvn '
powder, ball, or other lnuniti"i
dctQslabfc\ horrid, bynous Ana AtRrmiuxiiiv
cryme* ol' nbelhon, trcasam tud kse inttffitie,
and are punishable iriih fvrfaul litre aod cnhiit
g-ife lliat character of him which he df^jKrvrf
and thcietbre 1 sh^li only relate hi^
as iUey sl«nd in the punlic records, i
in^ some other hints which 1 hav© nr«U
vouchcfi.
" Mr Sprcufs 1 roubles becran very soon ifhir
Pentland. His father, Johii Spreul, merduit
in Pably, was fined by Middletou, ahhouj^
he had sQlTered tor his refusing the teodtir; ne
paid the one half of his fine, and being pro*
s**cut» <) for the other, or rather his retfivstaf
the declaration, he was forced, with ratay
other worthy* |>erKons, to abscond. ^Vhen ee-
neral Datziel came, a.s we have beard, to Kit*
marnock 1G07. a party of soidiera were Mot (0
Paisly, aud took Mr Spreul, whose sti^miigi
I am uiiw renting, prisoner, merely brcau«
he would not discover where his lathet wu,
At that time, after tnany terrible tbrcatoiofK
of beingf shot to death, roasted at a tire, tad m
like, and sume short confinement, he ivaidii>
missed.
*' In the year 1677, he was, ' * ' n!i«arf
and many «ther gentlemen, ci(f « mi
in Glasgow, of which som Utn
already given. Finding 1 df-
signed against all that con - ^
absented, and wa« with ->
persons denounced and iuf ; .
nothing w as laid to their ckiaige but mere n«o-
conformity,
'* This obliged him to quit his hoiiat md
sbop» and go abroad, so lifetimes to BiHIaiid,
France, aud Ireland, and merchandi7,e. H«
was in Ireluud with his ancle 51 r. James Alex*
ander in May 1679, and came over to feioot-
land after the scuffle at Dnm^clog in JIaoe, 1
and went to his house at Crav*ford's-dvk«J
where understand mg the conduct of the W«t J
country army, he hail no fraedom to jom tbetn,
though his own brother Jan es Spnul, and
two cousins, John Spreul writer, and Jobs
Spreul merchant in Glasgow, were with tlitm
in arms* His business obhged him to he with J
some in that army, but he never joined them*
** A tier the defeat nt Botbwel he abs(Conde(
again, however his wife and family was turned
out of his house and shop, and all the move*
abie« secured, ^Viihin % Uitk he retired W
729] STiVTE TRIALS, 33 Chakles H. 1681.— 5;prfK// ondErgyiM, [750
ol' \yit, land mid giHKis ; anti be the tbirrl act of
tbe4ir»t (karlbmefil ol kia^ James ibe rirst and
lliretlie aotl aeveiith act of his second parlia-
Hoflamlf a ntl stayed there some trine, nliere
li<?Anog' of the coatintted )»erseciUion in Sent-
huidf afift tjrrawiiig; Hi virions aitiong the suf-
trrers, he earner home 1680, with a ilesign to
brills^ (lis wife and family to Rotterdam.
** When lurkioGf ni Edinburi^b, Noreinber
1^, a B«vfre search was made for Mr. Cargil
antl faU fuhowers, and Mr. 8preul nas appre-
beiMteil bj major JoliofitoiKi uheii in bi^ hvil^
mad bis ^ods be bad bruu^rlit fi-om Holland
snx^ff by the party, cboug-b none of ttieni were
|iro>liibiteil. He was carried tuiit to the i^c-
l»eraJf and tiien t» the g-iiard at the Abbay,
wtirre Mr. SIrcne ami Archibald Stuart were
prisoners; wirh wboin be was carritd lui to
the Tollw>oth next day about nine of the clock
vlicu the couneil was convened.
** By the council retyisiers we have seen he
Vms exiimtued, November 13, but his answers
mre nol itiavrt, and tlierefore 1 shall give the
Vttlwlsaaee of what pns&cd as far as Mr Hpreul
rt»t ' " He was interrogate, Were
3 • X of the archbishop ? Aus, 1
was HI irt[;inti ai that time.^ — Que»t. Was it a
miinler? Arts. I kn#»w not, but by hearsay,
is dea<l, and catinDt judge ol'her men's
ipou hearsay. 1 am nu jiidge^ biiL in
etive judgmeot 1 would uui have done
canout approve it' — He was again
but do you not thiak it was murder?
vu«e me from ^foiug any furtb4?r, I
to (Xtridemn what I cannot approve,
te may bt- a righteous judgment of
^ there is a sjnttil hand of man, and
^f aihn(r«{ and Lidorethe one when 1 trem*
the othcn. — Quest. Were you at l>rum-
I was at Dublin then. — Quest.
w oulliing of the rebels rttiiug in
»v tit. I itt design? Ans, No; the first time
I h«arfl of* It wav in coming from Dublin to
^ '^ ly home, where 1 heard that
li resisted by the eouutry peo*
1 ► ■^'. — Quest. Was not tiiat re*
* Ana. t think not ; for i own the
of preaching the go$i))el, and I bear«
iatUi«*y dill was only in sell' defence. — Quest.
you at Bothwel with the n^bels f* Ans.
r my rrhini from Ireland I was at llaiutl'
king in money, and clearing counts
• I went through part of
. and sptike vrith some
iji^ N high-way was as free
» mm ; but I neither jotoed
^ -.;de!', tiooper, nor sohiier, —
Was tbut rising reWllion ? Ans, J
not call it rebclhoni i tliink il w'as a pro-
] ntceasity put on them l*»r their own
after Drimiclog. — ^Tbis coutii5i«ion of
waif urged to subscribi', but abs<dutcly
It. By the Kegistersi 1 6nd» * Mr.
il before the conned, Novemlier 15, con-
li he Has in company with Mr. Cargil
hur^h^ but will not discOTer ia what
ment and 14 act^ 6 par. k. Ja. ^d, and S5 aci
1st par. k. Ja. and hundreth furtie and fourtl»\l
act of the 12 par. k. Ja. d> It is statute tbftt-|
.- — . . . . — , ^_ »
^ house,' and adds, ^ That there tvas DOlhing'
* Hwixttbem biitsahtlations.' f
** Mr. 8preul having come from Ireland iii
the time of fioihwel, and being just now come
from Holland, and owning be bad been in
company with Mr. Cargil, the managers were
of opinion, that he could give them more in-.
Jorination; and now bemg got into the in-
humane way of putting people to the torturci
ami A. Stuart lieing examined this way, No-
vember 1% that same day the council pass th«
following Act: * The lords oi' his majesty *t
* privy council having good rca<^on to beUert,
' that there is a principle of murdering his ma^
* jjeaty, and ihose under htro» tor doing bis ma-
* jesty service, and a design of subverting the
* govern ment of churcti and state, entertained .
* and carried on by the fanatics, and particu-
* larly by Mr. Donald Cargd, Mr. Robert 31 ac*
* waird, and others their compticefi, and that
^ John Spreul and Robert Hamilton have been
* in accession thereunto, ordain them to be
* subjected to the torture, upon such interro*
* gatories as relate to these three points : t . By
* what reason and means that murdenng prin-
* oiplc is taught and carried on ; who were ac»
* cessory to the contrivance of murderiog ;
* who were to be murdered ; and also as to tne
* arcbblsht>p of 8t, Andrews's luurder. 2. If
* thiTe was any tiew rebellion intended; by
* whut means it was to be carried on; who
* were to bring bomti the arms ; it any be
' brought or bought, and by whom ; who were
* the contrivers and prorao:ers of the late re-
^ bellion at Both iv el bridge. 5. Who were
* their corrc?ipan dents abr>&ad and at home,
* particularly at London, or elsewhere ; what
* they k^iovv of bringing home or dispersing^
^ aeihtious pamphlets, and such other partiou-
* lars as relate to tho^c generals : and give full
* power and commission to the carls of Ar^gylc,
' Liolithgo«% Perth, and Queen sherry » trea-
* surer-deptite, regii^ter, advocate, jtistice>
' clerk, general DaUiel, lord CoUingtoun, and
^ Uaddo, to call and examine the said persons
^ In torture, u[KHk the said interrogatories, and
^ stich other as they shall find pertinent upon
^ the said heads, and report.*
*^ I tind no report in the council -booka, be*~-J
cause nothing was expiscate by torture, which
was not before acknowledged. Indeed thero
was notljing in this plot and murdering design,
but imagiimry fears » and therefore I shall; trom
other papers^ give some account of this tofturet
the queNtions proposed, and answers given by
Mr. iSpreul, as far as his memory could eenre
him afterwards lo write down.
^' The lord HiiUoun was ureses of thia com*
mittee, and the duke of Vorlc and many otfaeri
were preseJit. The pre«es Itdd Mr, Spretil,
Tliat it he would not tnake a moru ample con*
(ess ion than he liad done, and ttgn il, he be*,
bored to ot^derly the torture. Mr. 8pf«iil iiid«
T\TETTJa1-L : CiiAALfiilL l6Si.^Proceedings mgaiiui [732
-■wsi 34. imm T J Jar' -ewa^ .r^miw- -viltiiilie necvpt, manlaiiie, or sapplie rebelk,
. -c -afci* *^r r^ i:r>« -« »-ac"^ i«i'i -•« *»«h Wp, reiM« or counciU, or doe fkroor, or
3^^ 2r ?im- '' In March, auindiient fen in. which broaKht
«L -x^ '•Mad Mr. :Spreul to wme more troobk before hii
n«c ^ -iw • nai. anii » OcsKres a room herr. John Mor-
■laao s .» "^v. i »iuKir. was seDtenceil lo «he tor his \ma^
» .. • - 'u •( -t ( uuvviiiicie m tfms, an we soail heir. A
ner t« ^rtv. ^'^lU noBV tiait been already eiccuieii cfaieAr
-Mtt» •'siKs i :3e nukf >i' Y<irk s inaupiiian. ao4 soac of
ise ^s=s5« m "tv 'Kiuaz^Ts *vcre wiUinif' id Mew ihtf noB
S7V « •.w»^ :ne i%(Mir. At*coniiu^ty. -mtwienl drashii
**"<« - ■ etiuuo vre praiw»<«a -.o ius. vBi&if
— flM»v 'iib ' * ANui «iun. :ne •-umicsl wrmlu ancvre kia
». . -r jarr- -^--•^ u* eiuaed them uL^Mw^ailK
r- -St* -A -' "a:^"^. asuncfu i ^ceeuim; riom xia Bfiib-
,T--^ m« -x (Sk -ifsrn. ^ir W'tham Piis^Ka£k^
fue* v* ■' ^*»^"^- »Ti«» vas ;a 'tw iVMBB. ymm^lim
.*.;♦ •» •-•Ml --: 3 'I'lmv. r.o uwctwr. siibiio,
•• T ' ,«. _ .^-rH ij <Tiiic« Hurr3.v ndio-
«*. -■••» -aji wfta um ■© -sja aiy jieli-
III ■ ■MB«-» lA i?f*«i Af— ^omvi
. ; • ..-ju » --.nt.- ..i.. ._« -«^ i4 iQtrf? prc-
; -♦-r»'.L;f- i . 'zef^^'^re licMB
-- - . - . *. 1.^. ■•' i:>';.-: r 1.:.: -^ :,f a^
^. ^ .«.;.**» '-• .^x-... » ^ . ^ -. -■ '}'■■' -" ."-■ «ii'" *:.x: -..'V -;ji.TrW
%<- * ^^%k>*. «^ ( N>f <^ "M* ^f ''•■''*■ 1 •-•■*-^^ ''*^ I »m DO paiH^ I kite
t!r II \ lu "i I iiilMi^^X" ' "^^ ^oii^vd aaa u! :l. >r &i: ib^t^r .K^nitical, bloodr and oiir-
iUtd * '^^^^ . dens,' i^ujcipJei ; Mther my paicBtt, doi
STATE TRIALS, 35 CaAftLES IL l68 1 •— Spieull and Fergunin* [TSl
common lawc, iinikr tbr iialuc of fot (iiiilUi^
\yff^ land, aud gMod^ ; and ue the fyfk act oltltl
I or comfort, to oppin axtd ma*
iagiiiail tlte taa^*M mi^tie or the
I beard ever uiiglit me siu:U
^. A matsileiice fbUaived, and many
Mr. B|»reul sbouid have been
ft immediatchr. Jo a little, the
\ ilr, Spi t:al, if he tmd been at
some otber quesUao« reiattfe
f; wbich tbe juuinal declined ^vitig
i IQ^ iifice be was before the justiciary.
paioiil ooe word more of the petition ;
|irobftlile what he spoke at tliis time
ptiMOCutioo the more vioient before
' iry,*' % Wodn>w i<j3,
( an abstract of the proceed in|rK
riafy as they arc here printed,
i tbus :
I: Mr. 8)ireul was aent back agaifi to
'' a^e given tlie fuller accouut of tUin
i distioct a detail of tbereasonitij^s
filly because 1 was of opiuton, tlie
ch fell in thiii case, are ta many
tbeiii^ Qp^Mi beads common to se-
If «ifi^ert» in this period ; and the
' t noted lawyers on both bands^
I small light to the ca&es of torture,
1 oiNiAeasiant the refusal to si^n
id otber poiots not uncommon m
Bandea tue weight of the case ot
f wMcb deien'ffs a room here, the
ating' paxiriels, and the pains used
rpvrry ihto^ turn tothetr disadvantage,
figour now us^d in prosecutions will
Am if siicb efforts were made in this
^ tHieii so mitay able lawyers were pro-
fur tb^ pannei, we may easily guess
' nork was in the more ordinary pro-
^nitb poor ig^iiorant co«t*try people.
I Ibe lith of July, 1 find Mr. Spreul
"■ I writer in Edinburgh, hrougrht be-
' council, for being- present Pt lield
and tliey are found piitty of
Kbvtehan ministers preach, %vhen
beart^rs were witbout doors, as
I«C ftael And csaii?erse mMi intercom-
The matter was referred to
lis, which liiry r<. I using' ore found
. ^ireul was out of the kinfjrdoni at
} to conventicles ; and each
I tn life hundred pounds .^^terlin^,
! Bum, Mr, Npreul lay mx years
d, fnim liis lon^f continuance in
, lie htm yd the conipcllntiou of Uass
' , w Itereof he uttrAn not be nihamed.
ned with Mr. Spreul in the same
k the lOih of J imp, Robert l^'er^-
|V«piid 'tv of
fcn Mi^iHMi rui4t('MHtuii IS MMiluced
r and tbr lord a delay passant^ sen-
tiU Noviin*>' * i ''*'d no
iia m the Hei^istet ime
^vroibvr I suppose tL. was
^ 1687 sM otder is fraatrd in Liberate
Mr. SpreuL Farours ivere now shown to
prisoners, and after near sefeo yeai^ imprj
soamcnt, Mr. Spreul sent a Petition to tb
Council : which follows from the original,
* Whereas it is not unknown to your lord*!
' ships, bow that your lortl^hips* petitioner^ i
*■ his first imprisonment was put to the e^tre*
* mit^ of the torture two several tira^, the
* which having sustain ed^ was thereby asj^lied
* by the laws of this and all other nations.
* 1 nereafter when he was indicted, be wai
* also cleared by the verdict of the whole as*
* size, and tliereupon assalzied by the lords of
* the justiciary ; and at last being; libelled be-
* foi*e your lordbhiiis by bis majesty's advocate
^ who could prove notbing- against bimi yet
^ your lordsiiips beingf pleased to fine him, and
^ continue his imprisonment so long, because h»
^ had not freedom to de]jone upon the libel, tb#
* reasons whereof he could not, being not only
^ fjTom pounds in law, but especially from con>
* science, and bis obligation and respect to the
*■ Gospel of Jesu^ Christ, which are at more
^ lengtb expressed in his information, togetbcr
*■ with a touch at a lew of the great losses be
' bath sustained, both before and since his im-
* prison m en t (what by sea, the great fire at
' Glasgow, house and shop taken irorn hiswilb
* in his ab^nce, also by bad debtors, and
* thru ugh his imprisODraent at I is prescribed bj
' Jaw (that is due to him) after three years past,
' the gowls tuken from hvnj by major JohuNton
^ and the death of his wife, and other great ex-
< peaces since iih itoprisoninent, being tbes«
*' ax years and fife months) all which he buin»
^ lily olTereth to your lord^^hips^ consideration
* and pity.
* May it therefore please your lordships to
^ grant your lordships' petitioner libeity to fol-
* fow his bwtul calling in his native country,
*• at least iu any other nation where he may with
* U-st convenieocy, not that he pctitiuueth for
^ his own banishment (and no to l)c sold as a
« slave, the which he would not be ashamed of»
* for tiie Gospel's sake, if he be called of Uie
* Lord to it) but the liberty of a free born sub-
* ject IS that he humbly begs, at least liberty a
* competent time to sec if by hiw he cau obtain
* any thing of his debtors to maintain iiimself
* in jirison, seeing nothing hath been hitherto
* allowed bim out of the goods taken from
* bim by major Johuston« oeitlier out of tba
*'I>euuufy/"
^* Atay ] 5, The couneil grant the folio wiog
act of liberation.
* The lords of his majesty ^s privjf couoeU
* havitiu^ considered an uddre^ts made in behalf
' of' John Spreul aji#thecarv in Glaagow now
^ prisoner in the Isle of thelBass, supplicating
* for liberty, in regard of his majesty's latu
* gracious prtJclurnation, do heitb) give ordef
* and warrant to Charle« !^laitland Leutenant
^ Qovanior of the Isle of the Baai^ I0 set tlic
< Mid JahaHjKreul ai liberty, be I
7S5] STATE TRIALS. 35 Charles II. }69L^ProeeedmgM €gam$t [IX
lint session of his majesties first parliament,
it is declaireO, tliat it sball be bye treason to
' caution acted in tbe books of Council to ap-
< pear before the council once in June next,
• under tbe peualty of 1000/. Scots money, in
' case of lailie.'
" When this Order comes to tbe Bass, Mr.
Bpreul was unwilling to take his liberty upon
any terms that to him appeared inconsistent
with the truths he was suffering for ; and he
apprehended ttiis order involved him in an ap-
probation of the proclamation specified, which
fie was far from approvinc^. 80 much he
signified to the governor of the Bass, and con-
tinuing sometime in prison, till a letter came
over requiring the governor to set open doors
to him, and tell him he was at liberty to go or
fetay as he pleased. Whereupon after so long
imprisonment, he chose to come out under a
protestation against what be took to be wrong
ID the orders and proclamation, and went over
to Edinburgh,' ana waited on- the counsellors,
thanked them for allowing him liberty, and
verbally renewed his protest against tfie pro-
clamation and orders. Thus ended the long
tract ofsufierings this good man was under."
The kind's Proclamation was dated Feb. 12,
1687, and it was sent to the council inclosed in
a Letter of the same date. They were a& fol-
lows:
Kino's LErrER to tue Council, Feb. 12, 1G87.
< James R.
* Right trusty and right well-beloved cousin
and counscUcr, right trusty and ri«rht well-
beloved counsdler, right trusty uiid entirely
beloved cousins and counsellers, right trusty
and right wcU-beloved cousins and coun-
sdlers, right trusty and well-beloved cousins
and counsellers, right trusty and well-Moved
counsellers, and trusty and well-beloved coun-
sellers, we greet you well. Whereas, by our
letter of the 21st day of August last past, we
were graciously pleased to inform you of our
designs, in order to the case of our Koinan
Catholic subjects, unto which we had your
dutiful answer in some days tliereai\er ; we
have now thought fit to publish tliese our
royal intentions, and to uive an additional ease
to'tliose of tender consciences, so to convince
the world uf our inclinatiuns to moderation,
and to evidence that those of the clergy, Hho
have been regular, are our most particular
care, though we iiave given some case to
those whose principles we can with any safety
trust : we have at the same time expressed
our highest indignation a<^nst those ene-
mies of Christianity, as well as government
and human society, the field-cuuvcnliclcrs,
whom wc recommend to you to root out with
all the severities of our laws, and with the
most vigorous proaecution of our forces, it
being e(|ually our, and our people's concern,
to be rid of them. As for tne other particu-
lars ofourroyalprodamatioBhtre inclosedi
the subjects of this kingdom, or any nnnber
of them, more or lesse, upon any groond, or
' we doubt not but they will appear to you moEt
*" just and reasonable, as they do to us, and thit
' you will, in your respective capacities, mkiI
' and defend our roy ai rights and prerogativo,
' %vhich we are resolved to maintain io thit
' splendor and grcatnfss, which can on\y make
' them safe for us, supports for our friends,
* and terrors to our enemies. It is evident, ve
< do not mean to incroach on the consciences tf
* any, and what .ve will not do, we are resoM
* not to suffer in others : and therefore it iiour
* will and pleasure, that these our coniroiodf
< be forthwith obeyed, and that, in order there-
' unto, this our Proclamation be forlbwitii
* printed and publisned, in tlie usual mamcr
*• m such cases accustomed : and if aay ibill
■ be so bold as to shew any dislike of Ihsi wr
I procedure, we desire to be informed tbereof
>y y<H>> to the end we may convince the
' world that we are in earnest, assuring all, tint
' as we expect obedience tlierein, and a resdi-
< ness from you and all our juflicatmvs, to
' assert our rights, so it shall be oor caieoa til
' occasions, to shew our ro3'al favoois to all
* of you in general, and to every one ii firti-
* cular. For doing all these things M wril
* contained in tliis our letter as in our |vocla-
* mation aforesaid, these presents shall be to
' you, and all others respectively who may be
< therein any way concerned, a aufficient war-
* rant; and .so we bid you heartiTy larewrl.
< Given at our court at Whitrnall the liAt
* day of February 1686-7, and of ourreipi
' the third year.
* By his Majesty's CommaBd.'
Phoclamation, Feb. 12, 1087, or First Indol-
genoe.
< James JR.
' James 7, by the grace of Gml, kingf rf
* Scotland, England, France and Ireland, de-
' fender of the faith, &c. To all and SHodnr
* our good subjects, whom tht*e prcseoti, »
* or may concern, greeting. We bavin" tak»
' into otir royal consirlerati«>n the many Mid
* great ii>convenii?ncies which have happened
< to that our ancient kingdom of Scotland of
' late years, through the different pereuasioQS
* in the Christian religion, and the great hcati
* and animosities amongst the several pro-
* fessors thereof, to the ruin and decay of inde,
' wasting oi' lands, rxtinguisliing oi' chariirt
* contempt of the royal power, and convfrt ^
* of tnie religion, and tlie fear of God, inl»
* animositios," name, factious, and soiiictiiMS
* into sacrilege an<l treason ; and being «■
* solved, as mucli as in us lies, to unilj) tk«
* hearts and affections of our sulMects,to God«
« religion, to u* in layalty, ar.d to iheirncijjn"
' hours in Chr.stian love ;md diarity, ha«
* therefore tliou^ht fit to grant, and by ourij'
* vereign authority, prerogative royal, andab-
* solule power, which all our subjects ircJJ
* obey without reserve, do heiebj gire •*
(ttr} tTA'f £ TRIALS, as Cuabi us II. itiSKSpt^uli and F^i^mon, [73^
irtuilMHun-er, til ry««» or ci>iiljnae in
i» makmt |ioujCyarfr«rr» or to ifiAke-Hoj
* mmMa
*fcmma
in iirligioii afYerJittmeH,
' liiillf And ^j kevirat ri>niljtii)OS, re-
^ MirictiiMiftiin<i iinuUt^ v^U In
* llie ftm |»kM?»* wr I ;ite Uie
> anoilArato fHflsbj^Wn^ft, to i^^i la tbe;r
* |iHv«i£ housof, and tJi«i-« to bear »U siicli
> mluiMlm% ts eilber luire, f>r nvu wiUing to uc-
1 of our ijidttl|jf«aoe alteiiarly, uuii iiune
r« ittlthAl time the Hot aiii)' ililnif sVul or
r to the %vt\\ (Hid peace of our
«editioy8 ar traasoiaabla, under tho
pains (liesa ariniai iviil hnpoHi nor
» Offi lliay la pieauina to build oitetinfr-lioasefl,
< flrlotMB fiLUlumses or Jiayna, but only to
* flparcue to thetj* privaie liouaaiv «« mid ik, Iti
* the nuan tiiui\ it Udut royal will aod [liea-
* aura, lliai Ikld-coiivisiitiarx, and sucb as
^ ffWtfii 4)1' asarciaa ai CJiea, or tirhu &lmU
#^ Any «ri« aanat Of catAif a il llieiii, sluH be
* yvoaeciitad according io tlia ntaioat aarcrity
f of aiir laws, made agaonat thcm^ aeeiiig' imw
wetiilBieouitm orrebcltioa, ao nuich dts-
balJi prAC£«>ilihi. and ao mucb dtsturb-
' aiioe to tb«govaniuieiit, and iow HthiiHi, aHer
* tliia ^ir royai ladoifl^flAoc for teiider t^oij-
* ariwinn, tbm b no excuse li^. In like
* tannafy u« do bejreby tiilerate Qimkcrfi, to
' laMi and ^icareiae iu tilictr Ibrm, in any place
^ AT piaoai ap^oliltad fiic (heir worabip^ And
fjianiiiliiiBr tlicaareye andcrud lawa made
^^MatDift ituman Catbaltrs (tberein called
^Buiatv) Lii dje minority oi' otir ruynl ^nnd-
'TO^r ofgjonotuinemory, i»ithout liis con-
' aent, Hnd e^mUury to tlie duty of j^immI tub*
is^cegukla, and otiier anamiAa, tn
I aoi^Maiq;!!, Cl4Brmy•lfrv«at|7raad-
• Wi^met ^ucm Mary of " : '
^AMtTf mannii* imd< :
trealitfi, or l«ai(uea Mriib <
aalatoi, oramongat Utem^eii
. or
i ma-
' aels or)iiijrliiiin(ml,ciistoiDS or conslit^iliofia,
* madt! or cxiTuied actual soy of our Roman
* C»ibf»Iic «ybji.'Ct«> tn atiV Hj-p-' i ast. ta di
* intents a ud pm'p<Me»t) ntri*
* bition^ IhtTcin mrntjont ',
* Ibertitn *" be 'ukUiU'
* ftball, a» 1 I OUR fVw,
* a« any afuui i'j^lc
* not only to eixercUtj
* joy aiJ odicea, bem^c^
* sbtll tbink it to basto>>
* time ootning : navenbek
< |4«aaara, and we do ban <
* tbalt'- "* 'I'^'r hijjhest I
* cue 14S0US wo
* «*lir( ;;l they prt
UU, or to invatl
iL'i% iindei" ilu? ;
* tube indicted upon the riiV
< m>r aball tboy prt^ume 1 ^
* ceesions in the hiirb-streeU at any oi (^ur
* royal burgiis, under Ibe patns nooTcmen*
^ tioiied. And wberea^ the obe^liencc '
*• rice of our good sabjei;tiii^ due to i;
* alleg^iauce, and our soverei^ty, ami uiai nu
* law, custom or constitution, differc«t?t» in re-
* ligion, or other inured imcnt whatsoever, can
* exempt or diiolmrge the subjects from their
* native oblig:atLon8 and duty to the crown, or
'hinder u« from protecting' and ci
* them, iun on!iiuf to their sereral c^ ,
'and' leasure, nor restrain ub trom
*ootiU i.ible rijfbts and privi!e;rt*'! tipnn
Miiem, ur v&ciiiLte or annul tht ^
« taWe. vrhf»n they are made or y '
' I firing, tbtit some ^
wrp«t*'d by mrn ot^
, th»f dotb^d thi- V.
t and uauTp«ai»n^f a
and ifta<U
tboae (a^vs.
L the ent-
^flol aa aniiiat
* iMi'o I wbidi kwa ba
' l#GiOU|S«r, wiliinnt lU
* or a^y oi' Ihein, * ad :
pQikio** Ikat the pttji
ai #<Mfcr, were locnp^ihte (U
ntfbutil tnonafcby. We, t^f our eertain
' lttoit-ied9[f<*, *»nd lofv/ '♦xp<»r«»'f'.^'jp, kndwingf
^ts jitlnHit our ^ ;
untlf r the patks
la QO, aaid <
BiAuy
Cii ;hi o*" ';iS]uns»
d at»d faitbful atib|oet8
Mf by bazDrd
# lug', aMi BiAuy ol tiitii^ MtailT ioxing their
^ litto aod fiMttmeat in tfaolr dmuve, (Uiougii
# tf AB«ter Pilifioii) iod tiio uimloiMUioe of
^llieir BM^ieriiy, ^iS'^M' ^^ violonoaa and
AftmamiaoflliAfiioet violaaC abettora of Ibase,
# Iaws, do tbofofore^ witti4idnce and consent of
ffliff cooAicil, by our fioyorer
#^fraiQg«lnejiiyal, aiid ahaolrnte \
^jof and diftaUe all Lkvv£ or
TOIm X.
T39] STATE TRIALS, 33 Chakles IL iGSl.^Proceedinga ogainH pW
jcstiet fpeciall authoritie and approbation first
interponed thereto, and all his majesty's sub-
jects are discharged upon any ground, or pre-
text whatsoioever, to attempt any of these
thincfs under the naine of treaaoD- Nevirtbe-
lesse it is of reritie that the aaids John Sprenfl
and Tloliert Ferguson, having shacken off all
fear of God, respect and regard to his niajesuti
* such of them as we, or our privy council shall
'^ require so to do, shall take and swear the fol-
* lowing batlLallenarly.
M A. B. do acknowledge, testify and de-
* dare, that James 7, by the grace of God,
* kingof Scotland, England, France and Ire-
* Lind, defender of the faith, &c. is rightful
* king, and supreme governor of these r«Ums,
* and over all persons therein, and that it is un-
* lawful for subjects, on any pretence, or for
* any cause whatsoever, to nse in arms against
* him, or any commissionated by him, and
* that I shall never so rise in arms, nor assist
* an^ who shall so do« and that I shall never
' resist his power or authority, nor ever opp<Me
* his authority to his person, as I shall answer
* to God, but shall, to the utmost of my power,
* assist, defend and maintain him, his heirs
* and lawful successors, in the exercise of their
■ absolute power and authority, against all
■ deadly. So help me God.
* And seeing many of our good subjects
* have, before our pleasure, in these matters,
* was made public, mcurred the guilt appointed
* by the acts of parliament above mentioned, or
* others, we, by our authority, and absolute
* power, and prerogative royal abovementioned,
* of our certam knowledge, and innate mercy,
' give our ample and ftUl indemnity to all those
* of the Roman Catholic or popish religion, for
* all things by them done contrary to our Uiws
* or acts of parliament, made in any time past,
* relating to their religion, the worsnip and ex-
* ercise thereof, or for being Papists, Jesuits,
* or traffickers, for hearing or saving of mass,
' concealing of priests, or Jesuits, brewing th«r
' children catholics, at home or :U)road, or any
^ other thing, rite or doctrine, said, performed or
' maintoined by them, or any of them, and like-
* wise for holding or taking of places, employ-
* meats, or offices, contrary to any law or con-
* stitution, advices given to us, or our council,
* actions done, or generally any thing pcr-
* fonned or said SLgainst tne known mws of
* that our ancient kingdom ; excepting always
* from this our royal indcinnitv, all murders, os-
* sassinations, thefts, and such like other crimes
^ which never used to be comprehemlcd in our
* general acts of indemnity. And we com-
' mandand require all our judpfcs or others iHiu-
' cerued to explain this in the most ample sn)Bi<«
^ and meaning acts of indemnity at anytime lia\ «
^ contained ; declaring this shall ie as good
* to every one concerned, as if they had our
* royal panlon and remission under *our crcat
* seal or that kingdom. And likewise indem-
* uilyiiig our protestAnt subjects, from all pains
■ and penalties dup. for hearing or preaching in
* houses, providing there l>e no treasonable
* Kpecches uttered, in the said conventiitles,
* by thein, in which case the law is only to
' tm place against th« guilty , and none other
* present, providing also that ihcy reveal to
' any of our council tlie guilt so committnl;
' ns also excepting all fines, or eficcts of sen-
< tences already given. And likewise indem-
* nifying fully and freely all ouakers, for their
< meetings and worships, in all time past, pre-
< ceedmg the date of these presents, aiul we
* doubt not but our protestant subjects will gire
« then* assistance and concourse hereuutii, on
* all occasions, in tlieir respective capacities :
< in consideration whereof, and the ease those
* of our religion, and others, may have hereby,
* and for the encouragement of our protesuut
< bishops, and the regular clergy, and sach u
< have hitherto lived onlerly, we Uiink tit to
* declare, that it never was our principle, nor
« will we eversufier violence to be oiferedtoaoy
* man's conscience, nor will we use Ibree, or
*• invincible necessity against any man on the
' account of his persuasion, nor the proteitaDt
* reli^on, but will protect our bishops and olb«T
* mimsters in their functions, rights udpru-
* perties, and all our protestant sul^eok id Ibe
* free exercise of their protestant rdiywin
' the churches ; and that we will, and Mrebj
* promise, on our roval word, to maintain tac
< possessors of churcb-hmda formeriy betong-
' ing to abbeys, or other churchea or the Ca-
* tholic religion, in their full and free povei-
' sion and right, according to our laws and
< acts of pariiament, in tliat behalf, in all time
* coming ; and we will employ indifferently iR
* our subjects^ of all persuasions, so as woe
* sliall meet wiUi any discouragement on the
' account of his religion, but be advanced and
* esteemed by us, according to their seferal
' capacities and qualifications, so long as wr
* find charity and unity mainttined ; and if
*• any animosities shall arise, as we hope in
< God there will not, we will shew thesevewa
< effects of of our royal displeasure against tha
' banners or fbincnters thereof, secinjo^ therebv
' our subjects may he deprived of this gciiefal
* ease and sati'rfaction wc intend to all ol
* them, whost' |)r<)S]»crity, wealth and safety ii
* so much our royal cure, that we will ka«
' nothing undone Vhicli may procure tln-M
* hlcssinp:s for thorn. And lastly, to the emd ul
* our good suhjetts may have notic-- of this oui
* royal will and pleasure, wc do hereby com-
* miind our Lyon king at arms, and his liretliTO
* heralds, macers, pni-sevants, ai:d nie8sen<{er
< at arms, to make timeous proclamation thtlie
* of at the market-cro.ss of Kdiubiurgh ; a»
* liesidcs the priming and pn!»lishiiig of tbj
* our royal proclamation, it is our express wi
* and pleasure, that the same be past under th
* grrat seal of that our kingdom ;>cr suliMM
* without parsing any cllier seal or registc
* In order \0)erounto, this shall be to toe d
* rectors of our chanccllary, and their d<rpnt
^ tor ivritiug Ui« sama, and to our '
T41 J STATE TRIALS, 35CHABtES IL iGnL-^Sprrull and Fcrgusm. [74g
I and murdored bis ^race tbe late arcbbisliop ol*
■uthoritie and lawca, bes preaumed to comtifitt
wad is guilty ot'tlie said rrymes iu liuae fare as
John llcdlburof Kinlocli^ l>a%id Hiu-kstoun of
RlhilK and others, ha^ ing: roost ci'uellie kilied
'-Ibr eftUsiD^ our great seal atbi-esaid to be ap*
* pcndcd tbereuDto, a sutScieut wT^rraot.
• Given at o»fr court at Whitehall, ilie twelfth
* day of February, 16iJ6-T, and of our
^. * rvign the third vf-ar.
^w^ • By his Majesty's comroand,
^^^^ * M^LroED.
I^^^r * God sa?e the King.*
Km/
Ren.** AsfsWER to the KfNG, Feb, 24, 1687.
May it please your uiost sacred Majesty,
* Your Majtsty's coiiifnands are exacliy
otieyeiJf your royal prociaiuatiou is priuttfd
aod puUhshed, by which your majesty hatli
\«teii a furllier evidence of your favour antl
^btniofss to all your subjects. And we are
^Bpefuif that by your majesty's extraortUnary
^■IB of mercy to some, who have been too
^^■■dy on tuaoy occasions to abuse the cle-
Biencj of your royal predecessors, they wiii
* be at last convioced what they owe to so gra-
' cioiis a king ; aud If any shaU be still so ob-
- vtixiate as to make any v% rong use of vour qia-
' jcsty^s goodness, we do uuauiiuousry aiisure
' your niyjtity, that we vi iJl uiainraiu and as-
' sen your royat prerogaiives and authority «
' witb the hazard of our lives aud fortunes ; and
■ aQ of us shall to our several capacities do our
atmostf that your government may be easy
i. 10 all whom your majesty thinks worthy of
^ nr protection.
Te are very willing that your m^^ty's
te who are peaceable and loyal, may be
i and security, notwithstandincr of their
iion and private worship, and do con-
^ ifUm, that such of them as are, or shall be
' employed by your majesty in offices of trust,
civd or military, are siithcieotly secured by
yujiiv t,..,..^ty's authority and commibsion tor
^■t lug the same.
H > :i your majesty our most humble
' ^aoks, tor giving us your royal word tor
^ BWintaimng iXe church and our religion, as it
> ii now esUhlished by law, and rest satisfied,
' beliMSTixig your majesty ^s promise to be tbe
best and gjreatesi security we can have. We
' are, may it please your majesty, your ma*
'jeaty^a most humble, most faithful, and most
^ llbedient subjects and servants, Signed by the
earl of Perth lord hi«^h chancellor, the lord
archbisliop of 8t, Andrews, the lord arch-
hiaUop of Glasifow elect, tbe lord marquis of
AtJboielord keeper of tbe priyy seal, the duke
' €if Go?doD, the lord man^uis of Douglas, the
earl of Liulithgow^ the earl of Du n i term 1 rug,
the earl of 8trathmore, the earl of Lawder-
da^le, ihe earl of Southesqae, tbe esirl of Tra*
auair, the eari of Akrlie^ the earl of Balcarras,
be loni viscount of Tarbte, the lord viscount
ol8tratballaD, the lord Livingstone, the lord
KinsftJiil, lir Georgt liodiiiart 9f Camwttk
1 Si. Andrews, ihey to escape ^un tire and invoWa
others in their guilt, fled mto the westema
shy res and tb<jrc joyned in annes with the
' lord president of the session, mv John Dal-
*■ rvniple yuimger of Stair lord advocate, sir
*■ James rowlisof Colinlounlord juslire clerk ^
' sir John Lockhurtof Castlehill one of the se-
* nators of the colU^^ of justice, heutenaut go-
* neral James Douglas^ sir Andrew Ramsay of
* Abbotshall, major general John Graham of
' Clavei'house, and Andrew Wauchop of Nid-
* dry.
* And his majesty *s said privy council having^
' ordered, that the said letter should aflerwards
^ be signed by such of the counsellors as were
* not tlien present ; it was accordingly signed
* at Westminster by the earl of Murray, and
' the earl of Melford, principal secretaries of
* Slate for the said kiuf^dom, the carl of Arran,
* the earl of I) rum Ian ng, the earl of Winioun,
* the earl of Seafort, the eail of Ancram, aud
* tbe earl of Dumbaiton.*
In the following month the King again wrote
to the Council on the same subject :
King's Lettfr to the Council, March 31,
1087, or the Second Toleration.
* James R.
* Right trusty and right wdl-helored coiisia
* and counsellor, right trusty and right wdl-
* beloved counsellors, right trusty and entirely
* beloved cousins and counsellers, right trusty .
* and right well -beloved cousins and counsellers^
*■ right trusty and wiell beloved cousins and
* counsellers, right trusty and well-belo^ed
* cou9tns and counsellers, right trusty and
* well ^belored counsiellers, and trusty and well-
* beloved counsellers, Wm greet you welL
* Whereas by our letter of the first day of tbtt
* instant, amongst other things, we did recom*
» mend unto you to take care, that any of tha
* Presbyterians should not be allowed to preach,
*■ but sueh only as should bare your allow ano«
* for the same; and that they, at receiving tha
' indulgence therein meulioned, should talife
*■ the oath coniained in our proclamation, bear-
» iiig date the twelfth day ot February last past :
* these are therefore to let you know, thai
* thereby we meant such of them as did not
* formerly take the test, or any other oath ^ but
* if nevertheless, tbe Presbyterian preachei*
* do scruple to take the said oath, or any other
* oath whatsoever, and that you shaH find it
* reasonable or fit to grant them our indulgence,
' so as they desire it U(>on these terms: it is
* now our will and pleasure, aud we do hereby
* authorize and require you to grant them, or
* any of them, our said indulgence^ without
* being obliged to take or swear the oath in our
' said jiroclamation mentioned, or any other oath
* whatsoever, with power unto them, or any of
* them respectively f to enjoy the benefit of the
* said indulgencei (during our pleasure only)
* or flo loDg a# you ibalt tind that tlicy bebtf e
STATE ThIVLS, $3 CilAiLB^ If, IQii^PrHHiiHgi ggminti
ills Jobn Sjiretill, and llobot Fmgnstm ind | oTIIUf 167C>. efler mclitif aeli Of iMr <
ilUcrslher •''"»^'^^>"t's, under 1*'" """"-""' ""^'"rit^, mofl lr«fttcpfetaMi# AM
of Htihai , broUif r i s«%ef?iUI aetl ot'^ |iMlkMieill« OMlrtitii Idi
rn-iriiu. ^e II una bet 1 iir^ nriiMnratiseftanil «filllllWiff Atfr
' S went tuUiebTirglic ol Hnihcr- vaed oul hiSi*
j^ ilitT iipfiii the tueiilie*t«viui* day ^ ti of lini ittf , j
• thefTLffilfcs reernlnrJy mti\ |K?acei*bly, without
* nntharit)' and
* mem. I
< slidlbe t
* BJlVCtr- '
'e to us, f>r tttiy in
us in our pj*t?ni-
liftll, thetlurty
^:id yi'tmr rtfigii
' itie tkird j'fBjr*
•^ By Ills ifiiJGSty'iOfiiiniaiid*
CkiMc^hiin^ Jobtl Spred), the fittber of litis
John 5*pa-ull, I fiod in Wodrowtlte following
passagus :
" *Spplcrnber 14lii tO«3U. By oi^der of the
DommiltiH; of c$tik% .luhii Cirtibmu pruvrrvf oC
Cbsirinr and John 8preul tonn cletk, ihes*-
V. t T(^ ia)pn*iOtie<l in Ediiiburifli Tolbooth : both
?n fci'koMcil favtmrcm of the
!ul yet tlie-y were jiious ami
luLkt 10. Tbe Council piss an
r€ul.
oi' council consi*Jmfi|g:, That
^1 IWr
Hem lo tbe yovern-
1, be Vor eviijng^Uie
' for SIJITIC-
xt\y
fore tbo
Rntlietgleiij Mty ^>| i»oikld ha%cb««n
«%Illi what succeeded.
** llitberto ihe person*
uniu^d and cviitrac^ tuediti
of^ hud ct^nleuted iht^uisc^lFes
^'riu«>iis prcAGbed in -' *■ > -•
uimI |nv;»cber8 who •
nuiiibet*!
iiiifmiiil *n
mitton, ;
mo*ctJ, 1 I:
by them Uji tt leaUtuotty
the ffthr?. Tbe i*?ader ^v
of ^v I
Pap.
* the
* til^
* nv
* vi't ■■ ^^ ^ .
* intirmittes Aod t^ii>
* the Lord in hi'^
* lbt?tn to be di
* fuemie^s, Hi J
* therefore tb€
* to thr wo Hd 1
* rai.
* ail 1
duL
the .
;tiii\
ktliit
MSUM
>dd9-
siiMNi
&
* U[y Msi ibnt any person ^
JJittil of thr protec'tian v
ics of ll 1 1
ti> <Kirt» '
e, ordain
L bimst'll
»iU if 1 1 If
t ffiimltot
' and
U HM-il. UlIU"',
^^4; and not io
* *-Tbf« H'ntTpr ttr !(ie W«t t^r ScrjjhniT/*
STATE TRTAL9, 35 CiTAIiiKS 11* l€%l^SfreUU and FetgUiM. [74(1
moKt cracllie nmnlAr and kill sefenifl ofthmiy
ff^iHlflnr they and their Accomplicps, did
muonftblie w&vlny a small paitioot' hio
Aeii fbrcn unAir^the command of llifi
if ClaTerhHusc* at Londonhill, nud di«l
} nrost cnnvenlcnt day for makin*;^ thi«
-ance, beiiiif the fcnnivcrsnry day so
abnsed, and ugaiust which, amons^ other
, they were to testify. I am informed
T of Glasgow was the place where at
liey resolved to hare puhlishcd their
; but hearing the king's forces were
of tiiein come down from Lanerk, and
kbere, they altereil their resolution, and
» Hitthergleti a small royal bnrgh two
fnmi Glas&jfow.
ccordingly thej' came there in the nftrr-
Md extinguished the bonclirrs with
the dav.vn!4 solemnited, and at the
!t-eross, burnt the papers just now td he
wed in their t«»tiraonv, and reid »>«*'-
and then affix^rl npon tlie crv^i a rt»py of
llovring Declaration :
Decuuutiom ami Testimony of some of
be true Prcsbvtenan Parly in S-j. tl-n.!,
ttUished Qt UulhcrgieA, May 'iO, 1079,
M the Lord hath lieen pleasetl to keup and
irfe his intcrc<n in this land, by the tosti-
yof faithful witnesses from the ln^'m-
1^ ■» some in viw days have not hrrn
Mafi who, npon the greatest of haztirds,
iMded their testimony to the testimony
iMie vflio have ^one before them, and
I bkte suffered imprisonments, fming^,
shmvs, banishment, torttire and death
I ak evil and perfidious adversary to the
Ml and kingdom of our IjOhI Jesus Christ
iMland.
low we being pursued by the same ad-
ilry tor our li\C8, while ouuing the in-
•t of Christ aocoHing to his won), and
Mtional and solemn l^tie and covenants,
[e it our ihity (though unworthy, yet
Mg we are true members of the chnrch of
tkiid) to add our tesUmonV to those of
WRthtes who have gone befwe us, in
MHiPg against all things that have bceu
e piiMicI} hi pvcjuilict: of his inl(.'iTst fi-oiu
beainiiiiVg of the work of rcfbrniiition,
eMly fiom the yi*nr 16 in, downward
Ike year IGrjO. lUil more paiticularly
ttsmce, as
1. Against the art n-ciswry, for o^crtum-
ite Mhoir ro\ennnlctl rcfo; niatiosi.
I. A^rninMth'- arts for cici'tin;:;; and c.st:i-
limr ol' abj uiT-d pir la t-y .
lb Agahi^ th.a dfrt'laiTtlioii iiupofinl upon,
I iHMerffietl by :dl pcrs«)!ix in piiMic trust,
ne the cpveiiiiils are rciioniui'd and coa-
taM.
A. Against the a< t nnd doohnilion pub-
Hf il.Glas«ri)w, for 0)iiinr^ fA' tho fnllhful
A could not «:omjdy witli prflacy,
<ltHy 0OO aead uptvanls of thom were il-
Wn AMhn*
k AgitfMlthalprcsumpluouc; net for im-
and being assembled and convocat to the nam-
her of two or three thonsand men ki armet npoa
the day of J une, the said yenr, tb«
■ ■■•-11 ■ ■■ I 1 1 ■ I ■ ■ n w ■ ■ ■■■ mh..mM^ .
« posinff an holy anniversary day, as the j eall
« it, to be kept yearly upon th« 29th of Mar,
« as a day of rejoicing and thanksgiving for tM
« king's bhih end l-cstoration j whereby th#
« appointers l»ave intruded upon the Lord*e
« pretT»i»alive, and the observers have given the
« glory' to the creature that is due to our Lord
* Hedcemer, and rejoyced o^er the setting up
« an usurping power to the destroying the m-
* terest or Christ hi the land.
<« 6. Against the explicatory art 1(560, nnil
«the sacrilegious supremacy enacted ami
* established thereby.
" liastly. Against the acts of council, tlwir
« warrants and instructions for indnlgence, and
« p.]| other their sinful and unlawful acts, mads
« and executed by them, for promoting theif
« usurped snpremary.
" And for twifirmation of this onr testimony,
* we do ibit day, being the OQth of May 16Tn,
< puhlidv al the cross of Rnthenrlen, most
< justly 'bnm the aborementioncd acts, t»
* evidriirr our dislike and tiwtimony no;Aiiist
» the same, as ihty have unjustly, perfidiously,
* and prr<;nmptaously burned our sacred co-
* xcuauts.
" And Avc hope, none will take evrrplinn
« against our not subsrnbing this our testimony,
« being so sojemnlv jmbVwIH ; since we are
* always rraily to do m this as shall be judged
* necessary, by consent of the rest of our snf-
* fcring brethren in SiHUland." 2 Wodro-.v 43.
Mr. Laing, aOcr relating tlie u<»sas6inatioa of
Sharp, procetMls :
" Tlie assa«wination of a prc!at<» and privy
counsellor, uiij^hl be ovjirct: ;! too\j;itc. a s<;verc
inquisition ; but the c*^vo'/!i.iu:»il ^;a.: in^pirctl
with the movt frantic rov:':;i;p. 'J ho people
were pro!;ibit ?d ih;i u.^:? or pv.FC^ion cfarms;
and in the ]Morla:-,:ati<»ii t> disfovor the as-
sassins, thewhok-but's' of l':r.rtips was implj.
rate<l in ilio rrimiv Vir-M a?..! ;innn«l conven-
ticles were I'leclanvt to be treason. T.ie people
who attended woim iiii!in?c'tly i>i<l'?rcd to nc put
to the sword; i-.n;! \>hiMi the military were
employotl to o>:orii;;?;!iis sr.nijiiinarv pwclama-
ti»n, it uus iwt •i;fluM:i* t * pr.^tirl l!>f^ insurrec-
tion that ensuefl. The vv.rivr.'jtif 1»^ \vl»i( ]\ per-
secution alone hu<l nviiti-d, imited into larger
masses, and frf.:.i the very una us employed
to suppress then!, ncquirr-l tliu formidable ap-
pearance of a re'jjuiin- nrinv, au'l of a oautp, to
which none, exctpl fi(nii t!i? near vicinity, re*
pairetl iniarmnl. Parties contirjueil, during
the week, in arms, a^itaU'd by the murderers
of Sharp, who hat! sti ret'.y joinid them, and
impelled by their piciu hi !•» to something more
than defence. A parly of fourscore apnearedf
at Uutbei^len, on th(» iinni*«.rs:ny of the rc-
stonitiou; they bnrnt the staUiles and acta of
council restoring epificopacy, aud procU
STATE TRIALS, 53 Chirles I!. l6S\.~Proeeedings ag^kui
said S(A\n Sppetill, Robert Ferguson, and iher
aooompUcea did most treiuiottaKlie attack a
•Qiall partie f>f his majesties forces,, within ilie
liMiii GlaiK^we, Hy whom they and iher ac-
complices were delate and rcjiuls^i ; and «tiU
oontinuing- in lh<^r reb^Uioiia armt they did
awell and growe to the number of ten or twel? e
thousand* did n>hb, pilafre and search for
koree^anDes, powder, baU^ and other instni-
meiita of warr> throwout the ahyres of La-
nerk^ Air<?, Renfrewie^ and other shyrea of
this kiii^dome, and having marched to Ha*
miltotin they did take the boldnea upon them
t4i issue nrociaiiialions and print declarations
bearings toe treaaonabte grouuds of their re-
bellinn, did model), and forme themsekes in
troii(»s, companys, and reg-imenta, uameing'
collonctUi of ret^mentSf captaines of compa-
nies, cornmaoderu of ifonpg, and other officers
under the command of Robert Hamdboui),
and the blood ie and sacrcle^ious miirderera of
tlie late arch bb bop of Ht. Andrews* did trea*
sotittbly beat i^iarhes be drumes and take the
boldne^ and presumption upon them to send in
iher comini^ioners to the royalt earop, trea-
aooablie requyretng^ the subr ersion and over*
tumins of tna ^oremmeut of the church,
proudiie and insolently boasting of ther trea-
•onable arnaes, in which they and ther accom-
piicea did most treasonabire continue, unttll
the twentie second day of the said month of
an unsubscribed declaration as tlieir solemn
testimony againat the defection of the times.
A prudent {!;t)vernment might hafe dissembled
theia»ultf ordefen'ed the punishment for a few
days till their zeal had subsided, and their
GOo?euticle was dispersed. A violent g-overn-
ment is incapable either of reflection or delay.
Graham of Claverhonse, afterwarda the ccle-
braled riscount Dundee, was instructed to
ioisei or, on their resistance, to extirpate the
reb«la by thesnortl. NextfcJuuday he disco-
vdrcd and attacked their conreoticle on Ijou-
doun hilL Hit dragoons were defeated with
lorn by a detachmeot of undtiictplined iieasants,
and he WHS aldioct inlcrceptLHl himselt by the
gallant Clt^laud who was killed at the re>
Toluiiun ill the defejice of DimkckL Elated
perhaps witli ^uciress, and afraid to dlaporae or
to rt<turn to tht^ir humes^ they advanced to
Glasgow, where diey were repulsed at fii-st ;
Init while thetr numbers were still inconsidera-
ble atid easily dis.sipatfd| the town was eva-
cuateil, and the %vhole country was abandoned,
as if to permit the insunt^ciion to increase.
The privy comicil, so vigilant and prompt to
strike while the people were tranqud, I'ecalled
its forces to the capital when the pi o pie were
mwarily betrayed into an insurrection ; and
amidst t^ most rigorous prcpuratiom^ through*
out the rest of 84'otland, a severe administra-
tion appeared solicitous only to justify and to
tturich itself by the growing- mngnitude of the
rcTolt."
* As to tbis« see inthisCollrctioD Ibe case of
lajoes Mitcb«ll^ vol 6, p. turn*
June 167 f>, thathif m^peslifv forces
tacqne and a!tsault tbem at B<S(ttiwel*1
wher by GmVH billing on hia ma^csii^ an
ther numerous and rebellious army ws» i^
sifiat, routed and vanoutsbed, I^ykt^a th
satda John Hureull and Robert Feqruion« 1
the said month of June, and oil' and di*e
tymea sensyn did receipt^ supplie, and
comon with, and defend Mr. Hamuef An
iVIr. John Welsh, the bloodie mTirderva of d
late archbishop of Ht Andrews, Ifclr.
Cargili, the dcceaM Mr. Itit^ ban) CamfnNi,
and sundrie other noionoun tru j i ' : *he^
and in tocken of tl)e said John ^mjlt,
be hesconfasaed tlie samen bt^jtMr me kjfibfif
h is majesties pri vie council *. Th ro we doaof
* I have not met wriih any M\ account of
the extent of the powers eLi«rc£Mid or rtainiedhy
the Scotch l^fy Council,and of tiie foundatioa
of those powers respectively, whether prcscrip
tion, act of parliament or UBuruation, 4r
George Mackenzie writes tlius of tlic couairil ;
*^ Tlie affairs of this, as of all other nakiom^
are either such as concerti the policy of tkt
kingdom in geueral, or such as respect the 6m-
tributing of justice betwiirt private parties. Tht
policy of ^vemment of ilie kingdom ts rm-
lateil by bis majesty^s priry council, id Hkifib
the chancellor is president if h« be preMM,
but in his absence the president of the cooacil
presides. This office of president in tlu- iium.
cil is a distinct employment, and ii
the precedency from aJl the nobiUtf
ber of this J ndjc atnre is not defi n iu" , m • j m ^ , n-;
upon his majesty's commission; bui all Liv^
oniccrs of state are members of it, raiiautoj*
Jicii It has its own signet, and its lett«r<i pan
by a bill subscribfHl by any oneof th<
upon which warrant tlte letters are, s
veral forms, extended and subecribe^i by vat
clerk of the council, and they bear also to U
*ejt deliberatione dominorum secreti — - ' •
They must l>e executctl at least u\'
days, and a full copy mustbegivti
all diets here are |»eremptory and
continuation of days; the reason %^ j
^ ut reus veniat indtruct^is ad defciideooutu ;'
Whereas before the session, a short copv }%
sufficient, Itecause the summons in
to see, and a tttne allowed to aoswf^i
ai*e here so peremptory, thai if r
cited to a day whereii|ioa the '
if he appear at the day to wh
and take instruments at tliec>>
he will not be thereafter oblige«J vi uti
can he l>e denounced fugitii e tor h&t>tt aW
for seeing ii is peremptory agaiuat oiniftli
rea«ODabIe that it should be ptsremplacy for
him.
^* Where many parties are cit^d iks ddndsn
upon a bill to the council, any one or two wM
be allowed to aoswer for the rest, diey fiiidai^
cautbn, and etiactitig theaiaBlT«» 10 oe fiaUa
lor whatever shall l^ decerned ag^ostlboM
for whom they undertake : whicb pcsfilm h
granted if ao perftooa) ptmishnMnl hm wmiwM
I
W] STATE TRIAtS, 53 Charles IT
•bctfOfor fUMr^ir iafh«)r of t)»Ct dc€tl« above
: ' L nil aoci Rwbcrt
are tjuilty of
i^mi tbc (iefemicni ^ biu if citlier ihe com-
.» *K,.» t!ie crime ivUlin law
nl, liitfD the oft'eriug"
.1 , , will not be allow ccf,
ui scqui ilcbt't,* and no man
!v for siiiothfr, * nam nemo
II membmnira.* Tb<'pur-
'Wfi proeunitor* bul the de-
nnt, or wend a testifi-
iiul Awd conscic*nC€:
of ttny counsellor,
inKwrr fof any de-
^e defender will
MTitive upon his
^^i.» Ue received as if
Uiifm fttmv^ -ny bill for receivings
amiiiliaflt, po^^^^u^...: a counsellor, but in
**Tli#eottficil, by the first constitution, were
mim u tftJt« eof^iM)!nuc<^ of what concerned the
pmt pmce, and tvrrt^ neitUet judgfe« in civil
^atm^jtHH cnmi farasUit^^H^ infringed
"^Ok, 9t m^tvi V. i Hereof: but now tbat
jdieattm dotb, uiiikr Ihe notion of riots, and
WdMi of lb<? public jicttcc, bear too many
as* * 1 criniifJaL*'
Vi n of {\\o two crowns of En^-
itfJil ^rnment of the Utti^
**"' f>f it:^ Liu^^and ibe
"istpvetlmerdy
ir. Ijaiu£is (Mist
.» iluit brin^ ** at once a
^ cotincil oi Ktfite, it oeces-
•inji nr^nni'' '^ njnnirul: tlit jiidiriiilfunitTOUS
MR unified with lb* rveniiivp |io\vers of tbe
«r.f.. .,,.1.. j.^.. ( ., , ,. .,* ......... Tkot uofre-
a too, that
-^ -'f Uiis
pai -
, ^ veru-
laod, ivus tilt! «€crt't motive wbich
•1r nt)iUlui'«u*<bury to support the
fi Hjf union of lhi> two uiem-
Surh i\ boyif, Itowyver^
I ; -.irate
Stat,
tt i>i tiiiJi evcDt, 3h\ J^;imij'sac-
'"•Mat Ml aa follows :
Tiot ytt rnmplete, unlefs
U were establitbed in the
^U.tl iuxijj(dMUti«f Hitb ibe tcume Uw^ aiciiiitst
cniiie« Tbo motives of the 8«'oli]bh
OHM* 'JO union, to govern
I ^iMwii riuuciK exempt fh»TO
ex-
1 6ti.'^^prmn and Fergmm. [71
tiie crymca of trea«on, rebellion and otUer*
above mentioned) and are actors* airt and part
of the sanM*Dt which being found be ane aaajtCi
tained to the queen. Twenty -five member^
cluelly their own creatures, were appointed
conunissionet^ to distribute tlie equivalent ac-
cord iu£^ to their in*»t ructions; and as the wrttt
were directed, and the return* made to tht
privy council, the management of efeciioos,
And the nomination of the representatives to
both houses, were placed in their hands. Tbej
promised Godolphm ihe most unreserveil sup-
port ; \but the Squadroni^ party applied to the
whigs, to dissolve the administration of the
privy-eouncil trora which they were excluded
themselves. [Cuouini^ham, ii. 71. 7^*] The
situation of Scotland would have beeo infinitelj
worse than before the union, if an institution
were preserved which was at once a court of
justicci and a council of atate, wherein poher
miaat ever predominate over the laws. While
the legislature remained entire, its oppresaioii
was restrained, but if a distinct administratioo
were permitted to subsi^i, there was no power
in the nation to procure the redress of gtiev*
anoes from the British parliament : the cum*
IdaiDts and the applicatlouiiof the people \^oulil
lave been intercepted ; and to suppress their
murmurs, the privy-council must nave aooii
degenerated into the tyranny praclifeed in former
reig^ni*. [Hard wick's Slate Papen*, li. 473.
liumet, V. 300 — 7B.] From Oie same disin-
terested and enlifflitened views which pro-
duced the UTiionf the nbro^lioti of the privy -
council was concertcii by loril Homers, wfth
the principal whigs, A till waw introduced in
render the union more entire and complete.
The same privy -coundt was proposed for the
wliole iidaud ; the returns of elections were tti
bf! ti'ausfcrred to thp sheriffs; and the juris*
diction of the Scottish council was to be sup-
plied by justices of peace, an institution often
atteuii»ted Itut never accomplished, and by rt
gular circuits of the justiciary court, twice a
year. The administration opposed the bill|
a;;,- ' ' fi the Scottish siateRmen endea-
r(i< re a clamour at home ; but Uietet
tht — t^nt at the union was gratified
by Loieritwhich thev sustained.
n^
( arl of Mar to liis brother^
M8. m the Archives of the family.] At that
distance from the seat of government| ihey
mairitaioed Ihfit the disuflVction of the Hij^h-
landers and ppinctpftl fatnjlie'^, Incensed at an
union, rccpiired the \\ <"ttoo of the
privy -coundl ; bu» thcj. iwrt-i to re-
tain the !i;itii>u in a mistrabie *1. "a
thcmKelvrH and on the rinuvii, '\ ^
to the union wn- I to sob: mIc (he
sooner, if every n inction Here onoe
laiMU, W 041
etc J
P""""* '•> , and
Mu; i-, _..-..:.:- J...... itJ
ftes; tbrvu^ whiHQ aluua tccttiiiwa* ot>-
awnivenMry ot tbo Ufitou HUjj^ht imroduoo th«
■■' ,.^-
751] 5TATE TRIALS, 33 CnARjs^n U. l68 {.—Prdceedinga agaimt [75g
endured tlie vame two Bevcrall ijiMi, hem-
stantlie lu^uyed the cryine, and conaemieBtlit,
tlicy oaj^Iit to be puaishec] with forfaiiUurs of
lyflt land, and fjfocMls, tn the terror of others
to commit the like herealler.
Fersezeer. — Sir Georjfc M'Kenzie of Rose-
faau^h, oiir soveraiene lord'n Adfocate.
Prticurators in Defence for Sprruail. — Sir
Gnorge Lockhart, Air. Walter Pringle, Mr.
Jamra Daea, Mr. Aiexauder StvLuion, Mr.
Darid Thoris.
His Majesties Advocat produced a warrand
for perseweingp John Spreull and Robert Fer-
gason, whereof the tenor followes :
Edinburgu, 9 June 1681.
* The lords of his Majesty's privic couneill
' doe ordaine hiK majesties ad vocal to perscive a
* proces of forfaulture apfainst John Hprcidl
* merchant in Glasprowe, aiud Robert Fei'^uson
* of Letterpinc, before the iordti of his majesties
* jnatieiarie, for which this shall he his warrand.
* £xtract by me.— «&'r tubicrihilur
* W. Patcrson.'
His Majesties Advocat for obviating dcbat,
dcchfcres that he makes use of John SpreutPs
confession, lybelleil onlv as a mean of probatiou
to adminicufate, the olner probation to be led,
but does not insist upon that ouufrssion at this
tjrme, either as a cryme per sc, nor as a suffi-
cient mean of probation, without bein^ admi-
niculate as said is.
Mr. Walter Fringk for the pannal, alled^cs,
denying alwuys the lybcUaud tbe preiendit
eonfesAon, that the iKmuall cannot passe to the
knowIcd$|« of aue iuqucist, because it is of-
fered to be piovcu, that he bein^ oxuiiiined he ■
fore tlie lords of hi> oirijf.'kitics privit couixill
upon the same cryme, auu haviu;^- d< riv\>.l \\\m
tame, aud ail accV-wii'U tlicTclo, c^mI UKi.v.iUr
the lurlor '^ Uin;^ acUiilit to hi.?), auu huiii::;
same •.overfill -eiil tlirow^r'i lix \vln.l.' is'af/J.
So vu'.I-.Uil^s wfc ovir f^.■:ll:•^^ iiuMJiti:!;! u'.\x\ ;.;'-
feclwl h\ ijv.r ]K'r*oiiiil iiil'Jicsi, th;u iii. io<;.s ol'
a Vi'ii'riaiilc iiisliluliou v.i«s tlfploio;! bv tlusc
^ho Irid r>j.,.i.licei! the coii.-tit'.uic.i :uid \\\ii in-
depeii'lcM:.*: of their c.oi::i In v. iihriii a !»*»•:;■
of rc.:u :. [Li.'Uei-s fioiu ihi* -.w:^ oi*iViar lo Lis
brotltt:!-. ."^IS.] The c*.'.i.:l.i«iip*, l.iboiii'*. oi l!u'
priv\-(i.i.iiiLiL wciC usc'luP.v « .n;>!oyo.l In w-
calli'i(r \\\^ coin, and iu uiieitii;^ iu; Uc u.mi-
naiiiiii."
" 'i\»rmi\*,' siaj^s •Viiu.kcii::ii , '• i.-; se'ui.un ust'.'l I
with M.S. Iiccuhe sofac uUsttitiuW fu rsous do |
oft tinios d(;ny truth, whilsl oihcis v>'i;'i u;-(- ii-.:ii \
and liituruu.s conicsslur loar \\\\\x\ is iwA uu*-. |
And it isruLupoteut tJ notics but to il.r rouijcii,
or ju:.t:cis, to ust' torture in any r.Lsc, and
ther(.-rorc (iivy tuuud, tliat fcir W i;'.:»in jlal- ]
leuilrii, as ;*. Jiiptaiu, could not torture, ihouMh
it u.::» allf.(<4vd, that this was uu(-essr.ry suuio-
tinus I'm- kiiowin*^ the motions ot'tbc er.eiiiy.
ami ir.ijtht {•<* necessary and ;UUmtil iu bimir
c: .;.'-. «<i ^i.!iii-jrs, iur the* |;oixl of tin. coiiuuui:-
W;.'ul:!i. ViiiJ il:t^ i'oiiucil are vy tender iu tor •
turi% that thou:j;^h uiutiy presumptions ivere ad-
du;:ed against CiiU» Tbyrc, l:ngU«hAiNUi, bus-
by the luwe of tiiis, aiid all atlier
pected of murder and adultery, they refmori ta
torture him, albeit it was pressed sedously by
his majesty's advocate.
" It is a bnicard amongst Uie dodon, tkit
he who offers to abide tlie torture, purges ill
otlier prebumptions which can be adikioed
afi^ainst him; and yet Alejcander KenmdT
bein^ pursued for tbrn^jng some bondi, lul
nothing being adduced Tor proving the crinui,
save presumptions, ofiered to aUde thii tuctH%
but this was refused.
*' Torture likewise being adduced, pingv
all former presumptions which preceded tk
torture, if tlie person tortured doiywhstvai
objcpteil against him ; but yet be may be pat 10
the knowleflge of an inuuest, upon uev prt-
sumplions, as was founa atler a leanuid dt-
bate in the case of Toshoch, [See Z Hiuu^
Commentaries, 117 and 118] who was loitiiRd
for the alled^ed burmng the House of Frei-
draught, August l6o'i, for it was alkdgd, that
torture is intended lor brin<^ng the verily to
light, and as he had been condemned, if he'M
ounfest, so he should be as&^hed wboiiMeik-
nies, else no man would endure tlio tarian, il'
they were not ])crsuadcd, that u{MiB den*!
they should be cleared, butwuu!d coiifi^auil
not endure so much torment uunece5.%rily;
so that the in(|uibiliou would be the occsudoD of
much sin, and make men die with a lieiii thrir
mouth : au«l llierci'urc turtare is called * probotio
i.ltiiua,' vid. Ciiir. tpieat. 6 >. Yet 8|»ot, Mu-
v.t.U of CiiiUen , ii..d oilieio, wcio coiMlivniut^
iiJk/ i'Kii.e, upon ciin r piokititjn than »w
d.daei :! Uefore the loiim*.'.
*• i rL-iiH'!nl>:!i' i;. v.a ; di !i:it::d ia i^ountri!, anoo
J 'j r.ifT, ■ :" tiie \s'l St -v'-ju I itry uicn who w ertf cofl-
d»^:ii;u'd {\,\ trL\.soii n.i,Ilit aiu-r Ncnlence be
I. iLuicJ, 1-..1- cleaiinu v, iiu v.ero tbtir accom-
l-iiiTs ; nuu i'l \.v;s i'nwvl that they couiJ DOl,
* nam j'O.-.i i< n:;v...i;uu:>ni:m J.idicea I'uuclisiurt
'olr.tria;' jotiili iav.\ ltj :iri; of opiuion, tlitf
c v.-:i ailerbvi.t^.i'.'r, <\i.i.liiuts m.iy Iwlortuted
»• <?iie ol" ilk jiiivjitn^m of uiinoi's is» thil
liji-.y caviior h-.* '>-\i'\yc\. <\ to torture, ie«td»e
ti:n(UMhi.:»b i.diii „. liioir :i£'o and judffntfDti
u.lJvf liiL-iil hiil 9 v-.TTUi rZi «KiT.?rystf*t Irw ^
i^«-r« 7Xt Xf-.l-irx^iv ^rrriv. ICeioj^. dc q»Wll«
<•;>_) P. u'l. 'lel !-. o, iV. dct|UO*t^ JudgWW^
liiMisaUcu eiii\ <</ turiure such w are uad*
loniu-ei:. lViv.»:;s vory old were D«t ••
Ik- toriuiiAi, fur ii.e sauio rt»son, L. 3. ff. ■*
S. C. Siliau. \\ liieii v.:is by sonic exiradcd *•
woi.K ';, iick }H'i-MJtiK, and sueh as had b«*
eniiui.iit i'l ari\ nati<m for leariiin&f or olbtf
aii'i : hilt all ir:i.«> is arbitrary with us.
'• 'J'ljosi* ulio toriuie, if ilie pc^rson tortuiw
«'i.'. are puni.'.liable a>. nmrdtrcrs. but ihoutf*
lb/\ liienot, \i-\ by ihe civil law they wettJ pi»"
ni iiieil ' di-|KJi lutiJne in insulam,* or'by baaiv^
nn :it ; Uiid «vitl>. n^ tin \ are puuiiihedlbtOOUnk>f
to tilt- (piality ot the enuic."
763] STATE TRIALS, 3a Charles II- l6%l.^SpreuU and Fcrguion. [751
CttDDot be impaimaled nor condemned) ^ lur tbe
siune rfynie upoD any qcmt prubitiun. And
wbenfaii bis nifijesties adTOcat declarer that lie
Upon the subject of Torture, 9cc in this Col *
leclioti, Emlvn'» Preface^ p. xjcv. Vol. 1. p.
505, 1338, 'Vol: 2. pp. 773, 774, Vol 3, p,
371* Vol. «>- p. J 217 etstij. 8ee, tt»o, Huiiie's
CcNnmetitarics on the Cnoiinal Law o[' 8cot-
laiid^ Vol. 2. chap, Vi, s. 1. Mr. Rosi\ in his
•• Otservntiong on Mr. Fox^s Hi^toncai Work^*
Jfect. 5« p. 179i meolLous that two eases of Tor-
||b| ooGorred so lately »s tn thi^ tv\^ of Wil-
^IpHiie Ibird* Of the Froreeding^ in one of
PRie caaeshe has given the followiag llistoi-y
frutn the liecorda of the Scotch Privy Council:
ItTSiiS HESPECTINO THE APPUCATION OF
t
High
I uTLE m Scotland,
Sederunt^
Majesty 'i
Cora.
*prutD Unrig
jftrgyk
fct^iifard P.
SiTajtberlAnd
H^ Eglintone
^H^&rtoae
^HbassUt
VrLotbt&n
I, Fortar
AUGLST 4» 1690.
Btoir
L. Raith
L.Cardrosa
L. Umbven
M. ofBuHicrb
I^, Justice Clerk
L. AhcnTrbelt
l^arrd of Gtttnt
Laird of Blackbarony
L«ird of l^ \ cs
Kir GcorjEff Monro
La iff I of Br<»die
Mi^orGen. M'Kay
Pbra^much as thcr has been a treasonable
( UaUish plot ron» rived and carriwl on against
\ pcmonn their grovemment and their
cU. within this and the neic^hbonringf
s; and I hat tbcr is evident prpmimptions
and documenrs that Henry Na^ill Pain pri-
moer within their ca9»tle of Edinbitrgb
Kcndatl alias Morgan, Colin, John and Palrtck
Bellfl have bcfo accessory to, and in I ht* know-
ledge of such an unnatural and damniible con-
vpirac}' : Tiiercfore, and for detecting* and dis-
cawenng thereof, tber ma ties high com mis -
iioiier and the lords of pri^y counciU do or-
daine the Tortur to be put to the saids Henry
Nstf Ul Pain Kendall aliais Morgan n^
C^ilio, John, and Patrick Bells, in their own
lence, or a Cotnmittee to be appointed for
I •'Ifeci (Sic. Sub.) Melvill, Crawfurd, P. Ar-
, Southerland, Eglintoune, Lcfcd, Forfar,
dross, Ruthven, Balfour, G. Cani|)betl, C,
Cafiiubell, A. Murray, Jr Brodie, H. iMackay,
0« Moofo.
Al BdiQbufgH the lOth day of December 1690
yc€n«
Sederunt,
E. Cra^vfurd P.
£k HouiherLLiiid
£« Mortoune
jLCassils
Hi. Stair
inUitlt
TOLp X*
Lt Cardross
L. Cartnicbael
L. Ravilhj^
L. Abertirqtdiall
L, FonntanhalL
L. Blackharrony
Sir J«bn Uall
make9 only me of the preteudit cnntession, ly* ,
li«Ued upon as aue.admiuicle ot any other pr<»-.
bution, uhich is to be adduced, tlie paunall
The f»»llowiij{^ letter direct from hi* majesti* .
to the Privy Council I was read, ordered to bt.
recorded whereof the teoor follows :
8upra8crihitur.
Ri^lit tru!>tv <Hii1 intirely beloved coosint
and councillor/ 1 and right weell be-
loved cousins Divi 'IS, ng'ht irosty and
weell be!ove<l cotii^ine^ nad councillors, right
trusty and wcel beloved councillors, and trusty
and weell beloved oounnllors, wee greet you
wcell. WhereJis wo have full assurance upoa
undcninble evidence of a horrid plot! and con-
spiracy against our governraent, and the wboln
settlement otthat our ancitnt king"dom, for in*
troducio^ the authoritie of the late king Jamea
and Pti{>ery in these kingdoms, and setting up
au imtire new ft»rme of government, whereof
there has been sei'eral contrivers an(t managers,'
and Navill Pain, now prisoner in our castle or«l
Edinburgh, hath lykways been an instrument
in that conspiraqie, who having neither rclatioa-
nor business in Scotland, went thitber on pur*
pose to mtiintain a correspondence, and to ne-
gntiat and jiromott the plott: And it being
necessary for the security of our government,
and the peace and satistactiou of our good sob-
jects, that these foul designs be discovered ?
Therefore wc doe require you to make all legal
in qu trie into this matter ; and we have trans,
mitied several papers and documetits for your
information, some whereof have been reaif
amongst you ; and particularly wee dots re-
quire you to examine Na^dl Pemi strictly ; and
in case he prove obstinate or disengetiious that
you proceed against him to torture, with all
the rigxkur that the law allows iu such caisa» ;
and not doubting 3'our ready and vigorotm ap-
plications for the furder discovery of wte| so
much coDcems the public safety, we biK^ou
heartily fai-eweelL Given at our court ali^en-
singtoune, the 18th day of Noyenil>cr,j|avaj
(1C90) and ninety j'cars, and of our ritph th«
second year. By hii majesty's command (Sio
Sub.) MiLviLLE,
The lordaof his majesty*!! privte council doe
bcerby give order and warrand to lieut. coL
James Murray, lieut ^rernour of the ca«itk
of Edinburgh, and in his absence the nii^ com-
manding officer present, to bring along Navill
Pain prisoner in the said castle, in presence
of the provost of Edinburgh ane uf the said
lords their own number; o.nd that under ai*d
sufficient guard and hst the t^id Navill Pain in
presence of the saids lords, without admitting
any persoD whatsoever to speak w ith bim oa
the way as he comes from the said castle to
the said lords, or in the said coaitla before ho
come forth thereof
The above prisi^ner being brought to the bar,
and being scvei'al times removed artd called in
again, and being asked aever<i1 questions aneal
3 C
N
STATE TRIALS, 35 CttARLts U. iG&l.—FfwuiimgM ag^tm^
I
proicMi that he may be hesLvl against ttie To-
lerance of any such pretendit coafessUinf do-
uruvsjickDOiwIeiijxiuu^ iu
a ouDsplraeie acfainsl the ^veromeDt, and for
rrsloriii^ die fate kiim- Janie^, wberdot' the
counnt ha i irtroiigf 2nS evident presupiptions
of his knouledf^e ; he denied alk knoit'lei^e of
or ]icc< Sk»^ (one to tli€ forced conspiracie; and
the coundU Imving by the enrhi of Cratui'd,
theii" presideut for the t^ove, intimate lo the
prisoner that the couacin has certain and Kufii-
cient eviiiences of hi& kirmlrtlon of atid con-
ccme in the plott and t , aud Uierfor
rei)i(ire<l hitn to l»e iiicr* i I frank in his
cptifessione, oyrwAvct* llie> \inviid (in respect
of itic great ajid clear evidences i^kioat hiiii)
pvit hiui U» tlie turUirc ; and the prijwiner hav-
ing stil! refused to i*»ake aoy ackiMJuleilg^Mient^
and iti a boasliog roam r bid them dui^ with
his Uidy what ilihy pleased ; the eoimcdl re-
solved to proceed to torture; hut Hr&t C4dled tor
.|Hid read at the board (the prisoner beiusf re-
tno^ed) ane Ibroicr warrainl of coiiucdl for
pmtiuy; tbifi prisuuev utid others to torture, in
rti«i(>CCt of lliM * itLnt liri^sniiiJ.I Miiu; -"iiriSt
ihcin, sjgo* 1 mt
and hi teen 1" , \u-
It htiiiig ino?ed alt the hurv, Whcth«)^ Navill
Piiiu the piisfMJtr iia e:i .cngenuii y w
refusdt to aiiFiHct no-i^ i rj of ihv W-
lure h« i^ to he iiui lo ihi^ ai^Li, may h«i put
lo new torti^re d\p oiiuroiv -, lUr wMi/e went to
tli ' iwv^ lUiitr
^' ii|iOu in-
Itvio 4.iir'v> iii'i r<ii((i MU ur nviiu iikm', which
he ^liall Uv thii» u^^Ht mifno'^atf^ a(»oii.
.TJic priM»uer^ heiopf a^aiu hruu^ln in* usw
El«» the torture of tho liiunibi<^kius; aud
ig cjianiiued upon ^fveial miivroj^atorian'
^0S^ t<i tlie 1^ hole rK>pU«i c.
I>eceaibvr to, 1690.
Hit MAiiisTY^i AtyvocAP
the pannaU hadebein
tOllOVtdl| QpOl
ordinary phyaitians and chimnfeooa In sHad
trim ; the governour, lieui. goTrmour, or mtw
inferior officers of ttie sakl camtim bek^iiwi^
answerable for bis safe custody.
December 30, 1690.
SederurU^
D. Hamiltoune P*
E. Crafiird
E, Errol
E. f'asriJi
E. For/ar
Vjst-'t. Stair
L, Raith
l^, Cnrrttfr^haeH
I
L ^ .rdtftft
h. FmniiBiiilMll
L. BlackhaiTon)*
L. 8tcveiisooe
L. C*4inh »>»*«>
h. Kiiuliic
1. .V' ■ ■
ilneut thtf Petition iriven inio the lunlsi of
n. Haroileoitne P,
E. Crnfurd
£.1^1
K, MortfMiti
E. For!:!.
VUct, 8i.in-
The folbwinir letter direct from hiti i]i^|iitie
to the couiicell being this thiy read, yn$ »•
dercil tol^e recorded, whcreot the tenor iutlowi:
Suhscrihitur
W. R,
Right trusty ai»d entirely befffrctl rmHfue
and councillor, i ' i u-
vrerl MufMl t
trusly afi4 vii%t;l
aud wpci beion**"!! it'Tnu.jui'j',, ^^e'.-
wreJ. Mliereaa w<} uiidersUntl |1
l^»tii»(> haih lieen mtm f«hstii];Ue aii
iiioiiij, when examined by you cone
lale plott and r<)r»>iUi !::*<' v a»jTiil>6t
^ownnnent, ii<
liooi* of favor i i
very i It is tUcreti»r our v,
wtt! doe heerhy authnnz
cause «ic*"iire hint iu <
pf f».*)n he Ku ill' red tf^
' with hioi in any mainu'i oi
1 keif^Kr^ and aliyo phisilian^ and
I uhei* alUmcil by you ; un
.So not iioubuoj; your r*:i'
th'^^e our eomioaudf, wt-c
u. .1. (ii^€u at onr ctn>
tbf
•f our mdtwu
*-i>f
all
til
of or.
rouiit.
<lyeur Hy h\
H^
Tlw» lonhi of ihclr majriily *s pHv v roati::il m
V
rlmt ihf
(il uncle
iiHture ;
if:
Jlid -:--,-. ---.^ ■.'^- ^ , .._, . .^^ ... .-Kr..-ir.'iK
Mm femt hberty l*i ntttnd him, ai,
dfniMftancr^ may L-ndarr^^r i^^
tfccrtiiiTf humbly craving ttieir iD to ahoiv him
tll^ Itenf fite of open prison e. anil to -^iJovv lua
ordiaarv ptii^itians aud f-hirur^ion^ to attend
hyat, sm*'»' tlw^y oply fonfd kno»v his constitn-
tinne, .- irs: The lord?* of
t*ieir II 1 b}:?!!!"" t i.iHiiJer-
II
'^:kl fhiy of Dcftember in
H illitl'! K^r lti4 111 lo «:i tts V
,JI..|I'-
^ lords, lioe heitrby v(x;on%4neud lo (\te gover-
nor of the cnatle of Kdiiihnrtfh nher** ibf »*»4
Nnvill Pai.uei^ j uid in ab^^
I tovt-rnor Ihcv and uan
' ner of May except his keeper
' ^ftui and (ibiiiitliin^ when aJIou
.TfiT] STATE TRIALS, 33 Charlbs U, l6n.^$prtuU and FergVMon. [758
ftndtlmt }^m9
Mon t<» ^e Gryiu«« )iWU<y)f and in the torlur
karfg Jgwyed ^V yet ttat could Dot iiifere
^Mm wJbiidmX'^ i ut' tbo iiannall, since
1K>1!B«&*8 owix |fr.4 kriidoiottsiMM 4kitii obstiDiicie
-flfiedcDtcoirefiiMinit h Ith liiiii c?%ecf)t ]k]a keeper^
md afeo pli hen al-
lofved b) iUi- hes fur-
ther pkiAsiii'e.^ (.Sit^^Mi;. ^ llAiuiiloun P,
Cmtunl, Errol» 8t«ir, Raitht t'ardr*i«s.
Camiicjfeaet, C\ Cain^ibcU, A. Muiruy.
ITiiTno HTtst vol jm. ITI, 172, Ediiih.
«• nf York's be-
hftv I irid{What be
sa^s nti tin; subjeti, I'* a ntosl ^trikiug* jflautm-
tion of the truth of Mr. Laing^s remark cittd in
a note to vol. 8, p. 135, of this Collection) after
siivmir ^mt " his IreatmeDt of the enthusmstft
t»: tinewhat riyjorous ;" adds, *vlt is
^ei • it thnt he sometintf s a-ssistod at the
|ton »nj til criminals, and looked on with triin-
^pDHt^ aM if he wtTc cunsiilt-Tinpr soroe curious
^Ijienment.'' In the note he rete« to 1 BurDet
583 (see the passujife quoted vol. 6, p. 1922)
ftnd In 2 VViidmw, I6"j, He says, '* this last au-
thor^ who L2i much the httler authnni}', ni^n-
pn only one histance, that of Spreul, which
to have been an extraordinary OfH^" i
f I »m in doubt what is ht^re meant by
dinary instJincc , ' * M v. Liiin^^ *s ol>ser'
_^lpon this matter is valuable, und exhi-
tm euriouii instance of the disiiigenuousnes^s
Ol'sir John Dalrymple,
^H^* Hurne considci's Spreulc's as an extraor-
^■ani,' ca*ie. He was examined on the ordi-
^fry questio'is — was Sharp's death mnrrfer?
5cc. and on an imao^inary plot ta blow up the
palace together with tlie duke. Uulry mplein-
foTtns us that Wodrovv had ^iiitd rredit by
vppeahnif to the council records, which be, sir
Jo&n, had examined, but found no rpason for
the imputation that the duke attended when
was torturt'd. In the first place, al-
iri i the acts of council, in which its pro-
■kdiug^were never inserted, are still preserved,
^B council records from 1r578 to August liWz^
^Bofili inspected by Wodrow, have been anibis*
Hpfrom the public offices above fourwrore years.
^Kondly, Wodrow does not appeal to the coun-
cil record, hut to the more unsuspicious testi-
mony of Spreule himself^ who was aliFe when
he wrote. Tlie council record is transcribed
by ^Vadrow ; but as the duke's attendance was
Toluntar}'^ bis name is not inserted in the com-
iDittee appointed to Buperinteud the torture*"
In this place it may be excusable to resume
the topic of Burnet's veracity, in proof of which
I hare just now fallen upon a remarkable tcs.
timooy. Tlie bishop (See vol. 5^ p. 1501) and
after 6im ftlr. Laing^ (see vol. 6, p. 1371,) re-
late, that the conviction of the marquis of Ar-
^yle was produced by a base peHidiou!^ com-
OKinicalMio bv >Io«k of aonie iettera written to
h iiu by Atgy fe . 31r . Lain^ (note 1 , ) a t the end
of the fburui volume of bis Hii»tory, asnerts
llw tnilk of thia §Kt, and in refutation of an
ahould be of advaniiMfe lo him^
tiotonty to tnak '
was a way to t* :
objection which had l»eeD made in the Biogra-
jilua to tlic titofemenL, he corroborau/s the re-
ference to Uarnet by otlu^ni, and thini adds tlte |
tet^timony iu favour of Burnet h hich 1 tiav« ^
transcribotl iiituthis \\oik* Hce vol. 0, p. U^*t» |
8inct' the f mblicsinon of Mr, Lt^iui^'d Hiitor^^
Mr, RofcL' has in liis " Observaiiuut on Mr.
Fox's Historical Work,'* ob|ected to the evi-
dence of Mouk's base tnlerpoe<iuon again*:i Ar-
gyle. It is always curious and 1 think al-
ways useful., to shew how^ihe truth will esmpe, j
tlie most sagacious minds which arc disposed 4
to rely too much on spi^eulalive urs^uments in
contradioiion to testiuionv- I iherefoit? insert
the whole which iMr, Uoec trtn^es, and then
subjoin ik most indi:3putable proof that bUbup
Burnet's reprcaeiilalion is not liilse.
The following' are Mr. Rosens reasonjug^
and cvideuctfs :
Charge aoainst Monil of HAViiio Ptrii?4i5iffiD
Evf|?EJJCE FOa THE Co^VlCTION OF THE
MaKUUIS or ARfTTLE.
" On considc) inir the evidence accessible to
every one, when Mr, Fox wn»te, respectiii^
the. share xMouk is represented to have had in tho
death of the marquis of Argyle, it wdl be found .
thai the char|^ ajraiust Ijiiu for so in famous ua j
»ct resteil, as has been obiierved, on the asscTtion 1
of bi-ijiop Burnet, which appears to have het^n 4
satisfactorily refuted by doctor Campl>ell, wlio,
uot^vithstanding hitj political principles, was |
most zealously attacheil t(j the fanuly of Ar-; |
y:y\i\ In hi»i Lives of the Admirals, he states, iii j
contradiction to thr ht«ihop, that the fact cannot 1
be true; in support of uliich he adduec«t rea-
sons, rei'ei riojf to prmd's not only of iHook*8 in-
nocence as to that charffe, but of his being an
advocate for mercy even to tlic regicides-: ami
fortlier arjjunicnti*, ^>ith refereuce to autho-
rities, are adduced by the same author, in the j
article of Cnmpbell (Art- hi bald) marquis or Ar- '
s^yle, in the Biug^rapjiiu Britanmca, ^ firufe
the falsehood of the change.
*♦ Wodrow, an historian zealously a^.icbed to
the Presbyteriaji cans<% m ho lived soon after
the event, and was remarkably tnduHirious in
searching records, and collectinti; anecdotes,
especially such as affectc<l li*aden> in ihiit party,
is entirely silent on the pomt. Tht: reliance,
however/ placed by Mr. Fox on this anecdote
appeared to call for a tiu'iher attentive inve*-
lig:aiiou, in order to asoertain the truth or IuIm;-
hood of it. Without renting:, therefore, on tha '
imlustry which had been apphtnl formerly, a
diligent search was tirst made amougiit the re-
eoma of the parhament, the oouucil, and tho
Justiciary in Sc4>tland, to discover whether any <
trace of* the ^ct alledi^red could be met with ia
the proceeding on the trial of tkip u^t|im :
TSgj STATE TRIALS, 55 CiiAntB$ If. Hiu^t^r0citdwg9 ageinsi [7*1
ubicli w»uld be cxtrcmelie prEJii4id«ll> both
to the interest of the commonwealth m the
I
rlhMroirerie of t*rjm€s;, and lo tht suiils a nil
oonscifiKX^ of cryromaU b deoying obstinatlie
fcut a ch«$m m those periodi rendered that
•much inttTeotual Recoorse was next bid lo
m collection of g(1 the pubUeationjf during the
civil WHr» and some yean after the rcitonition^
mip posed to be complete ; several of tbetn
written after lUe death of the marqui*, and
•ottie by penfoos dcFotcd to ht« mcuiory ;
giTiog accounts of wJiat waa most interesting
resj>©cting" him, and of uhat pasted at hia trial,
ana to his iatest monaeotj : in no one of which
k tliet'e die remolivt alhision to papei^ of any
•on having- been read, previously to passing
•eoiewce on lam, in ag^Tavalion o?his offence,
** No lietter succesji attended a most diligent
««arch in a collection oj'lhe books and pamph-
let*, J printed in ti»e re»(,''ijs of king Charles the
first Aodsoeoud, pi-c?^entetl by his Majesty to tlie
Britiiih Museum, in which there oi-c no less
thtto Mrven diiferent traeu respecting^ the trial
and execution of the marquiii, puhlished in
Lonilon and F • r itJGl; one intitaled
the laift proi lum, • cuntainiag^,
* inttr ttliuy ^ .^.... *..^, in ivhich he ex-
* pre»Kty dent« s having^ hud any epi^talury
* mt^^fcourse whh Cromwell, or "any of that
* iiec tt\ ri oiii* a rmy . '
*'Tht inqnirv, liou'ever, did not end there*
Thuria fmvin^ been rpferrf?d to
in the l: uuifra on the fmhject, an
^Jtamiuatioii \v,i^ uiude thmn^h thot vohiin)>
nou« collection, %»ht* her there had Ijeen any
communination between tlie manpii* ot Ar^yfe
and >Jonk ; but nothing' of the sort eonbrbe
found: on the confmry, there is, iM^sidtgthe
ni*sjjag>x referred to in the [iioi|raphiii, the
headij of a ili*.couric btuvtpu ihr r\jl«'<l kiny
*md Don John ofAuHtnn^ r.n the mnxt* of Scot-
laiitl irj (f]*r ( ,t,I .,r tn ,rs which uiViml ^In^ii^:
that no coniidentiul
\c\i high iuipurtance to
the ^¥ I iter us thW olhided to, were written by
llie man^uiii.
♦* Skinner, chaplain to Monk, in his Ltfc oflho
G^n<*ral, who would not hure ventured to niiiko
* ' ' i t ion, at a lime w]»eu the means of
* 4 i^ were in the hands oi every '>nr»
M» ^»»'l#t? i'» account of the Triul of tht- Itc^i-
fjdcf, nays, * In the number of the cormnw*
* sionef^, the iluke of Allicmnrle wns *«ne ;
* Vf JicK^in he gave tiie wrttbi one ni the gteat-
* I»t instruct » ^.f his n /Nr-^n.ni.i, . i\.,' ih>M;rHl
he knew more of tl , ^<,t'
ibe^e crjminak than I . j ii on
the bench, auil some o* to tin ttad t>een his
eafefii and uioiit inveterate enemief^, yet h»?
rafaicd nothing against ihem; hit left
[n to a fair trial, and the nneihodH ol iheir
wn defence ; when he could have offered
natter ajrainat som*? et'them thtit would have
: and, by a Rt-neroua
litSj he had ft- little be*
V vt m Ailbtir lliM«ki(^,
I
thtr accession, nor doea the lort^ir
lavre any more then a presumpliofi iff inMiacia,
* et ndu'mbratuin rentatfsi wpetacm ;' IM tail
i^ th»e in hiwe presumptions cane be takiB «f
'and afterwtinb procured bis estate a^lj
* owning a promise made to bini» when tboe
* was nu man amoDg them all uho had men
* malieioualy cx|»oeedor trsulitotft htm/
•* In ord«r, however, to le^re im» source of ia-
formaiion notriedi recourse was hftd,kBrt of afl,
to the uevvspapers of the tiine^ in whibb Mfti-
cular accounts of the proceedisigii an thenlsf
the marqCiis at Edtnbar|;rh were ghrcti Iran
day to day ; but not a »ylTable of the preteaM
eommunicaLion made by Monk uilo be tmadm
tliem. It is hardly possible lo oonoeive tbil
strong-er evidence could be found in any eaei to
eatabubh ant'iritive, than I a herr prodnccd Is
pi^ve the ' ' ' rd the hi ""g*.
Ueraustd. lies t% that bed
inf bnof d hiuiicii lu i ly on i i ' oioM
have beeu ituluced to for^^ cmi-
deni nation of Monk, and the cou!ic|ii€m lefm
censure upon him/^
And in his Appendix, 5Ir. Rose iosetii lli
folio ivin^ Articles :
Reputation of Bp- Burnet's Charcje a^wmt
iMonk, thai "
ter» of the
which led u* (u> i^oriiHuuiauoti i
the Biog^rt phia Britannicn.
** It 11* very clear, that what
relaleM, concerning the transit
timesi he mast have reeri^ttl tjuui nili*?
[)efiplc, and that scleral years after ; f«r at lU
tune of the mitrnui^ of Art;^yle*s death « he rootd
not be much abo^e vij^htcen ycurs old ; its
need not wonder, therefoi^, tliat ig tlie eir-
cniusUnces reluiinsr to great events, bcfiifv
those tin!t!», in whicli he *»'■«" » » Uum- i «|i^fv
in huNinei.s, he nii^ht be j if-'.
is all, tliut either is or ou^ \ : nkii
fur, 00 this occasion. After pTin|r us an so-
count of a very learned 8i»ecch pn p5irr<1 bv
the call of Loudf^u, aud which'
us, was fipokeu by huu in just. li.
marquis, the bishop procteilj* iliui*; * bat
* whdc ii wa«i very doubtfuK how it would bart
Vgoiic, I^lo.jk by an iotx i " ^
* bearc bed amory; his ki i
* that wcte writ by A^J>J^l«J iit hm.
* were hearty and /calcuH un their tn
' he sent donn ♦" s,r.ii,fMi ImJ
*■ were read in [
* tended, that 1; ,
* extorletl from him. Everj- btwi
* Mouk for seiKlfrij;'^ ihfsc do\Vfi, >.!
* betf»lvingthe■
* in. 'riiry %vi
^ to the earl ot .UtU ■
* waseii^l^ed in tli,
* the leUeri to be rtnti. J his
^ blatiied as contrary to the tawy
I * eiflee probatiou was'cl^ed »a both ^mtt, iiui
STATE TRIALS, 33 Charles IL l6%l.^SpreuU and Fergmon. [76f
b]f etcmr (mibatiim * et cedit presuinptio ?eri-
* lAtis,* sa Ihat by iliesaifie c<]D4e<pience tortor
can l>e tuken oil by a clear probation « as pre-
•umptions c&n be, and judges aod mag^stmts,
* the readinj^ of tbem silenc^ all larther de*
* bate. All his frienrjs went oat : aod he was
* coodtitnnt^d as lariiilly of treason. The mnr-
* qui« of Oilcmtroae only refused li> vote, fie
* owned he bad too much resentment to judsr^
* iQ that matter. It was dosii^aed be shoiiid be
* bsD^^ed as the maitiui^ of Montrose bad been ;
* but it wasearrkd, that heslioidd bebeheadeil,
* and ibat his bead sboidd beset up where lord
* Montrose's bad l)cen set/ It is evident from
lieiiGe, that if our amhor*i accoiiut of tbc
matter be right, the marquis of Arg^^Ie bad
BOthiu^ to coroolairi of, for these letters sent
dowtiby Jlonkiixed the fact so fully uj>oii Uim^
ttial even his friends gave up hh defence, and
tritbdrew. Uat the marrjuts, when be receiv ed
■Mfence, ns well a** in the who|e ronrse of his
iMeiioe, iusi^ed, that he bad complied no far-
ther thai* other people bad done who were
tU^D hi^ judgeti ; and the same thing- he says iti
hit speech ; and beuce it is« that I m\\ apt to
believe, thn it here ia some mistake or misap-
Srcbension in this matter ; and that though
lonk miijht ^?e his assistance to ruin a man
^^0!«^ubiiitieii he might tear, and whose m-
^Hence be very wtW knew ; yet he nei-
^■^ sent down any such letter^ nor had any
^■jfeli to send j and in support of this opinion, I
^mll offer my reasons, and draw them into the
tiUTQWcst compass possible. (. This mutter
Wfts very narrowly looked into at the time it
liaippened ; has been very carefully reviewed
and accounts of it have been given by
of opposite sentiments ; yet none of
5 mention Monk^s letters. The great mi-
Ditten of those times, and those who were
decpert ID the taking the mari|uis^s life, re-
eved, a» lar as they were able, all the minute!^
filing to his process, which they would not
b^e done, had he been convicted on the tes*
i>ny ot'ihe^e Inters, l>ecaufle, the recordinc"
had justtfieil their proceedings. ^ AD
.^Jlcndio^ to JHstity \hi: bnogin;^ the mar-
I to n triai ; condennning and puttiof^ blm
were €an?fu)ly p^ublished in Eng-
1, as bishop Ken net shows very largely ;
but nothing' is said of these letters. 8ir
G«orge Mackenzie ^vrote a vindication of the
gmernmem of king Charles 2, in Scotland, in
which he passes over entirely thb wholetrans-
^^lofi, whtch surely be would not have done,
fit could Imve been so ea*iily vindicated, as
Mo^ th«e letters^ Mr. Wodrow
i'\ thin^ he could meet with re-
LcsSt and has preserved the
neases that proved the mar-
.,,r....,v% but he says nothing of
tlonk** Icttctn, neither is there a syllable of
tbi<in in the Siute Trtnk *'\f t^nt «be trao-
f this passage Ti -l U,
ns to b« incousjsi^ r part of
bisbopV ^wo acdtiint ; fvr b« sdT«, die
beiogf obleidged and forced for the pubHek gond
to putt penons suBpect of g'uilt to tortor, hbwe
soon they are apiirehendit for preventing
farder danger. If tliis tortor be way of inqm-
king instructed his commisi^ioner not to pro-
ceed to sentence, or at least to execution,
till he had reviewed the proceedings ; for
which there liad been no occasion if the king
had known any thing of these bttersi since
what satistied tlie marquis's friends as to hit*
giiilt, would undoubtedly have satis6ed bis
majesty also upon that subject* 11 F, There are
some eircunistances in the account this prelate
g-ifcs of the mar*piis, which may easily in-
duce us to believe, that be naif ht be misled i»
re*T:anl to his story. As for instance, be meti-
lions hU being upon ill terms with his son Iwrd
l^rne*, and having actually had thoughts of
disinheriting him. Under the usurpation, it
was necessary for the marquis to dischiiin
the conduct oYlord l^rne for his own salety
and preservation ; but this never deceived the
people in power; and therefore it is strange,
that it should impose upon the bishop. In the
marquis's advice to his son and to the rest of
his cliildreu, there is nothing that looks that
way; and in tHenext article, we shall sr^, that
lortl Lome's zCal fitr his father, had like to
have cost him his otvn lite, as the marquis';i
coming to Ix^udon on his son*s letter, actttally
cost him his. Tlie bishop speaks of nti
attempt made by the marijuis to make his
escape out of the castle ; but he says, ihnt
fearing it might hasten his execufion, Itis
hfQi t failed him. It is not easy hi conceive
how this can be reconciled to the story of ,
IVIciuk's lelterst Before they came, the bisliop
ielb us the afl'air was very duubtfiil, and in
such a situation, it is not probiiUe the marquis
would attempt an escape. After sentence was
passetl he never was in the castle, and conse*
qitently could harp no opfiortunity of escaping
from thence. It js howevtr true, that he really
intentlcd an escape fWm llic castle, aod was
once in compleif; di>guise for that purpose, but
laid aside his ilejiitju, lK>cause he wotild not
desert the sentiments which he had espoused.
He chose rather to die likt* an honest man,
than to draw an imputation of guilt upon
his character by flight ; but )m conduct would
have been absurd, if his letters to Monk had
proved him already giulty, or even if he knew
such Ittlers had been in Monk's power. The
bishop says ejtpnis^sly, that the marquis wrote
bis letter to the king the Ai\y before Ills eace-
cuiion ; the ktter itself shews, that the mar-
quis wroie it thut very day. It seeius ther^<
fore posj^ible, that Bishop havtnnr ibis ac-
count from si*me good hand, in his opinion,
might set it down without considering tt very
cai'cfti 1 1 y . IV. \ V e hn v e m any I h i n*^ j* sa i d by
Clarendon and Echo id of the marqui$-s cor-
respondence'' ")th C'rivin"#.|l rinil mu* Hcnrj
Vane, thon < d us atiy .
proot^i. < » t(ick« and
o»bor writeri on UiAt ndc» ffij^ buD quite an«*
STATE TRIALS, 33CharL£s1L iS^l.^Ptweikigt agttmMt
I
mtioii flhf>okl i>reclM€l all fature prolAtioii, llicti
it li^hoovcU iieccssfti'lia to lollovi'e tUat eiUi«r
lliowagiftnki shoifl4 be forced to leave cryines
* by not putting' persons suspect
tlwr ekarBcter, and represent bitn as a peraoa
iiiwijs susu«ctcd and dre<ide«). We Unve M'
Uleyaai's had great disoovertes roade of the
corrasi^denoeiiiider Crofuwell'fi government ;
all which dearly pmves that the marqub of
Ar^'te waf never coDsiilercd in any otlter Ifgbt
than iliat of a conceakd royalist, as bis son^
the toiti Lorfie^ waa a declart^d one. There
is a Itftterof his to l<iiJif Charles 2, wliicb I
liave seen^ and is now in prints that proves be
bad a (fn^at oofrei.pondence witb king Cbarles
1 ^ and in wbicb he tells the kingf^ ibat no
body eonld restore htm bot the Prcabyterians ;
^bicb the kinf|[' afterwards found to be troe,
V, Lastly, It is ao far from beiii^ a fact,
that be bad any close connection with Monk
in the t Management of afTairs, while be go-
reined Heoiland, tbot I am able to prove be was
hit moftal enemy, and represented bim in the
lulflcleiat (joUmni to both the prouectors. He
accused him to t^Hiver as not desei-vio^ the
money that nas paid bim as a debt for
tiiainiainin<;: the Scots troops in Ireland upon
the cre<bt of the public faitb - and the follow-
ini^Wtk'i' will fully sbew, that be did not con-
sider his goitig* up to Richard's parliament as
^ compbance with that ^o\ emment, btit aa an
cntleafour to overturn it. Tbis letter is di-
rected to Tbnrbje, and rum I bus :
*-My Lord ;
My lord keei>er and myself have done our
it tn f^-et tliose men cbospu ) ou bftve wrote
; but my lordiif Ar^^yle and some others
* whom my lord ktvper i^lllacfiuajulyou with,
* have entit-avotn-fd all ihey can to g^et all
JfJf'olchmca chosen. But, ! doubt not, but
ere will be three cbcscn of those five you
at the names of; and 1 have taken nue,
tat as many as come out of this country,
rail be there with the first : and if the wrfts
which I hope ihev will, they
' to Dr. I'larjjes. iTbe murtjuis
If endeavours to be chosen,
hp is sheriif of Ai*g*vlcshire ;
IKS he will do his hii»huess*s
sTiuv L : i;; ^ il ; but whcu my lord keeper
comes up, he shall acquaint you wiib the
biisioeiis. Which is atl Jii present from
Your lordship's very bumble serf ant,
* Oi;irmot Monck/
^ IhtkeUh, Dec, 30, !<558/
I Dr CampheWi Lhu af (he Admirals.
'* Bui ihi bishop is not eoutent with barely
ehurafi is noWe person, he cbarijes
UimvviK iaiin^ erimes ; which ns they
relate tu 4be moi^t eminent actions of his life,
weshall briefly consider. The first is the imn-
*Ier of the marf)ms af Ari^Ie. This nobleman
wa«. (fuestiuaed before the parhament of 8cot-
pdy for c^tcurrii^ vrith ib« lite rebellious
to the torlor* or shottld
oalki and sut)cM ifinti
and i^De louse ■
iti^lhe future
r>mp in itmc, w 1
*«f A,.
powers. He pleailed, that he cocnpht^ villi
ibemoalVf and madea vary strtvng^ d^^lntwt
but the bWliup says that Mocik, h^ivincr 9^^m4
tetters of bis, wbidi fuTl.
cliofttious as well aa his
prevailiniL!' psnrty ; be sent tu* ^mth
wam read in parliatueDt, mod I tch^
private friendsbip be brought tbt^ v^^^i ^um u^lbi
block. Now to this 1 say, I bat thefaetcfft*
not be ti'ue 6>r many reasons; ; 1 ahall Dientioi
only a iew. First, the marquis in bin dwftiiiff
complains, that be was surprtxed ioitobiii|
praseni at Uliver^ii proclatnatioo aa protcdot^
by g'eueral Plonk's sending for hitn lo iht
council, witbotit letting bim know wtiot «»
to be done. Would ue have rf»tfiplafii«i& af
tills, and have passed by the; hi ^«<omU
not this complaint have been r i Uitia
had been any such letters? Nii'otui^—Tla
marquis died with an ajipeal to God fur thesis-
tf'erity of his defence, and wrote a letter t«t llr
king-, nltirm;ng^ the same tbtnt;, a copy of Mrliich
I have seen. Would so wise -• "»* • !»tbe
marquis certainly was, have <i t, •
Buniet say s, hiH own letters haii ^ !>b'>
so plain, that bisfjiends had r
Third, — Tbi« does not at all ago
character. He was an advocate tor iiit^ruv w
the regicides in the House of Lords : hf rrv,
iitlent 00 the bench at the Old Lkn'
commisaioneil ti> try i h^'iu ; and , wlu
more to the purpose, be saved sir AnUuf Alto
Icriif^s bfe and estate, (tlie bitterest penooal
enemy he bad in the world) by owt;
mi§e to bim, whteh sinue say lie n»
Hi is seems to sbew^ him of no I>etni
Fourth,— There was no ooeasH>n f*^'
write any such lett*?rs, for Moi«l tu
Kn<;>laud ailer Oliver btn^ame i*
k burd to tntdcrstauti, why the m
uppty to bim in Scotland, when he <:vujii m
cAsily have uudienec of Cromwell in LaniKii
vviiere be often was. FUUi. — But the tbaog
is now out of floubt ; for by the ptbliralMRi
of Tburloe's papers it appears, t! ; tmir
eonsidereil the marquis in this 1 < _ t -i^
reiiresented bim as a secret tricnU lo itw Ma^
and an active enemy to the protector^ gwmo*
ment/'
In direr t and complete cootradiatiofi to aD
this, Kir Oeor^ Mackei:2ie, who had iMft
one of the procnratoi's fo\ the maniiii^ of A>*
gyle, (see the Lifi a-ojEit
prettxcd to his Wor«, , f-aw?
and Customs of BooliiMid in [Vtr
Part 2, Tit, 35. SL 3.) " i i
Arg'yie uas convicteii of ticsisoii <i
writteti by bim to gamml Monk,
ters being onlv subscribed by bim and aft
holography and the aobacrlption haviiw bM
proved 'j)or comparatiaQem ittenram'^wltkti
STATE TRIALS, 33 Ch AttES Il> ve^i.^^rcylt jmrf IWgfiHfH, £TBS
i ckmr
u pre-
•JlW Ct^tf^li <i<*uU, HHll ItOHC
woiiiil it he io tiic romnwin in-
rjdacc, to »c« Uimni> A
TfciH fitr ^Tf the? Mri »T
iise he
tkn y •
lie \M^^
KTor. IV iiL't ja maDy
Mid woiiW be terapteJl
' hjrilo- M'VMiii*', so ot) the other hand
' iW «x>crmioii weiihti, in 'jfcm^mlj, nor
lEiAn tri pitrti«iitai, could stidei*
ntiir hurt liy ihe misiiion, bid dmin
biiiff>iM'*( »dvo( ut« v«'nich usserts ooly^
fiui I I to a trv«H, efler torlor
', nr jiietiumpdoDs,
111 1«-' coulesses, are
«tie litcfraruni* is but a | n, and
' k'-^ and ensily imitated,
liffrr from Ttseli' at se-
Uf^Ijsm'^', ^ho hrul in hti! Hhtory noticed
li«Ua^ itiou tif iVir.
wmtn M Uuii^ii to pre*
in bistory uf a
r
xl lliaiulikj
KIT uk trr
^ i»,«»nt3irr
' of 1)
lioul ruioed
isigftctof ^ottiicil
t^iits wtf« the or*
I 'J iiiottent rdatin^ to
^t tbtT« in imw n new
uibkitm, wbichivill bi*
ipose Mid tntcmtfbre'
I ^ '^ pnvy couiKiil
hei) any periuo
' " ir^, Ihti
II fjud to
4 >Li Miiil ^viirLUteiil.^'
■ :r
[ majt^itit's Itinfj^
rcl lb) ULH:brt%
"Ml evidence, or
to \aw.
kcwAtcv
'■•we
<he torlor, i
% ftl|t4ly;t! to I I
rlcar substijtirnt |ir(>^»uiu)ji,
edo. His inajtf!itv*^^ advo<.*at docM Rs»eii that
tbe (UOst can b<* picadit in taw upuii ibut
jijrrouhd^ is Uiat no tumi be tried upotj the prin-
cipol and rhieflf poynts lor nbi^ti he ivus lor-
tored. But &a it is lliat iIh? pannnU wa^ never
lortored a|»(in tbe mime |M>>ut8 for Mrliich he is
no we to be tryed^ ibr he was (Ueu only tortored
upon hi» ucccsnoti to tbe kin ' - ■ i , ica-
lion , \m eorrBBpondeiice tt i n . v it K
the rebells un Holland suU .■ hiH
being in aceession to the keeping ^tic
out of the proelatnation, and >!r.
WeLsb upon that account, Wbei« <fv%«
ouly tu be tryed for hia being tr ^vith
the I'ebells at BothvrelbridjEinef Uaqiitlon tnttir,
and other places iu and alniut that place, anil
tvnie* which are points aJbsolutlje different from
these for which he was aubjecied to tortor.
3o. All that cane be pleadtt in such a case is
that wber a t»er5on tortored denys upon the
torlor he ought not thereafter to be tryed ^4^
lodem capite. Because ther by a deoyalJ he
clears him^lf and tbe judg-es, but this paonalf
would nt^ver dtfny upon the tortor tioraeknow*
led^ tlie judges,' but cOBlioited io Mie ili»tt|ierw
able obsHtiacie.
4to Thr r could be no nwemtf Io e^wnnine
it; itpori his acceswion inerelie ujwifi
tl'i I I and Im«* bt'in^al BothwcHhnilsfe,
and tiie piac^ aiijaf ent, Vc^'iOfte it i»i ofliricl
to be proven that |ir<rviousHe to his tortor h»
conf£«l bsi cry me clearlie and li^iidlie.
Sir C forte Lc^ckhari for the panDatl dujpfyii,
that the d* fence liumblie offered to the mrd-i
ofjualiciury in belialf of the pannall is in itself
io unansuerablic foundit upon the cominou
lawe» tbe lane and cuslomc of nati t the
opinion of the most eminent crimi ;.iQf
ami the practice 4j ft Iu; mo«it fainoii.? t<iu.i.}iTlbi
in £uropc, that it neither is nor cane be deklii
by tbe itrett lu-, < insisted ou in the re|dy« madft
be his I ' ] vocal to the said de&nce, for
imo. 1' 'utroverted, but if the atj<?u:*e^
in a crimtnaM lybell, of whatever nature or pur*
port the .su.inc be of, doc only make tiMiof n
[irt:suinpttve iirobation without sub^liug tha
jiantiall to tuttor, the bwe in that cAjie eomsi-
ders tbe concourse of udrointcles and presump*
tions julduccd be tbe accuser and ottered in be-
half of the pannaiL And theo the rule to tAW«
insiistcd on by mv lord advocst precedii ihm
* presuRiplio cetht vcritati* according to lb*
pregTjancie of ibe uthniuicles or pfcsutnptiooi
ur^i_d Hod made use of in behalf of or agaioal tht
p.inoall ; but vi hen the accusar in criminal fy-
btfik, nut truiiting to any probation tbftt b« Is
able to adduce a^in9tlhep«nii%li| dc^recurre
lo tittd make uio of tb« extraordiiiAr3^
7fi7J STATE TRIALS, 33 Chari-bs IK mu-^Proaedin^i itfotef
ef lortor« a^ t/tcdium exphrandi et indngundi i
^erittitaa^ iu which tortor, as Iwing^ that which
the laue lovks ypon to b*^ rti/tv^iits^ and hy
which llic* iiUiocf4»t is ai» oil opprest as iioceney
dtHco^ei^d, in that case Uie conimun principles
oi" law e wiU inc customes oK nutioiis has pro-
ceedit \uth tliaC e<[iiaUue of juslici?, that as in
Cfttse am* innocent person forccfl hy the ejttre^
milie and %iolcncti ot the tnrtor to conffsse tlj**
r.rvnn; (jt4i(MJ\ed to, he condemetl upon ittat
C4>iitf?isitiu, so the paritic of teosviu and the
ti^ualiiiL" ot juijilicA^ does absoluthc requyre tliat
^ ii the person subjected to tortor * p&tientia sun
I* ficerit vim tornienturum ahsolfendus est tion
f^Bolum nb instantia sed etiam a criniiBe,' and the
on i^ most evident^ because; the accuser by
uning' to that extraordinary and subsifiiarie
reinedi© of tortor, does place the wbolfi vigror
and effect of the affaire upon what shall be the
dTect of the tortor, and that whither the person
suhjetieil to the tortor coufesse the crime and
be cundenmed, or by induTeing^tbc violence or
tartor purge all utaner of probation that was
Lcompttent a^iust him as to the said cry me.
jdo. It is true that if cither the jud^e com-
rient or the pcrsevi er of the accusation doc
^ot fiobject the pannal to the tortor, nor inler-
^it>|T^ale hmi in the tortor " super ipso crimine et
* facli>* principalie but only {an lawyers express^
It) / pro ulteriore veritate indi^^anda as super
*■ mandutoribuij et adjiitoribus ci fautoribns vel
* circuQistantiis delictual a^TavaDt)hut;*intbat
! lawe allowea that the tortor cannot operat
I to the principal fact and critne, because as to
bat he was not subjected to the tortor ; hut that
oes not at all coDceiae the poynt iu question,
1 res|}ect it is positivelie oB'ered to he proven
hat this pannall was subjected to the tortor,
jOt upon any speciall conpie of particular pre-
punipiious exhibit and Jelyvcred to U\m, nor
'^iipon ibese special poynts coodescendit upon
by my lord advocat, but was subjected to a
mott violent tortor twice repeited super ipso
crimmt; and the principall deeds ly belled ;
aiid particular! ie was inteiTogat in the tortor if
1ie was not present witli the rebels at BotJiwet-
_ ddgtr, Hamilton, and Glas^jowe, and the other
" jjlacea lybell't, and upon ah which he su^ered
and endured the violence of the tortor and did
oowayes acknowledge these cry roes, and what
oia ht more absurd and unreasonable, and of
more dangerous consectuence to the live* of his
majesties subjects, than that persons accused as
guilty of cryines may in the first place be sub-
jccteil (be way ofsimplcexpiscationand try all)
to undergoe the niost horrible paine and vio-
lence of tortor, and notwithstanding that many
t\ !ni.^s tlier roeuibers may be toroe and lacerat,
'led for all ther live^, yea and accord-
I strength or weakness of ihcr temper
huy 1 uue the hazard of ther lives, that yet the
ame persons uotwathstanding- of ther suflTer-
n^ buch aiie extraordinary violaice of tortor,
hould not redeem themselves from the hazard
f fardtr tryall as to Uiese crymes : for if this
ioctrine be once laid doun as a fuudation of
^ erituioaU prooedor in any nfttiuUi the lirat eo-
quyries tshall be ever
tJie extraordmury vif*
lawe in no case alluM e» hiit as
Iraordinarie rcmrdic, nnd in xr
the issue when
is to depend and
itself of so extraui lUijav a <
and poticit^ of many nati'
does not at all a"
the Inst reraedir
'in% are to be (-
quytt, but the 1
other nations >:>.,;;
use of to this mearj
have undergone til »:
violence of the inrlor they arc^ eti
farder enquyries and trjalk as t^^
crymes,
3°. Ther 18 no fthadowe rtf prejudice to dil
publick interest, or to his !t I *»terf9ttMti
thefcryall and puniiditneiii "s, beom
the just and regular way '
comnetent, vix. That hfs
for tfiey bring pannalls to ir^uu iir*? m useiom
outmost enquyriefor probat'ioiif and if ifiorll
enquyrie and'diligeoce, ifv^ ^-^ .,,..,. -.^.,.t,,» ^
hade, in attrocious cry mr - i
of treason and other*, v, i ,:_ _ ,, u,-
crimima ejcctpta^ ther is then pUoe aa tbe Im
refugee to the extraordinary reoiedie of Urtar
for thetrytdl and confiction of those cry m««bt
in quocunq. ttalu procema tortor is made tat fi
he lawe, and llie common opinion oflaw^^en^
and the custotne of nations putt* that m«mifefil
and weight upon such ane ext, v tk-
lence and extremitie, that it ex i[.v>-'t
probation and all ft rder enquyne. 1f>ii limi
this deftance is do groundless iwsenion, btif^ii
received and owned by tlie opinion
greatest criminalists extant, and the
of the most famous trihunalls, the totxU
ticiary mt desired to cast their ey«
Farin, quest. 40. in tliat title ' ati ron^le*
' debeat tortnra et si detur tupr
* turn conserventOT purgat^ r. itiait*
* probatioufi.' Julius Clams, qae>l. (/$>. oom.
38. Whcr he expresslie atserts fhnt if umn
he once adhiliit, and if the pas
violence of the same, he docs j
of probation competent as Vj that
* quajii puram veritatera dixissc vide
as he says * quod communiter totui
* ita tc)]et ethane esse commuaem ob
' etiamsi delictum fuisiet cortt- -—
* pi-obatum ;* and thai upon th'
and reason, that it wcr utmi^i
hie, that alter pannals in <
tion and try all of crytne?* I
of their lives, and. at best had thrr mi
tome lacerat , and disinabled, they should hi
again subjected to new enquyhtns and tijiU
for tlie same crymes, and ihereaAer andeir^
punishment, which would be to sufibr dcmSK^
for the same cry me, and the same opinwa i*
also ac^serted by Gooieadus, cap* 1~ "*
tura Reurum,uum. *2t^: and who.
be the practice af the wliolejudic«tunc;> ^^ --^
q STATE TRIALS. S3 Crarles H. l6U.SpreuU and Fergmpn. [770
the said tletence, and certntnlie the case \wrm ts
jti fare stmnger term ♦ ' " ' , '-
jected to torlor upon t I
the steps ^rodnlionK uiui tm mij^iituct ?> ptiiuiu'r
thereto, anil in the ibrsaid case the pannull-
beiai^ fiubjccted upon a special 1 potDt ofnniba- *
lion, viz. one Domingo, who was ackluced'
ag^aiiiitt him, wlierea* here I her was no special I ♦
eoppie of any particular etideoces or pre- «
sumptions adduced or t'xbibit to the paunalU «
but he indefinitlic suhjected atid iuterro^t i
to the crjnie. And as to that pretcnre tLat«
the pannall before he wm tortorfid hade con* •
fest the cr^'Rie, as to himself, and was onlyt
tortoi-ed ns to his accomplices and other points *
not no we insisted on. It if answered it does •
not at all cleid the defence, but resolves in !,•
dcnyall thereof, that the paunall wa« not anh^
jecte<l to tortor *«r the crymea and fftt'U l^belN
ed, ivhicb it is oti'ered 1o be proven he \iras, and'
Iieir^g- proven injustice be out^ht to be aasrdyied, >
and as ihtTe is no audi [*rttendit conlessioti
|noduced in wriU under the pannaH's handy*
which ibo it were is in lawe no sutEcieut pro-
bation, as being hut extrajudiciaU, and cann<»l*'
be made use of as a mean of probation hefora "
the in<]uestf being contratr to tl)c act of patlia-
ment, so thou(/h iher wer a confession in writt^*
if the partie hade been subjecteci to the tortor
upon the criiue (which is impossible to believe^
that ever his Majesties Advocate either did or*
would suttVr) the extremitie and violence ot the*
tortor did in la^e and u|)on the giMirnds forsiaid*
take off and purge all manner of probatioo for *
ihc said crymc.
^do. It neitlicr b nor cane be sustained, with* <
out the endangering' of all mens hf es that the '
riepositions of witnesses cane be made use <d' to *
l^rove pretojidit confessions whereiipon to in-
ferrc jknnnalls g^ulltiencs, the confesston«i thcni- «
selves not bein-^ extant, lyke as when the pan- •
nuti uas desyrcd to subscribe it. paper contain- <
\ng his confession, be abHolutlie refused the *
same, so thiit the stiid pr tendit conlessioti '
cane never be oblrudii nor made use <d'.
His Maj€ity*t Advocate to leltthe wofJd see
the g-cntle government they are under in thi»
kind's reignc, declares that he will not insist
ujK)n the former point in its latitude, thf»u^l» he I
reaenes it still to his mnjestie to make use of, '
when it shall be necessar. But at present he .
declares (off consent) that it shall be relevanl [I
lor the pannall to prove that he was tortoied Jl
upon this vcric point by coAunand of the pHvy I
councill, and that this point of bis l»eing al^
Bothwelbridge, was one of those points upon i
which he was advertised; that he was to be .
subjected to the tortor and for refusing wherof J
any of the stroaks of torture was given him, .
And tiir verifieing of the contrair prodnccs tbe.j
Commission of Prrvie Councill itself, be vertue t
whereof he was tortnred, of the wUiilc the teooi^.J
f bllo^vs :
* Edinburgh the sexteint day of Noveintk«r i
*' 1680. The lords of his majesties privie couii- ^
* dll Uaviogr by fteyctral clear tefititxiouiet fouai
3D
^nrdonieof 8paiii, and thinks it is so just and
nVM rabble, tliftt he *dds tl)e*ie words * Et
^ fieite wUtn icententiam et conclusionem sem-
• |ier ten'v f' ■*■•: ^Ir^eknunc tirm iter teneot undo-
ndo et ab eo non esse re^si-
dutu ;,. j.„hidndo et consulendo/ and the
Mnca 19 Also the opinion of iii^my others as
^orpap. que^t. 1^5 De Etfeclu Tortune.
^H|^adenu<i in his * Prax. Uerum Crim. cap.
P^pp. de ('onfessione R<?orum in Tortnra,' and
'Ibe sftme autltors doe also cite the decisions of
I jibe most famous tribunalls and judicatories, as
m^ the »ame povnts, as may be eriileut upon
^Hrusall thereof^ and aa far ^ no positive law
^nd act of parliament in this kingdome for the
esc of tortor except in so fare as it is found it
upon custorne consonant to the laws and ens-
tocnes of other nations, and to the |>rinci]des of
the common lawc, so it is most juyt nnd rea-
■Ottable that the eflW i of lortOr W interpret in
"*"^ kingdom acctjrding to the principles of
Doo lawe and the lawes and cuslome*
^tJationSj and with that cr|ua)ilie of jut-
\ ^fttas con^^ions though extorted by the
— —e of tortor are * per se' sufficient to con-
, without any other probation, so the
SandextremUic oi" tortor being endured,
KC and take off all other maner of
Lykeasthe custome of this nation
\ ifayi contrair ; but most consonant with
the principles and grounds of lawe above men-
liMied, and the amhoritie of lawyers and the
prsetace of other nations in all crises where tli.;
I^was subjected to tortor, * 8U|>ei' ipso cri ^
Ifacto principalis^ and tint interrogalonly
_ rinsick points, as is evident IVom that
lease 111 thejournfilts and records of the
^court, annis 1635 and 16tJ3, of John
' I who was persewed a» gniUy of sta-
treason, for wilful I fyre raising and
the boui»e of Frcuflraught, \»herin
nail being subjected to tortor not sini-
to the whole matter of fact as it
I lybelled, but precislie upon this individnall
ftit, if he entered the tronse and vault, of
^ house of Frendraught, with a lighted candle
[his band, about ten or eleven o^clock at
bt, belor tlie house was burnt, which he
and being snbjbcted to tortor and
ndured the violence thereof, and tber-
ewed for the same cr^'me at the in-
\ nf sir Thomas Hope his"^ majestie's ad-
ate, and the said defence that he was sub-
' , and hade endured the extremitie and
of tortor being then plead, also the
^■dvoeai did urge the same grounds
on by ray lord advucat, and wer
^^emptorlie urgeil and presi to pr«>ceed
pretence of a newc probation, eitcr the
de long dependit from August till No-
feoaher and from then to February, and the
prif'ie councill ad wised with the said defence
%tbrit it did not concern e tlie whoU fiomts and
circurostan<'es lybelled, but only a (M>int having
aue wUengencie with the cry me itselt. The
jUkiiiocs diii:r tbey bade ruminated and long
cgpiMidiered^ ibey ocithrr did tier cotild repeU
STATE TRIALS, 35 Cb«1*R» tl, \6^U^Pro€eeiing9 agmmi \TH
I
I
I
■
■
I
77IJ
* tiiat they bate vene gooil reason to bt* l<?iir<*
♦tliftt there is a |^.riud»le of mo<'«^'* rin Mils
« nmjr^tie, and thosr under him t "^
* niajestieft service, ftitd a design -i J>g
* Iht- ^of era men I, both of cTiurcli mid state,
* intcrtained und carved on hy ihe Phaimtieks,
* nml particularly by Mr. Donald CararyU, Mr.
* Robert IVIacaullwir and others tlir r complires*
* und that J*»lin Sjtreidl and Robert Hamilton
* have liein in aciession tliereto. Tlipy or*
* daine the said John ^^prenll jmd Robert lla-
* milton, nowe prisonet-s^ to be subjecteil to the
* tortnre upon tJucU interog^ators as relnte to
* these three points *" wliicii they have good
* reason fii believer tbey ca»e give much light
'and discoTery, first, by vvbat rt-aion and
* imittues this murlherintj principle Is tantfbi and
* car^^ed on» who wet- acee&sorie to the con-
* tfivknL'e of tniirtheiiDgf, and who w^r to be
« muvthered, and abo tslo the lordSt, Andrews
* morther.
* 2do. If there was any netre rebelUoti io-
* tendit, by what nieaoes it was to be caryed oo»
* and who was to britigf home the armes^ or if
^ any b<? alreadie brought, or to be brou^rht, and
* by whom, or who wer the contrivers and
*■ promoters of the late rebeliiou at Butliwe^
* btJdge.
• 3W, Who wer thcr correspondents aljroail
* mnii at home, pai iMic «i London or dse wher,
' and what they knowe of brinji^io:^ home or
* dl«perseinq^ *editimis books or jmmphkthi ami
* such particular inltro^lors as relate to ijji'«4e
* larencrall : — and the saids lordii doc hereby
* g'ive full power and commission to the calk's
*of Argfvie, Lintithijow, Perth, and QuelnK-
* t>erie, the lords Ro!«ie, ThciMuuTr dcput,
* Hefifisler, Advocate Justice Cleik, Gcnemll
4 |v».^ 11 f M^Sutoun imd Haddo, to cult the sAkh
* *I !l iiiid Robert Hamilton, and torv-
* a;^..,.. ,M. ,ii in the torture upon the in!<*ro-
* giUnr^ forsaids, ami such oiber pnrtirulHr
* parti c ul ij r imeroj^fatoi's usthey shdU think per*
* cinent relattni^f to the forsaids eencrjill heads,
* and !o report to the couucil. Kxlnicl by me.
« Sic mtucriUiur* \\\ Patebson/
l^ir George LocfJiml^ for the pannaii du-
plycs, that the pretence insisted on in thei'eidye
I* most irrelevant, and fher is no necessitie that
the jtannal should oWfr io pforeany «uch*|nali^
fieatiouA, that he n a astoib'jcrymes
hbelkd by the uiii lie lords of privie
cottncilt, ithpioi^ MIL -LurK ihat he %vaii lorl«»K^J
by a committee, appoyntetl by the lonb of
Privie counciU, and iu ihcr presence examined
and interrogfat as to the crymes ly belled, and
the pannall was not in tlie least to examine or
consider w ho inteiTog'at hinr, thcr beinjf notliinj/,
more ar<linary thtn that cither the president of
the count-ill or any other conncelor present, will
interrogate and no laive e?erre«]iiYred ofjorelben
that (he pannall was de facto intero^jrat u^ion
the crvnicA nowe ly belled, as the pan null was,
and wGich i^ offered to be prtnen, and it ver
to change the cummitie with the dangrr o^'un*
juat and arbiti-ane and illegall pnxMHlor, to sutler
or allow the patmal ta be itilefriifal nfmwf
point that waa not w«rrantmlie« irtlliWi wd
pannall uas not only interrogul ufWHi thrcrriiMi
lybcdkd, but also the sameti wer mMifdail
imiwn up a? his preteiwlit eonfessiott, and tk
aramen itffered to him which he Mostd; mi
ti 'Is prfR'ur" canoej^
M, ivhirhci f^^f^'
I tmjfatora, bijt riiso n getiCfaBt ni
1 1 to be exatniued not w^y aa tnjw»*
tu in u uni rrt^ator^, but alto aalo wlial fW9
to the geoerall.
The InrrtRLocirpoi*
The LordiJii ^' ' ucc Ciji,
and Commisaio4 1 n mtf K^m^
sidered the dittay u' - -
dittay relevant^ and
Jit upon the t<
I ; .. . [1 of tne tirivie *
rand ilie pannall to nave b.
tion upon any of the cry in
dittay.
The lords continue this action anil caiwctlO
Monday next, ami ordaine the witoeiiaef f*^
a<i^ister!i to attend, ilk person under the ftaiPf'
two htindred mcrk$«
CrttiA Jc^fciAntB, 8. "D. N. ITrrrl^ trnti m
I "ra tnv'm r»urf;'> ili ^ ' '
t.:-rl](^ die IM*;ii>is .hf-
biles viros \^ 4^
(iueinKberrie,
Ititcharduiii BI J3
ciaria.' Clericmn ta<
NjiJrn, OomhK»i .»;;« nnjiMi iiri
linn-toun, Davbl^m Rn^fonf •
I>'avidein Falconer d' ^ - - *
LMrrni l\(\m' de
siouamsJubticiuriiuU. ^^
CHirih l^iliiue aiiirittata.
Infritn
John SpriuUf ApotbetTirie,
Hobcrt Fergumn^ of L^^ttftrpin, — Prifoncrt
IndylL-d and accused for the ' ^' -
son and rebellion mentioned in ■■
Pcritii'er^ — His mf\|fsiity *a Advocate.
Frocuraturi. — L''^ ante,
Mr» WaHfr Prlngh^ advocate, as Procuntof
for J-.ltn S.n,>.MU l!.,, MMt,r, .11 -.I1..-.J,^,., ll.Atft
is In
of Hi !.
thedefeiif I'an
nail take^ ^^^
eomtniwiou, an
bein sach a c.
mtttee hude th> r^ '■>, ij^. cUnr And
power to inters <i J H o,,* pnfinafV tipoi^
cry III ' ■ ' : ft^
conil til
eicpressite uupuwcrect lo mtenvgut ;ne j
STATE TRIALS, 33 Charles IL 1 68 1 ^^Sfreull and Ferguum. [774
nrdiy vis. By trhom, and who wer
▼en md pmiDotera of tlie late re-
Bothwelbndge. And by the third
the said commisiion, at tiic end
tj are expresslie impowered, to exa-
in the tortur, upon the foresaids in-
ly and such otber particular inter-
s thev ahall think pertinent relating
nesnus generall heads, from which
most efidentlie, that the commis-
ample and expres!$e, as that they
ve interrogat him if he was at Both-
, or a contriver, or promoter of tiie
liion, that being a most pertinent in-
and relating to the foresaid generall,
nmiall sotisumes. that he was ac-
intcrogat thereupon, and offers to
vtW Thores farder adds, That by the
liastun, the committie were appoynt-
Igea of the |)eninoncie of the other
rs, to be proposed to the pannall,
nid committie havioff iudged the
irtinent and propounded the same,
ring answered m the lortor theranent,
d the samen, his deuyall most ab-
, and the committie &re only answer-
ropounding thereof, in case it shall
to have bein ane interrogator, not
f the commission, which is impos-
ibe.
;^/ief iifDora/f oppons the Intcrlo-
d commission which bears no power
e him upon his own being ther. And
ition ot the commission offers po-
prove, That it was expi-esslie argued
udit in councill (in conlciuplation of
e)tliat he should not be interogat
nrn accession to Bothwelbridge, and
int thing was done in the committie,
e to conclude be unanimous consent
onid not be interrogat, upon his own
he rebellion timpUciter, which is now
;hing insisted on, and this intimat to
de severall tymes, so that tho ther
thing debatabU: in the generall, as
diis tuces it off.
\rge Loekhart oppons the commission,
n the pannall Joes again, and again,
amenta and protests, it may lye and
I the clerk's hands : and commissions
I ao bye and im|>ortant effects have
II tbe tortor of a person, ought not to
, * ex post facto,* to (flosses and inter-
L tbe commission being as clear as
■at it oontaines a generall warrant in
i iheyt mentioned : and as for these
i^hat the contrair was resolved and
,Id privie councill, and in the com-
li intiniat to tlie pannall, the allcadg-
i.wmji relevant because whatever was
r mofotA in privie councill, in law,
■Ular cs jndice quantum apparet
i' wmi tbe commission being under
l/tfMm ceuBciU's hand, it cannot be
taken away nor redargued by any probation of
what was argued, dchaied, or verltaliie concludit
in councill, and the same auiiwcr is re{>eitcd
to the argueing and dcbateing in the com-
mittie and intimation made to tlie pannall, Le-
cause the commission of its own nature bearing
a general clause, the committie might argue
aiirl intimat and ' ex' po&t facto' alter ther opi-
nion, and interrogat, and it is ane unanswerable
demonstration^ that the c(»mmittie's procedor
was 80 in respect it is positivclie offered to be
proven that the pannall was subjected to tortor,
upon the ground that he refused to signe the
confession, a& it was drawn up and oflered to
him, and that the confession wnieh was offered
did bear, amongst other articles, ane answer as
alieadge^, made be the pannel to the interuga-
tor, tutchin^ his own accession to tlie rebellion,
and certainlie it passes all naturall undeistand-
ing if this doe not evince that the pannall was
interrogat tutching his accession, and that the
committie approved the same, and that it
was drawen up as an article in his alleadgitd
confession, so that the defence upon the tortor,
neither is nor can be eleidit upon pretence of
the said commission.
The Lords Justice General!, Justice Clerk
and Commissioners of Justiciarie, having con«
sidered this with tlie former dclmte, they find
no newe matter alleadged for the pannell, and
therfor adhers to ther former interloquitor, and
remitts the dittay to tlie kuow ledge oif the as-
sysc as formerlie.
ASSISA.
John Trotter, merchant.
John Brown, merchant.
James Nicolson, merchant.
J<ihn Al*rala, armourer.
William Bannatyne, wreiter.
Francis Brown, vintiner.
John Lawe, goldsmith.
Charles Robertson, vintiner.
David Lindesay, late balyie.
William Lauder, turner.
Alexander Heid, goldsmilh.
James Middletouu, armourer.
David Robertson, vintiner.
William Steinson, late balyie.
Alexander Abercrombie, vmtiner.
The Assyse lawfullie swome \ no objectimi in
the contrair :
Robert Ferguson of Letterpine confesses he
was in armes with the rebells at Both wel- bridge
in June 1079, and acknowledges that it was a
rebellion, and comes in the king's will and
throwes himself on his mercie, and begs par-
don, and is jontcnt to take the bond* never to
* Concerning this bond, Wodrow, af\er re-
latiitg the removal to Kdinbur^h of the pri-
soners taken at and after the afiair at Bothwel,
writes thus :
" After the prisoners were thus lodg^ed in
the Grayiriars church -yard, the council met
775] STATE TRULS, $5 Gharlrs II. iesi-^ProcuiingM agmui [77(
rvie in armes against the king' nor his autho-
rities and has renounced and is content to re-
Bounce his estate in the king's favours.
Sic subscribitur^ U. Ferguson.
His Majesties Advocate for Probatione against
John Spreull adduced,
John I^yif^fChinirgeon, in Hamiltoun, aged
twentie seven years, purged of partiall councill,
serera] times while the duke of Monmouth
iras in the city, and then moderate measures
were pursued. After several meetings, it was
amed ujjon, that a hond should be offered to
an the prisoners in the church-yard, upon the
sienin? of which they were to be set at liberty.
jii 1 find it noticed, that a good many of them
had not the oifer of it at first, the managers
resolving that some huddreds of them should
be sedt to the plantations, as thny gave out, to
satisfy the king in this matter. But I have
reason to think the king would have been very
•asjr in this ; and the reserve was rather to
satisfy themselves, and the cruel disiiosition
of too many of the clergy. We have seen
that transportation was first proposed by the
council.
** What I meet iiiih in the Council Register
as to this bond, is, July 4, before the duke went
oflT: * The lords of his majesty's orivy council,
* in obedience to his majesty's letter, of the
* date June 29, (inserted before A pp. N^Sl),
* ordain such of the prisoners as were taken iu
' the rebellion, (except the ministers, heritors
' and ringleaders, who are to bo prosecuted by
* the justices and others, to be si-ut to the plan-
* tations, to the number of three or four uun-
*■ dreil, itonfurin tn the list broui;:bt iu by the
* couiinittee, mid to be appro vcn by the eouu-
' cil) to be set at liberty upon their enacting
* themselves, not to take uinis against his ma-
* jesty or his authority ; and appoint the clerks
* of council \o see the said prisoners enact them-
* selves, and to iiitini^.te to them, that if they,
* or ony of them s!iu!l hereat'tcr be in anus at
* fieM- convent ieles, the persons so taken shall
* forfeit the benefit of his innjesty's indemnity,
* and thcreiipou to dismiss them ; and apnoiut
< one of the bailies of Edinburgh to attend.*
** Thus this matter stood as it was first or-
dered. This bond was extended and put in
form : and J have seen two copies of a bf)nd
pressed afler Bothwel; the one hath a plain
relation to the imleuuiity, and 1 supfHise was
wiiat was maile use of up and down ihe coun-
try ; and the other I take to be that which was
offered to the prisonei-s. It may not be unfit
to insert them both here, being but short. The
first runs thus:
* I beinc: satisfied with his majesty's
< Act of Indemnity, dated the 27t\\ of July
* last, and enacting m\ self to the etfect under-
* written; therefore T bind, oblige, and enact
* myseh, that I shall not bereatWr take up
' arms against his majesty, or hui authority.
* As witness my hand. Sec.
*< Tke other lioad, which, I tuppose, was
solemnlie swome, and ezainined, dcpooci, the
in the month of June 1679, tha pumll wntfc
the deponent to the house of one Oftvid Mar
shall in Hamilton, abuutfittiogof aooompts be-
twixt them, the pannall, John Spreull* and tb
deponent, having trysted tomeit at Hamiltmu
abttut that tyme befor he weot to Ireland fm
clearing thereof; tliat tber being tome oonfii-
sion in the accompts be reason of aooie pay.
• prisoners at Euinbnrgh, was Is
pose ; but a little adapied .to their
offered to the [
the same purpose ;
circumstances, and follows :
• I being apprehended for being H
< the late rebelUon ; and whereas the loidi tf
* his majesty's privy council, iapursoaBoeaf
< hismajesty'scommandfhaTeordaiBedmetsht
* set at liberty, i enacting myself to tho efiN|
* underwritten : tlieretbre I bind, oblige, awl fD>
* act myself in the hooks of the privy oouacil^
' that hereafter I shall not uke u|> arms, will|;
* out or against his majesty, or bis authority.
* As witness my hand, &c.'
*< Tiie exact numbers of such who took (hil
bond, and of those who refused it, I dumoC
pretend to give ; it is certain the most putVy
far fell in with it : and I find it said, that mtaj
of these who signed the hond did it under tb
thoughts, that uieir rising was not a»iaMhii
majesty *s authority, and consequently that it
did not bind them up from any such ^W^
ance, when occasion ofiered again. 1 fiM
about four hundred continued in the chnick-
yanl, as refusers, though, as hath been hiiilc4i
many of them had not the hond in their O0H
at first. The rest, it seems, either subscribd
the bond, or were silent when notars signed il
for them, which was reckoned enough when
they could not write ; and so tliey were dii-
missed.
** But then as to tiie i^ersons thus liberate kj
the Cffuncil's order, we must not think tbcu
sufierings were at an end; some instances K
the contrary have been already given. Tbi
most part of' them were tossed and haraiiec
upon their return to their houses, for no otiM
reason than their being at Bothwel, as likewiN
their friends and relations U(ioii their account
yea, their neii;hbours, and such as dealt wid
them, were distressed for converse and eoB*
muning with them. They had no pass gifei
them ; and though the council had done will
them, the anny had not ; and those made htik
I or no distinction U'twixt such as had brci
ttiken, and were libciate, and those who Ini
not been taken.
** And it deserves our remark further, thai
I both the prisonei-s now dismissed, and loaaj
I others who had escaped from Hothwel, aftfl
' the tirst brush was o\er this year, returned ti
' their houses and possessions', and, there b«is|
' no sentence a<rainst them, they resorted oped^
to Kirk and market, fairs, and other pubb
places ; yea, some of them were put isl
public employments, as procurators^ fiacih
and alicrifl'-clerka in courts. This could m
but make the most prudent ind onnlMin
STATE TRIALS, 33 Chables It \6B\.—SpreHll and hWgnnm. [7T8
Bimt inmde to J (Am 8prcuU*& wyff, he g«re Jobn
SpreuU some money, and deUyei) the fitting of
_tlier Accounu till another tyme. Deputicts I hut
iiediat}ie \w fiawe JoKti 8preu1l take hors€
ryd avTftv, and that he hiwle huisters aud
41, '■■! ti. "t he rode towards his owd
L. Di'p<>D«>« that he used to
|-.tlit: i^^: uit tyme^ befi>r the rel>e1Uf>[i,
^Mi|f Willi htiUteni ami pisto1b> Demons that
Ksoume utuch be ^uve him ivog within
Ulj<? pounds Scottj. I>e|>otis ther was no per-
|iiic«>iup!Uiy with tlit-m whvn this past but
lUiiiiwii. Depons, thiil Dsvid Mar^bftllm
I bciuse he nas, was uot out at the retiellion.
^ he doeti not ixMneniher whither hesawe
Li( piUon U^-hrnd hiiii or not. Depoiis I hat the
all b^de ^aid to the de|H>neat, that he hade
atmighi from lielnud, aud Ihut he was
J lor (iUKgowt*. . Iteiiig intei-oiyal il'ther
L »fiy diziCour^iF l>etwi\t the panall and liirtr,
the rebidiion and rehelis who wer in
t then^ dtpijTis iher past nothing bctwixl
them tberiiiietit us he renieinljers ; de|K>ns that
tliia wajithetywe when the rebelh wer at and
dboul H^uiihoun, and that the deponent was
gjtil6e«^ tbat t*itiier they were not at liothwel,
aeMt, the govemmeiit was fully
' thmiK Yet, in the year lo82,
eru ardSt ulien the matter of reset and
t waa pii$ih<ed as orirninid, not only with
on» lined p« rMmH and lugitives, hut suoh
jltereheid ;ind ri'|kule to have been in the re-
, fitiin.h nu stiiteoce had ever past upon
vore brought to trouble, and
'|)eii toil; and somei aa we
bear, were cHmdetnned precisely upon
tiknd converse.
>l>ftheie four hundred who remained in
t XDclosure, it w as reekoned about a hundred
^ CHit, someone way, some another, without
direct eoaipliance. Divers had interest
for them by their friends among the
eo«nsel]erR. Some, by climbing over the walls
of lite cbureb-yard with the hazard of thdr
Kvm;, and others by champing their t'bithe«i in
the n^b ♦ M . r> -3 r,.^A « .. .... > .> 1 1 y a t'e er ih eir huts
W&^ jif 1 , ns etothes.
^* A y L I „. . I : ;is takfQ M\n*n such
mho recDamed, by those at Kdmburgh, who
H^re of o|)mion the bond might be aubscribett
witb#utiiii ; but very little ground wa^ gained.
Tkcy b«»gan now to' be inured to iheit hard-
, andf by their mutual eonvertation, they
gUietieil and heightened one anotlier's
pkai anent the b^^ind^ and their spirita he-
I more and nuire snwred by the severities
» uader ; and many turned peremp'
linit all terms with their prose<*utors.
nd wan once and again otferetl to tbt.'iii,
now, I bc'lteve, without exceptton, when the
oflcrtrii ^erc pretty much figured few of them
woay lake it ; yea, tliey had frequent a^armii
V, t^iai tlie eouocd wotild put them
ath. But aa their tronblea grew, «o
r iirmnesa and resolution.
IT^yir tht pnsoneiTB cpotiaae titusat Edio-
owingthe pan nail more money* and this wm
aboui ^ " ' Vis More BoUiwelbridge, and
di<poiJi> III not see the ptmnall m com*
paiiv vuiij iiiiv "i the rebel Is, the time of there<-
bellion , And this is the trutli as he shall anaw^
to God,
SiciubKriUtur^ Jo. Laj^g .
BIr. Walirr PringU objects agaiofit David
Caldwell that he t-Anoot be admitted a witnea
against the pannaU, because it is olfere^J to be
proven, that since the pannalt was cited upon
this lybeU, be baa bein examined aud deponed
upon oath u|H>n thecoiHents of the lylH'ilf and
neither by the laws of thi^ nor any other natioif,
cane any previous inquisition he taken in exa*
mining 'of wilnessea against pannalls, afifer a
crimiiial persuit is ntfsed and the pa on all cited.
8ir Gtifrge IjMkhart adds, that the objection
is most relevant and of most extraoi-dinary im-
portance as to the lives of the people, that pan-
ualk efler they are accused, the witnyss caunul
be adduced nor swome against them, but in
judgemoDt and in presence of the pan null and
inquei^l ; aud the reaton m mo&t evident, be*
bnrgli« the . managers send directions through
the %vest and south lo the persons underwritlcni,
to offer the bond to such as bad been in tb^
risiugi aud were not Ijeritora or ministers, and
a power to enijuire after others. The pensOM
ibus inijiowered were, the lord Collin^toofi
for the shire of Edinburgh, the earl of Win*
totiii for HaddingtOHUi the earl fvt f liiUihwow
for Linlithgow, 1 1 »e marquis ui for
l^erth, the earl of ituxburgb for i ; i ^ i , tbi*
laird of Hayning lor ^Selkirk, the earl of CWn*
waih tor Lanerk, the carl f»f Queensberry for
J>umfrie&, the earl of Gteneairn for Air, thft
earl of Wigtoun for Dumbartoun^ tht* earl of
NUhsdalefor Kjrkc ml bright, sir William iMur*
ray of Hienhope tor Peeldts, earl of Mar for
t^Lirlitig, lord Uoss for Renfrew, the earl of
liurne for Berwick. Those persouH^ in a letter
frouj the council, July 17* have the IoUom ing
directic»ns and jmwers given them, ' That
« whereas his majesty, by his letter June Q%
* haih ordered, \;c. as allot e, the council im*
t powers them to call before tbeiw such wh^
^ were In the rclielliou, and are not heritor*^
* ministera, or riuji; leaders, whether it be th^te
* who were not apprehended, or, being appre-
* hended, have escitpoit, and have not taken
* the bond, and to offer it to them, and u{>oii
* their signing it to dismiss them, certifying
» thetn, that ifihey shall hereafter be in arn)9»
* or at field- con venticle?;, they shall forfeit the
^ benefit of the king's indemnity ; that, in cai
« of refusal to sign the bond, tfieir persons be
« secured in prison* Fnrtlter, they are im*
» powered to inform themselves what heritors^
* ring- leaden;, and minit»1ers within their shire^
* were in the rebellion, or did contribute to the
* sending out of persons thereunto, and to seiza
' and imprison tliem, and with all diligence ra*
* port tl^eir names to the counci^L' '*
a Wodnw, 79,
779] STATE TRIALS, dS Chablbs II. \6sl^Pro€eeduig9 agmmtt [78
cause the pannall, ' in ornni actu prgudiciali'
that concerns his lyflT, is to be conironied v»ith
the wytnpsses, and they to be interogat upon
the inuiiiall interojnitore of the paonall, and
any other points wiiich may tend to clear his
innocence, and not the M^itneyss predetermined
by depositions u|ion oath without the presence
of the pannall, which in lawe is prodiiio teiti-
Monit, and, not to insist upon any unnecessary
debate, this was so found and determined the
eight of January 1672, in the case of the pre-
sent justice general, and the Johnstouns of
Earsliage, and several! tymes sensy ue, and it is
the hedges, and the adrocai dcdares he mtke
no use of any of the previous depositions.
8ir George Luckhart reply es that the objec
tion made againest the witneyss, is in iud
most just, and foundit upon the solid and dm
grounds of hi we and reason, for albeit ' in ju-
* dicio inquisitionis,' befor a person be cited ■
guilty of a cry me ther is place in order to tb<
mformation of the judge, or of his majntia
advocat, to take try all and to hear the ilecb-
ration of whneysses to this effect to grant «»w
rand either fur the apprehending or citing oi
' criminalls according to the importance of thi
faider addit, that as this is uncontraverted laive, i cry me, yet 'in judicio accnsationis', aodefta
po my lord advocat in his own treatise of Cri-
minalls doth sett down the forsaid derision,
and doth assert the same not only to be his own
opinion, but ane uncoatraverted principle to be
oosenred by the justice court in all tyme ther-
ofter.
His Majetties Advocat alleadgcs that /?ro<fi^io
iestimonii reprobat by lawe is that which is
uUroniUf but not that which is taken by the
authoritie of a judvre, as to which ther cane be
no prejudice to the pannall nor presumption of
fraud, malice, or ilesigne, ancT it is necessary
in many cases, espcciallie in that of rebellion,
the horror and aversion wherof hes allowecl
many things to be done, which are not other-
ivayes allowed, as that $ocii criminisj and other
persons exceptionable niajr be receavcd,and tlie
particuUr reason why it is neceysar is to the
ond that it may be known what witneysses are
Co be secured, who otherwayes would not come.
Lykeas efter solenmc debate this was express-
lie re|)ellcd in I^Iarch Inst in the veric ca>;e of
this i-ebellioii, and beinju: I'ullic debate in coun-
cill, the justices* tlien)i>elvcs wer iX)nmiaiHlit to
examine and did uccordinglic examine, and as
ther is no hazard upon the one syd, so ther
might be gi-eat hazard to the coiiimonwcahh
uiion the other, since this tendit \(rie much to
clear uhat is the true probation, for cane ther
be any danger in rcceaving them upon oath
whatever may be otherwuys, fur if they be ho-
nest wilnoysses they will depone nothing con-
trair to truth being upon oath, and the act of
parliament appoynts that the probation that is
to make against the pannall be led in his ]>re-
■euce,and the advocat c-onfes!<es that depositions
taken upon uuih without his presence cannot l>e
repeiteil, nor should the jui^ticcs take notice of
them, and the reason the act of narlianient ap-
poynts that the witness should oe reciave<l in
the [Mmnall's presence, is to the end ihat the pan-
nall may dear the judges by farder intei-oga.
tors, which that previous try all does not hin
a partie hes gott his indytment, and is cited U
answer, ther cane be no'procedor made in tlnl
proces, but where the partie is present. AM
It is not of the least weight that the advod
declares that he does not make useof tbe dr)»
sitions of the witneyss alreadie taken bcciMi
tliey alreadie attained ane e6fect prejndidill k
the pannall which is to Umit and pradetenniM
them, so that they cane depone upon no ran
nor circumstance' oontrair to what they nifi
alreadie deponed without hazard of being in&i
nious, and |)eijured, and the lawes and coi'
tomes of all nations is so tender as to this ^yot,
that witneysses cannot he so much is exa-
mined, and ther dc*positions taken, * adibiana
I rei memoriam,' * and much lease cftar Um
intentinj^ of a crMiinall proces, whempoD tki
pannall is cited, and the Uwe upon the ssm
consideration reqiiyres to the end that tbe vit
neyss may de|)one nothing but truth, thatliiq
should be examined, and depone in pteicact
of the pannall,-!- ^^^d confronted with him tM
* *< Witnesses are sometimes received * ii
' criminahbus ad futuram rei memoriam,* An
the defender, but never for the accuser, mi
that IxKrause the accuser might blame himsd;
for not pursuing sooner, which is not ii
the defender's |K)wer, and * testibus non tes
' tiuioniis creilitur,' whereas de|iositinns, * «
*• futurain rei memoriam,' are only testimomM
And yet with us the justices some'times dedm
in court, when they continue diets, that tbr
will receive the depositions of witnesses to l]
171 rttentis; but this form is not allowable ii
my opinion, except Inith parties consent, be
cause by act of parliament all probation sbouh
be le<l in presence of the assize." Mackeaiie
part 2, tit. 21, sec. 17.
f " Witnesses must in our law be receivfi
in prcscn(re of the pannel and assize, and thi
the pan nel's presence may overaw the depoDcr
and that the assize may judge by the depo-
nent's countenance, gestures, and assunnes
der, not being to be foundit on, and so cfter the how far he should be believed ; and advoGsM
lybell is given ther cane no farder be done be ; are to be present, that they may internMU
ivay of inquisition, for farder burdening of the j upon emeri^nts: And this is much justerUtI
pannall, yet for clearing what witnesses are to
be secured for fear they abstract themselves for
bemg in the same cryme, which is in this case,
they may be ezaramed, or otherwayes the
councill would be forced to secure hundrcthsof
\i itnessest which would be most inconvenient for
the laws of other nations are, who allon
ther advocats nor party to be present, wbib
the witnesses depone."' Gumez, da Udict. of
1. num. 65. And in this abo we agree wiH
the civil law, L. Custodeaa, if. de publ. joft
ciis." Mackenzie, part 3. tit SO, aec 16.
STATE TRIALS, 33 Charles II. l6sL-Sprruii and FerguBon. [78f
Sif George Lockhart takes instrumeDts that
H is acknowMired that tli« vyttties was in ihm
r^fbcJUon and bes taken the bond*
DavtdCaldaell,* in IVtonklEfid, agcil 50 feart^
marrierl, solemn tie sworne a oil purged of par-
•" fo the Trial ofSpreuHor treason, June 13,
1681, it was strenuously olijwied by sir George
I^ckltart for the paiinel that David Caldwell
could not be admitted a witness, having,
since his citation^ been examine?*! on oath res-
pecting the contents of the hbt- 1. 'Hie court
reiM?1led the objection, * in rc*i>ect they rfo not
allow his majestie^g advocat to adduce these de-
positions against the pannel as ane prt»liation/
But the decisions of this period in tiiul formate
crimes arc no authority/' 'i Htioie^s Comroett*
taries, p. 183, Note 1.
The same author, in another part of liis
work^ (vol. 1, p. 130) thus writes of the pre-
vious e^iaminations or prccog^nlUonSi as they
are called in the law of ScotGnd, " Ttie en-
tire care of conducting these enqoines, hat
now devolved on the sheriffj, justices of peace,
and other inferior judj|;es; a great tniprore-
ment certainly oi' oar more ancieat practice,
in which it was nowise nncoromon for a pre-
eo^nition to be taken at instance of the lora ad*
rocat or his deputies, before the supreme* judflpes
themselves, or some of their nam T I ' ver©
atlerwards to sit in the trial. ed^
Mackenzie, m his Obsen'ations oi ■ 1 1 es,
has taken notice of a letter from li ihe
court in 1683, wherein he partiLi.;... , v ^.acctm
tliem to observe this practice in rastM»f ireason,
at any time when tlvit privy council shall de-
sire it. Nay» sometimes, the evidence in th«
trial, was notbingf more than a simple udher-
eneetn those previous testimonies, not uncom-
monly taken upon oath, which seem to have
been produced and read over to the witnessea,
in presence of the same judges who had before
examined them. Thus in the trial of Georg^e
Graham and Elizabeth Ramsay, Nor. 11,
J 663, for theft» three witnesses atfhereto their
depositions, taken by the justice-depute on the
20lh September preceding', and whereof tho
tenor is insertefl in the record. The evidence
is chiefly of the same sort, in the trial of Muir
ofCaldwall, and others, Aujjfust 16, 1667, for
treason ; as also in that of William Barclay^
Nov. IQy t6ti8» for murder. A still more sin-
gnlar course of inquiry, is that which was held
after the commencement of process. Nor. t4,
1679, in the case of Tollock, m artin, and others,
accused of rape. * The said day the lord jus-
tice-g^eneral made report to the 'remnant lords^
thai accotding to the recommend aiion mad«
be their lordships to him upon the 10th instanf«
he hatle examined parties and witnesses in the
aflkir above- men Lionet I, and found the compUinl
oltogr it ■ "-' ind maljtious. Thetordi
theret i he their presents desert,
,tbe djti -....j...>.,w, and discharge aH ncir
l«tlm to be raised, or dittay to be tt^a vp
jtb ftne absolute inraskia altogether, inconsls-
■|^ with the act of parliament, to pretend that
^Kr the to act ii. parL king James 6. does in
^Blire termes requyrc that the wlioll proces
^^p probation should be tised betor the assyse
P^resenee of the panie accused and his pVo-
mtnitors, that the said act may be thu<i evadit
B rendered iltusorie, that the witneyss may
f*r«»me and examined ; the pannatl not being
lent a»jd the same wilneyss as>aine repeitetl,
r they are concludit by the first exam ina-
11^ which is not to interprett the act of par-
Veot, but ah«iolutelie to subvert it,* and the
of justiciar}' are des^Tcd to consider ol*
dang-erous consequence this wtv to nil
i lives and tbrtuns, and the pannnlt r-epeatts
bnner practiques and the lawes and customes
tions and the opinion of all criminalists as
' 1 lis to the pretcn<;e that the
ii in Mil re h last, in a perfiuit
(li*c . i. i.^ailale heritors. It is answered
? pretence iv <rroumllesse, and it is contident-
[HBgJUfigjdged, that smce the fund at ion of this
^^^^Ber was never a witnes eicamined eiler
pi^Hnt) upon oath, the ])iu)null being absent,
"iBtfarycr any advocat diil desyrc or attempt it,
atiil it is downriu^ht contrAir to the act of par-
hatnent, and all that was done in the first case
,iriiS only the naked examination of the wit-
s, not upon oath, and to tooviocethe lords
[ tills is cfHiKonant to all the lawes in the
ad that ther is no exception, except in
%\\ case wher pannalts are contuma-
tb^ent, and doc not appear upon cita-
tioM, and even in that case ther cane be no far-
^Ej^mcedor made, not so much as to examine
^^■tysses to lye in retcntis^ exce|»t in the case
^^■npen rebellion and public sedition. And
^^ftW virtueof a late act of parliament, before
Spkh the witneysses could not have been exa-
Wflieil so much as in that case.
rfs Justice Clerk and C/ommissioners
ary repiU the ol;i't.nion fouuilit upon
fiiiions taken, iLoider of council. In
t tbey doe nol alUnve hL^ majeatiea adro-
la adduce these de|iosiuous a^inst the
< pimuLlI as ane probation, and oi-datnes the wtfc-
ym to be receaved.
Geotiic Lnckhart takes instruments that
acknowledged that ther wer other depost-
takeo of the [tannars witneysses without
ice.
If. W^Utr Pringk objects agfainst the said
i Caldwell, that he cannot be receared a
whav* beoause he 't&$Gcitu criminit^f
The t^rds rf'pell the riV»jection in respect he
^ bq taken the bond up[ioyutctl by his majealies
■Btomnirie, and tliat it is m the cry me of treason
^Bbe is citeiJ to be a witnes.
^ See ahfo 91 ackenzie^s Works, Vol. 2, p.
' As to Socli Criminin^ see Mackenzie, Part
|lt, 3d, sec, 10, and Hume's Commentaries,
{19, 15. yoK S. pp. 175,217
^ 3
T83 ] STATE TRIALS^ 33 Chables II. iGSL-^ProendingB Mgmntt fM^
tiall ODuncil, depons, he thynks he sawe the
pannall John Spreull, ryding io arms half a
inyle from Hamiltouo, upon the high waVi on
the Fry day betbr the derate of the rebells at
Both welbridge, and that he sawe some men with
them, but does not knowe if thev wer rebells.
Depons he was within thebreaihli of this house
to the pannall when he sawe him, and that he
aawe some of them have amies, and depons,
be never sawe John Spreull befor. Depons, that
the pannall, and these tliat wer in com|Nuiy
with him, wer half a ra^le distant from the
bodie of the rebells ; Being interogat if the
oannall was reput one of the rebells ; dejions.
Be does not knowe if he was reput as one of
tliem, being interrogat if John Spreull not be^
iog reput one of the rebells, why he and those
nhells who wer whh liim did not apprehend
him then. Depons he was not in a capacitie.
Depones that he mett the pannall in the high
vaj, and parted with him at Moderwell, half
m myle from Hamiltoun in the way towards
Edinburgh, which is witliin half a myle to the
place wher the corps of aoe of die rebells,
who was killed by his majesties forces lay, to
whose boriall the deponent was going, and de-
pQ&a, that Moderwell was in his road to the
aid huriall, and depons be never sawe the pan-
aD iinoe, till he saw biro in the castle of
Bdinbuiyh, and depons, that he thinks the
paiuudl is the man be sawe then, depons he
vpdke t* the pannall at that tyme, about the
taught and deepness of the wstler, and of
BO other matter, depons he did not knowe any
«f the persons, who wer ryding with John
%Heull at that tyme, except on man whom he
sawe severall tj^mes tlierafter ryding tlirowe
Hamiltoun Miiir, with the rebells, who was
called on Russill, in the parish of Monkland,
and that he sawe the same Russill in company
with the rebells befor ; and, this is the truth,
as bt shall answer to G04I.
Sic Subscribitur, David Caldwell.
lion, he did see non iiseing or wearing vnatt
on the streets of Hamiltoun, when the nkb
wer tber, but those that he suspected to be re-
bells. De|>ons he has seen some persons it bit
owne house the time of the rebidlion, wbo
hade cloath bags behind them and swurds about
them, whom he convoyed out of the toun to
the fckord, and who did not converse wiib as?
of the rebells, and this is tlie truth as beihu
answer to God.
Sic Subscribitur. James IIa3Ciltui.
Jamet Mdlar in Milrohaugh aged 85 yetn^
unmarried, purgeil and swome, depou bt
sawe on wlio was designed John Spreall 17^
ing on Hamiltoun Muir, in June 1679, ad
that he was within a verie little distance frw
him, and that he sawe him ryding upon a incy
horse witli armes up to the rebells ;. and ibil
he thinks this pannall i% like him, and racB-
bles the man that was designed to him Ib bi
John 8preull, but dare not positivtie depnt
that this pannall is that man who was it k^
signed to him, nor dare he depone positittii
that it is not ; he depons that he never bean
that John Spreull the pannall, was anongit
the rebells eher that, and this is the Iralh u
be shall answer to God.
Sic Subscribitur, James Ituii.
John 5/}reti//, wreitter, in Gk^gowe, aftl
snd swone, le-
Jama Hamiltoun, in Hamiltoun, called
NcpoSy aged 40 years, unmarried, purged and
•wome. Depons he sawe John Spreull, the pan-
nall goeinff single alone throwe Hamiltoun,
towards James Mortoun, appothtcary, his
shope, with a sword about him, and tlier was no
person speaking with him, and this was four
or five da yes beibre the defate at B<fthwei-
bridge, and depons, that at that tyme ther wer
a great many of the rebelU withm the toun of
Hamiltoun, and that he did not hear the pan-
nall to be reput on of tliein, at that tyme, de-
pons that the rebells wer goeing up and down
Hamiltoun, lyke a faire, hut he did not hear,
nor see the paDnall speak to any of them,
depones that dureing all the tyme of the rebel-
against the defenders for the cry mes above spe-
cified in time coming.' Certainly, in every
point of view, it is better, and more suitable,
tliatthe jud|^, like the aasize, should enter 00
the trial, without any previous knowledge or
imprMMtt of the gsk.**
27 years, unmaried, purged and
pons. That the deponent bein^> with a €MK
pany of the rebells about twenUeor threttie, hi
inett the pannall in a road about half a mpt
eastward frcm the Haggs, about four or fyn
dayes beibr the break at Bothwelbridgp, «
horseback, with another ryiling with him, aH
knowes not whither thev hade armes or DoC,B0r
whaf collor the pannafl^s horse was ; deposi
that he himself bade made use of two hnflM
the tyme of the rebellion, whereof one wm
brown, and another yray ; de|Mms he did ail
see the pannall, at Haniiltoun muir nor Hf
miltoun in com|Mmy with the rebelb, vmwf
other place, to the best of the deponent's ■»•
morie, and being interogat, if the panoall«0
repute, by any of the rebeils, or by him, tobt
one of ther number, depons be eanool i«-
mcniber ; and beiug interogat, w hen be pat
away the gray horse, depones he ihinU it
was some fewe days belbr the break, ami ihuite
it was four or fi\e dayes, but cannot be Doa*
tive; depones that the def»onent himselt'Ul
a {lerriwig, the collor of his owne haire, asi
lighter, and depones that the pannall, the t%is*
foresaid, that he mett him, hade nopeiri^ig*
but his own liaire ; and this is the truth. asiiB
shall answer to God.
Sic Subtcribitur, Jo. Spbeull.
John Aird, merchant, in Glasgow. a^irH t$
years, marrietl, purged and siit.ik, liv^A-jt^
Tlmt to the best of his knon 1edir«', n liu i iaS^
day, befor the delieite at lloihwi '-l r.i .^. bi
sawe John Spreull, the pai ji^jiII. i: v<<.
with Mr. Jonn Yfthh uud a Muu^au .un
STATETRIALS, SdCiiABLESlI. l6b\.^Sfiretill and Ferguson. [786
jpa rooBBe within the deponent's ownc house,
■ Ghig^we, the ileponfnt having httcdthe
Meek uil looked in, and this is the tnith, as he
ibill answer to GofL
SicSubscribiluff Jo. AiRD.
George Peirg. Cordener, in Glasg-owe, aged
f4 jctn, maricd, pureed ami swonic, depons,
iMnwea person, who was dr-^ipfncd to hirii
to be John Hpreull, ryding in HniniluKin mtiir,
« a bay horse, with a velvet caiie and a cloack,
and that he was rydinff aloue, lint kuovvs not,
M'itwai John SSprenll, the pannall, or Jolin
i^preaO, Mr. John Hprenll's son, kno\«es not if
M hade armcs or not, and that he heard it said
fbat John Sprenll, the pannall, was amongst
the r^lls, and this is the truth, as he shall
amrer to God.
Sic SMbKribitury George Piers.
M» Spreull^ wreitter, in Glasgowe, heing
li-cniniiied, depons, -it was a black hatt that
Is hide, when he was with the rehells, on
Baailioun muir, a;id that he hade a black hatt
aHlbetjme of the rebellion.
Sic Subicribiturf J o. Spreu ll .
CkMla Mowatt, appothccary in Glasgowe,
Iged 40 years, maried, purged and sworne,
I be sawe John Sprenlt, the pannall, ut
Dock, in a chainge house in June 1079, i
»l that he said he was newe come from ire- I
iHji, and he crared of the deponent anc ac-
MBpIhe was Acting him, and that the other
Mn fljpKuU was rcput to have bein in the )
prifie councill, cannot be repcitted as any
mean of probation in this process ; first, be-
cause the pannall being able to wreitt, thcr id
no su})scribed confession produced under his
hand, but on the contiuiir u copple of a pre-
tendit c<jnfpssion beinif drawn up and ex J'iC'!)/i-
tinentc- ofivred to the puiiiiull, he did inune-
diatelie disowne, discluini and reject the same.
Sdo. In the case of all judiciull conlessions
wher the pannalU are not able to wreitt, it is
the irrefragulile opinion of lawyers that the
confession should be inmiediately drawn up
and signed by the clerk of court, and ac-
quiesccil to by the pannall, but it is most un-
warrantable to pretend that the termf- of pre-
tendit confession expostfactOj and etXcr a \onff
inteiTall of tyme, cane be proven by the depo-
sitions of any witneysses of wiiat qualitie, re-
putation or integritie whatsomever ; and the
reason of I awe is most evident, because a con-
fession being of so great imi>ortance as to men's
lives and fortuns, witneysses may mistake as to
the tenor, and context and sense, anil t^e way
and maner of expix*ssion, all wliich may mak'is
a great difference and alteration as to the true
sense and import of such confessions, and ther
cannot be a preparative of more dangeroufi
Sic Subscribiiur^ Cii. I^Iowatt.
a preparative
<MM. fie Mwe Jolm Spreull, the pannall, at ;j»n*«^»«"'«* f^» «<> l»y «'«=>' «';»«latious that
EUck, in a chaiDi^houU in 'june 1079, i t^T'T" [ "''"^J'T *''»"'•• ^ *f^'"
' '^ • make up pretond/: confessions ex po^t Jacto,
and efler aue intervall of tyme.
3''. The said pretendit confession, though it
j wer produced under the pannalPs hand, yet it
I cane make no faith as being a confession extra-
judicial! and not taken coram competent cjudicr.
] us to tlie procrs, and the crymes and such
Mortoun^ appothecary, in Hamiltoun, ■ oxtrajuiiiciall confessions, even tlio consist-
IBJ Bgud 30 years, maricd, purged and sworne, ' ing in wreittinij: iind tiikcn iiiL'oatinent, are in
d^paas, Timt John ^Siireuii, tln^ pannall, came I lau -• n-vo(.'uhle *• vi fidtrtii non faelt in processii
fa la the deponent's sliope, in llauiiltoun, the ■ * crimiiiaii.' Arui ^vlurinull Inwc is so deer
Sof tiie rebellion, and craveil him money, ! anfl |.f^/atv(.' tiiru It is Init r(-].*it04l :ii:e extraja*
•de 00 annes, and the deponent trystcd du'i'ili ton't i-lia l!irap.ki'n a ju iicc ci>»if:ctefite.
Kb wdher ty m^ to gett his money ; depons ' if it is u^it pro t.rH-:(n-;tc, is niay uppeur by
#artbells wer in the timn of ilaniiltoun the
Ktbe imunall came to his sliope, an<l that
ak a bUnk bond from him for his money,
tike hade done befbr ; and this is the truth as
' iiaball answer to God.
Sic SubicribitUTy Ja. Myrtoln.
Mathr.ws p'i'j»'o7(», iJi ti).it iitli- * il< cor.ti-'isioni."
* s|K)ntaiv-:i |iiT lotinn.* Aiul by Jtilins (Maiii'*
Qnost. ."it, ii\\{\ l)\ tiio .'*i:tii( ri;it> and praeti<'iw
of rriininall lr:l)Linir:!.> by I iia at i,'rcal length
ritetl, nnd tin.' ini>;t thnt over surh prt'teii'tit
contt'Msidns <'jtlicr <'id, orioiiid opciat is bul
rk- tn. AIM 1 ^ p !• • I iftfficiiitu ad tiirturam v.U\v\i tli'* pannall 1. j
"'• T^"^!' A'L'"r^J'"*:'?'■-_"^.'"l''^'V^ Milloml ni>.l ....,lf..r»..e. auJ uas suliJortHl to
the same up'in that vcrie aerount that hL> re-
fust'd to owiie or subscryb*^ ilin said pn'tcmlit
confession. J .> kcas suitahic and ('Oii>:i'(|uenliall
to the opinion id' lawyers :;ud the practise ot'
nations »s to ttiis pouit the <.'(> v.vi of the
2nd pari. K. Ja. (i, lUns po itivjir and in r.\-
prcssc terms reipixn* that a*! '.vn-its and docu-
ments made use of as a inr.m of prohatiou
should be taken in faro and in \tr* -sfncf ol tht;
inipieist, and so doer. Nupiiosc th^it it iiinst be
taken by the justices ■tv/cv/frs/'/n lr,f.ui:nif in a
formeil coui-t, the inipK-st lM'in'.v >-^*«»»ne and
present. ^\ bi-ras this pret* niltl c'inflssi«ni is
allead(<:ed to have bein i\t\m * e\ti-a circum
,-J 26 years, marie<l, purged and sworn, de-
Ma lie never sawe the pannall brfor he snwe
t-^Mia the pannall, nor heard that he was out
^ lllie rehelhon befor he wiis quri^tioned upon
»Jh lybell ; and this is truth as he shall an-
l«KrtoOod.
* Sic Subicribitvr, Tho.Alstoun*
* Hii Mtnniie^t Advocaty in farder probation,
iiiaeed the confession mentioned in the de-
lile, allcadtfM emmitteil be the pannall in
■ee of the lords of pri v ie councill.
Sr Gtitg^ Lockkart, for the pannall, al- '
That any pretendit confession which
^-^ — , tadvocat alleadges was emmitted ; juris ;' the lords ol In^ ui:ije-;iies prive cirtnicill
Jythapanoill brfor the loru of his majestie's I beiug nouay^j judvces coui|iitUjl to the aiiai^
787] STATE TRIALS, 53 Charles \l le^U-^Preceiiingi mg9m$i
wtii proc^ tnii the cryiMs l^MM, trn^l to ir-
rigate «cid ioflici ihe cnndi^e punishment of
the samf" ; all whii h det'eoces tbe pftim&t) pro*
pooa M^ra/int, eatlier oi' them beiiF4^ * per ee
* et sepaimtifxi* rvWvuiM. And that tlior is au
law# or pr«cedetit iipoa record wKer ever the
Uke wts tveaid cif nr iiislaiueii lliut a priMenilit
conrnfiiciti »houkt be made up in a crirninull
procifs to import foHiiulture nt % nuurs H'rt' or
cttaie ttpoD ihe pretrndit ilepoBitioTis ot wit-
Beysses in respvcl wlicreof, ^c.
His M«/«li« AdvtKat TPpUes, that a* to the
ifVt, ihc not subset i hill {<- o* the con tension hy ihr
^partie cannot prejuritfe ibe probation, since the
COniesaifin beinp read to htm tlehben«tlit; and
Teiterailie it shall b^j offered in be pnjv en that
lie «!Ould not diiiowne tlie cnnlessian, which
being- it im against bvf e and reason that the
panoall's contnmacie sboiitd be of advantage to
DifTii Kinc« that «er to make one eryme drCeml
anotber, aad it is the cf>n<*t;int cuBt<»me ol' the
justice^ and aayysers, found it u^tnn excellent
feason, to tind confessiuns to be sntficient tho
not siibiciibed hy the paitie, and tUi.ft Gogtir,
fikein, S V 11 dycl Ujion con
lession^ lo fitbscnbe^
T(* I fill i-^siion wa s vt reitlen
and vs:^ rr inconttntnd'. And
it is pi'3 ...,.,^4)111 tie pmveij that the
pann&ll beintr udvertise«) of hi$» dan^fer ami all
the articles rend to hiro one by one, he positive-
lie acquie*eed m them all exceptini»^ only thnt
he did not «i} that was a reheUion, * et eir-
* eeptio firmat re<rutam/ and tbi« hijKhtens and
lessens not the cry me, und that ther uer blanks
in 11 at ibe end of the hnes, %vherupon by order
of the conncill that was acorrd tho nio^ unne-
cessary, vet to com pi ye with him and t^^en
againe read to biro, and then he bade nothing
tOSLJ.
To the 3rd, His Majesty's Advocat i» wn-
willini^ tostresch any di^batable poynt^ and fol-
lowing the temper and example of the Un^r,
hiii maiiU'r, tJiAi thi> iu-<iiilt> may kflowe hoi*e
h; MFernment,doeanot
ili.'- 'ho taken in |ji^iVii)
and wlier the pannell was advertised of hi«
hazard, yet that it is only suHicient hetnj;; ad*
minictilia hy^ and joynecl with other prcuiittnt
IH'ounds^eFidenees^ and presuntptions, in which
conjunction his m:ijesties udvocat debates that
it is one of the strunQTiit and i^alidest probatiotm ;
for who cane knowe a tnan^s at ► ' iter
then himself, and tho wreitts u v^d,
and ivitne>H*is may depone Itilb.i -.y4..i»i>ia
man, yet tliela^ve bes concUidit certninlie that
a man cjiti* never confess faUlle to his o woe
bnrt, and therefoVp etoi a oonfettiion taken
* coram judice incoinpeteiite' i;* concludinir, ex-
cept the confessor cane sliowe what inducefl
hua to erre^ tor which hfs majestieij ad v deal
4loes cite Masrnrd Condns, 35'?, num. V. That
* jttdex eomfw'tcns potest co*^'ere confessutn ad
*' |ierieferaiitlufn in coolwioue coram jodice
* ineniopetente fact6 nisi doerat do errore et de
'Mim lairiaiid** mhkh is m tootl reasonable
I !lb(rtl4
: 6ini^ aU
• onlf nt ID
conehasioii, and at it wer Sf^ifisl AH m
again
MUffiei'':. • ^ ' ■■_ :
t(» corri^ct htm&eil wher be 1
error, aiid why be shwnld Tarir
confession, wiucli i\i'\n pan-
if he enne^ his m5^i*"<tW-s ^
ailniitt ii to his ^
fe«siuhs are %'ah(i
hecitaClarus § tin;Ht. u
wher it is staled that inch
RUtGeient * ad torturam i; » -^ *
^ confession e cttncnrraot a' ^ »■
»ht8 case wher it is n»'>'* -^^ wil-
ueyjsseji beyond all t ^iWS
ua« actuame upon • '^
actnallie with the reh'
in whithuf he was IIk
w hat WAS his dcsi^ne, whn
a nflun himself h tlie m**
his owtie eoolteion roust
concluding and Jiohd proi
conftst, as indeed it
r.onfession« even * cm
suthcient t ^ "
most be ill
sion is of u .^n .» %» .
litHi, since by c*ur, tn:
he suhjectea to toriui ;,
strong grounds aiul prts
this patinnll stiffer the v >
nor upon no part* of his <
confession has not takfn •
yet to take etfect, and his
qowe prod need t for to am
which he himself best ktiewe, aoU »
tnte. To whit'h is joyn*?d n<*t oni\
aitionsofn s>e9 alrea^i<
that be ci r«aii*mofl
thrit thr^ I 1" '
tfl hv i.\' \r'' .r I
Wel-l>H4lt;t^^ iMni ." "^ »..v
and that he will not yet «
howe catie any rnak f*f .
rea'^iii alleadpr
that nartie, trati<
so *»tt with tliem, iind wiil not disownc iL ttt *W
hazard of his ^yf^, bfing infalahiir |>r<ivtii to
ha%e been npon the place in an ht^t
contest that he was ther. Th f>o f«
mater Hi rci gimliiioi^ wh
why he shouhiliavc emitr
conft^ssinn emitted, as siiid iv, siKunii km Oj
against htni^ being admin iculut as said it.
Sir George Lackhart duplyes, that the pan-
nail s prt»curators doe not at all
aeJves in the least streatened by 1
drsceuiht «ui by his mi^eatti*s w< !
hikein, and these other truii
condemiiad, in respect thr;
to nor concscme the poynt in i|uc«liu%
tlie cmitrair retorts the ioataiioe«^ in wtaA hrt
as tn the ca^e of all tliese psnualls tbey w«r
— J — -^
*" them
vrtjxufik
yes I
STATE TRIALS, 33 CHARtBS
ialy befera tlw jintices, aii4 they
le nne jadiciaU confessioiis in pre-
s jutkei and the in^eiBt, and rane
est transports of furie aod treason
gthe 101^*8 autboritie, and the au-
judicatories dirired and acting by
lis majesties autboritie, and so wer
) ffragumle' and owneiiiflc and com-
treason in the ^e of the court, so
ooUor or pretence of lawe cane be
these instances to thepoyntnowe
■re is no lawyer, and the lords of
re desyred to cast ther eyes upon
I prodooed, if ever it did enter into
: or imagination of any lawyer, that
Donfession of cry Dies import forfaul-
and estate, not extant nor produced
and of a judge, wher the partie can-
Qt offered to be proven by the depo-
imeysses, was ever heard of or sus-
ch not only ihe generall principle of
I reprobat, but even the lawe of this
iven tfi judicio civi/t, wher the im-
log else but a pecuniary interest for
fessions being but ' nuda omissio
,' depositions of witneysses are not
ne thesaroe^ even to the value of
^ ounds Scots, and it is a nottor
'I that a pretendit judiciall con-
d, made belbr the lords of ses-
» of Osebum and Buclianan, tho
oder the clerks hand, was not sus-
le binding or make fiuth unlesse it
■obscribed by the partie : and ane
•D by the English judges for the
B tMt ground against Buchanan,
d since, his majesties restouratioD,
I of session, Od being absurd, irrele-
Mtrair to lawe, ami it wer a strain^e
d consequence that if the depositions
Rt cannot be admitted to prove a
even as to the meanest civ ill effect,
bouM be allowed, and sustained, in
proces or witnvysses heard to de-
ft the tenor of parties confessions
» make any mean of probation, and
ich the act of imrliumeni above-
it repeiled, a^dinst wliicli tiier ney-
be any thinjt^ aus^wered. As
es that extrajudicial! onft-s
^ coram judice iiicoinpeteatp'
I * in modom adminiculi nit>i
la arrore,' does not at all ctmcenie
s it is only true wher * con-
i de veritate actus' by prodiic-
coafaHioii itself, in which case it is
(Mlthat whither it be the case of
iftwifius oreitrajudiciall, if the par-
* ^csre de errore' he inav retract
ill tgabat the coniession, but here
i m that the confession * de
k MMirit leriptnram,' and moat be
I Mll^ ineootinenter* when a per-
il ^W^imr it be a judiciall ooniessiou
Irfdi. whWi ia Dot in this case, and
tif fnbatioB by wStaeytiv,
II. l6Bl.Spreu1land Rrgti8<m. [790
that being to lay a fnndation for drawmg the
lives and reputations of aH men, into evident
hasard, and the pannall's procurators oppoiis
the authorities cited, and the lawe said well
that < nisi totd lege perspectd,' it is absurd ' d^
' eft judicare,' and the words immediately fol-
lowing the pUce cited by Clarus, does clear
the citation, and dounriffht militates against bis
ms^jesties advocate, and as to all the concur-
ranee and oualifications of the other adminicles
insisted on by his majesties advocate, they are
neither proper to be debated nor answered hoc
loco, but only pro|)er to be represented to th^
inqucist, and then shall be aufficientlie taken off,
answered and satisfied.
Mr. David Thor'u farder adds aqd repeits
the decision of this court m the case of Ro-
bertson, wholiaying contest the murder betor
three commissioners of justiciary and the king's
advocat, and Jiecoufessionbeins; subscribed by
the three Lords, Advocat and Clerk^ the LonM
refused to sustain the said confession either as
* plenam' or < semiplenaqi probatiouem.' . In
rpspect it was not taken by four of the justices
(who are only a quorum) ' pi*o tribunals ss-
* dente.*
Tlie Lords Justice General], Justice Clerk,
and Coumiissioners of Justiciary having con-
sidered the debate, they refuse toKuatame the
confession (to be proven by witneysses) as a
mean of probation either plenarie or admini-
culat. His mi^esties ailvocat desyres the pan*
nail shoaUi be interogat be the iocd» of jus-
ticiary whither or not he thinks the being at
iSothwelbridge a rebelliun.
The pannall answers that be oonceaves he is
not oblig<*d to answer, l)ecause it is nut tlie
cry me ly belled, and he may be as well inferuuat
u|K>n any povut o\ treason The lords ha« ing
intcrrogat the pannall if he apknou ledged the
rvseing at Bothwelbridore to be a reiielhon.
The pannall answered i hat it was not a part of
the cr^me ly belled, and th:.t his luttu'^ lylf
should witnes him to be b<*th a gin,d sr')je^>t,
and fi;tiod Christian. Uis majesties aiiM.eat
closes the probation, and protects for ane assyse
of ern>r against the inqueist in case Uiey
asrulizie.
Tlie Lords ordaine the assise to inclose and
retunie tlieir verdict to morrowe at 8 o'clock.
Curia Justiciari£, ^i. D. X. Ue;^is tcnta in
Pretoi'io Burgi dt: Edinburt^ii, ileriino
quaito die niensis J uiiii ]Oijl,fHT .Nubilem
ct Poteotem Comitcui (iiiliirlu. m Couii-
tem de UuecD&jeiiy, Jiisticiuiiuni (icue-
ralcm, ({itcharduurMaitlaud .It^ Onddop,
Justiciurie Ciericum, liobcr'U.n Doininum
de Nairn DoiniuuK Jucubuui I'ouiis ..e Co-
lintoun, Usividein Bultourth- i*'(irret,et Ua-
viduiii L'Viconarde Nmvtoiuit nmunssioiui-
rios Justiciurie dicti b. L>. N Kegis.
Cut ia legitnue utiirmata.
The persons who |Mist u|ion the assyse of
Robert Ferguson ot Lettcrpia returned ther
79 1] STATE TRIALS, 32 Ch arlbs 11. l680.— Tn'a/ of Datid JE/acfafom, [70
The pannall and his procanion talm insln
meuts upoa the verdict, and cnired the panni
John Spreull may be sett at liberty.
Ilis Diiyesties adrocat produoed aneact •
Coancill ordaining^ him to bedeuined in pn»
whereof the tenor followes: *' £dinbur{(U, d
fourjteiut day of Jane, 1681. The lords
his majesties pnfie council I doe hereby ^i
ordor and warrand to the justices, notwiti
standing of any verdicl or seuumce returned <
to be pronounced by them thereupon, upon tl
criminal I diitay latlie persewed against Job
Spreull, to detaine him in prison until! he b
examined upon sererall other povnts,tbey btr
to lay to his chairge. Extract by me.
«< Sic suburibUur^ Pa. Uexzeu."
* .
The Lords Commissioners of Justiciary, ri
respect of the said Act of Councill, did rau
tlie said John Spreull back to prison.
▼erdict in presence of the saids lords, whereof
the tenor Ibllowes :
The Aiisyse all in on Toice finils Ferguson
of Lettei'pin to be guilty of rebcllioo, and
being at liothwclbrid^e by his own confession.
SiC Sub&cnbitur, WiLt. Steivi!<son, Chan.
The lords: for sevrerall cauyses moTeing them,
continued the 'pronouncing of Doom and Sen-
tence against the said Robert Ferguson of
LeLterpin till the second Monday of November
nixL
The-persons vsho passed upon the assyse of
John Spreull, returned thcr verdict in presence
of the saids lords whereof the teuor foUoives :
< The Assyse, having considered the Depo-
< sitions of the whole witneysses, led and ad-
* duced against John Spreull, una voce finds
,' nothing proven of the crynios contained in
* the Lybell, which may make him guilty.
* S^ suUcribitur, Will. Steivinson, Chan.'
316. Trial of David Hackstoun, Laird of Rathillet> for Treason
and Sacrilegious Murder:* 32 Charles II. a. d. 1680. [No«
first printed from the Records of Justiciary in Edinburgh.]
CuAiA JusTicuRix, S. D. N. Repfis tenta in
pretorio burei de Eilinbur^h, 30 die Julii
1680, per lionorabilis \iros Guliclmum
Comitem de Uucinsbcry Justiciarium Ge-
neralem, Ritchardum JVIaitland de Dudop,
Justiciarie Clericum, Duminos Jacobum
Foulis de Colintoun, It(>l>ertnm Nuirn de
Slrathurd, Davidem l>allbur(Ierorrct, Da-
\ideiii Falwuier ile Ncutoun,el Uugeiuin
llogcdc Ilarcarss.
Curia Ic^j^itimeaiTinnata.
Intran
David Hackstpun^ of Ratliilct, Prisoner.
Y E arc indytcd and accused, that whcr not-
%vitlisLiudiiig from the lawe of Go<l, the lavie
of nations, and the uiiiuicipall lawe of this
kin;;dome, and the alleud^iance of the subjects
thorrof, ther Ivc p;reat obli;^tion.s and bonils
ii{K>n them anil you, to niiiintainc and defend
the royall and sovi>rci£>-ne power and aulhoritie
of the kind's majestie, uud that be tbc common
lawe, the laueof nutions and acts of purliament
of this kingdonic and constant practice thereof,
the ryseingr of his majesties subjects, or any
number of'them joyniu^r uud assembleinc^ toge-
ther in armes without, and contrary to his nia
jesties royal command, Warrand, and aulhori-
tie, and the abaiting, assisting;-, recepting-, inter-
communine, and keeping corresfHHidcnee with
such rebells, and supplieing of tliem with
levies of men, horse, money, armes, and fur-
* >Vith respect to the union of heteroge-
neous Chai^ges in one Dittay, see in this Ck»l-
lection the Case of Miirne and OgilTv, a. d.
nishingof them, with meat, drink, powder, Ml
or other munition bellicad, are mostdctertiMi
horrid, hynons, and abominable crymcsof rs
hellion, treason and lese maje$iiCf and are pi
nishable with forfaultour ot ly if, lands, hoc
tages, and escheat of moveables, and be tb
Hrst act of the 18 parliament king James At
the estates of parliament faitht'uUie prnaii
perpetually to obey, maintaioe, and detieod di
prerogative royal * of his sacred majestic, hi
aires, and buccessors, and privdedges of hi
hynes crown, with ther lives, lands, and goodi
and Ik! the 6th act, 1st session of his majeitie
first {Kirliament; it is declared that ii shi
be hye treason to the subjects of this king
dome or any nund>er of them, more or km
upon any ground or pretext whatsomefcr I
ryse or continue in amies, to make peace <
warr, or to make any treaties or leagues wil
foreign princes, or estates, or amongst tbea
selves, without his majestie's s|>ecial aotborit
and approbation, tirst interponed thereto, ai
I all his majesties leidges are discharged opo
! any pretext whatsoi>vcr, toattemptany of CMl
, thuigs, under the paine of treason ; and bell
7 art, 1 session of his majesties tufst pariii
ment, tht; late Solemne League and Coveoao
or any other covenant, or public oath is dii
cliarged to be taken be any of his maieiDt
subjects, uj>on ther highest |>errill. Andbtd
2d act, 2d session of his uis^jesties first pariii
ment, it is statute and ordained, that if n
person or persons shall herefter plott, cM
trive, or intend death, or destruction to d
king's majestic, or any bodiely harme IcoA
to death, or destruction, or any rettrtint api
hiiToyal person, or to depry ve, depose, or ii
peod bim Irom the style Woar andkiBli
STATE TRIALS, 32 Charles II. 1680.— /n* Treason.
[7M
iftba imperial] crown of' this realmp, or j of Wi^ftoun, Stewnrtrie of Kirkcodbrifpht,
her of his n]aje<<tip's dominions, or to ■ DumtrieM shire, K«'iitiewe, Lanerk, and other
J him iiroin the exercise of his royul ^i- j shy res, within thi» kingdome, and ye havings
rut, or to W\ie Mart, or take up amies , roUxl his inajeAie^s dutieiull and good subjects,
his majestie, or any roii»iiiiMs]»nat by • and tr«iasonabhe 4juartered upon them ; ye did
' shall mtyBeanystra;t);rirs to invade any . siqiplie sheher and protect Mr. John Welsh*
najeMio*s doniiiiiuns, aod sliad hy wreit- ! Mr. Samuel Amot. lorfaultand declared rehells
intiuif, or other mahciorp and nd\ise(l > for tlie rebellion 1666; and ve and your ac-
ijir, expH'sse and declaie such ther trea- I eoinpliccs having marched to Hamilton Muir,
did take the bolrines upon you to issue procla-
mations, and prim declarations, bearing the
treasonable grounds of your rebellion ; and did
pio^umc to modell and give your rebellious
assnciats the name of ane army ; and you did
modeil and forme yourselves in troups, com-
panys, and regiments, naming coUoneUs of
r^inents, captaines of companys, commanders
of troups, and other officers, under the com-
mand of the impious and bloodie murderen of
the late archbishop of Hf. Andrews: and ye
and your rebellious and treacherous accom«
! intentions, every such pt^rson or per-
aing upon siifiicient probation Icgallie
thereof, KJiall b«' ilooirml, <le(*1are<l, and
nl traitore, and sli:dl sujler Uirfnultiiic
honour, laiidn, and i^ofids, as in the
fireiicon. Yetyothes»id Daviil liack-
if Ratbilet, a disoliit, flairitious, and
treacherous villain, sharking off all fear
conscience, and ftense of <liity, atlca-
and loyaltie to your soveraiirne, and
mnce, upon the saiifitie of whiise sacred
and mantinance of whose soveraigne
lieaofl princliep<iwerthequvetne8, sta-
nd happienes of the ficople ifoes dp|»end,
i moat perfidiously and treas<inab1i«* pre-
tu conimitt, and are guilty of the crymes
nentioncd. In suae fare as ye aifd the
and sacraligioiis murderers of the late
ibop of Kf. Andrews, did goe into the
B kliyres, and did trc'asi>nablic joyn in
vitb lUibcrt Hamiltoun, brother to the
Frcstoun and his ac;complices, fIi.<Mdut
yitiuas |icnmnf, to the number of three
M upwards, and upon the twcntic nyntli
1679, a day appoynted for a isolemne
^ing' for hiK niajeMi«;*s rent miration to
ill government of this kinirdoine, goe
4iigbe of Kuthor^len, and tlicrc proud-
treasonablie, efter reading; acts of ther
jfBJng, shacking off your allcngiance to
ettie, ve most treasfinahlie ant! wickcdiic
evei all acts of pariinineiit a«<serting his
iVi prerogatives and establish in ij tlie pi-
nt of' the church, drownd out boncfyres
, in oominemoration of that day, and
rye and they continuing and ubydingin
■Mwabic armes ye and your rebellious
B In the uiimber of diil way la}' a fewe
ill panic of men, under the command of
d ol' Claverhouse, and ye and your ar-
cs did most crilellie munlcr, and kill
of bis majestie's Sfmldicrs under his
Bd, and ye beintr prouti and insolent of
esBoasble cruellies, mimlers, and villa-
d hsving assembled and con\ocat the
'Sftiro or three thousand men in armes
m day of June lOrP, or ane or other
liyes of the said iiioneth, ye and your
lices did mrst treasonablie attacqiie and
a small partie of the kiii<;'i» lurces with-
lof Glasgowe, by u hom yc and your
i repuliM;! I, and delate, and \ et
MMUSged and imboldened with ctmAu-
rv numerous and rebellious accoin-
did swell and crrfiue to tlie number
rtMhMr thousand, did robb, pillai^e, and
Arhone, srmes, powder, ball, and
MHBMli of warr, throwout the shy res
]dices, did incamp at Hamilton Muir, for aC'
vcrall dayes together in June 1G79, ye did ob»
sthiatlie continue in armes, ye did make de-
tachments for rifleing and plundering of the
country, to make provisions tor ther rebelUous
camp, and that notwuhstanding ot ane procla-
mation issued furth by the lords of his majes-
tie's Pmic Councill, declairing your said in-
surrection to be a manifest and horrid rebellion,
and hye treason, and commanding you and
your rebellious accomphces to desist and )a^
down your reliellious armes, and yet ye did
most treasonablie continue and abyd in armes,
and ye did beat parlies be drum, and did take
the bdldncs and presumption to send your com-
missioners to the royol camp, and ye and your
rebellions accomplices did treasonablie requyre
the subversion and overturning the goverment
of the church, and proudhe and insolentlie
boasted of your treasonable armes in which yc
and your accomplices did treasonablie continue
iiiitill the twentic second day of June 1679,
that his majestif*s forces did assault and at-
tacque them at Uothelbridge, wher by God's
blissing upon his majesties forces, and be the
valour and conduct of James duke of Uuc-
deugh and Monmouth his majestie*s generally
and officers and souldiers under his conduct ;
ye and your numerous and rebellioua army
iver disipat, routeil, and vanquished, and yet
ye persisting, ami abyding, in ane series and
tract of rclicllion and wickedness, as if ye hade
bein made for no other end, then to be ane
coemic to government (and so to mankind) and
to deminish and lessan that authoritie which by
your duty and alleagiance ye ought to
have maiitained, and under which ve have behi
so long protected, ye and Mr. lUtcbard Came-
ron, Mr. Donald Cargill, and others your im-
p.oiis,bloodi?,m ordering accomplices did drawe,
contry ve and forme, two most treasonable pa-
pers,* the one calle<l theFanaticks New CoTe-
* As to these two Papers, (the Queens-
ferry Paper and Sanquhar Declaration), see
tlie case of Mr. Donald Cargily in the next
STATE TRIALS, 52 Ciusles U. le^e.-^TViMl of Dmti B^ktimm, [7
(tekMi from Ut.
«MM tlie D«clu
AniMdalic^ ..
isMiScoliu
"Weiiui
alltkitjoyiie with r
^ ^ujt loii by UoU, ou
DoonU Ctfgfl], at
leneoHaiPAr-
oort^Tflt, ami
re loiiB being-
Ke« and iu4*p.
doe biud ourxnulU huU u sulvmne and waerciJ
bond, leftton the t^nc hand nc should be curyeil
«irav with the stivauu' of ji|Mj«tjicie and dr-
laeUoa of the church m ihiM tymi% and the
ulker hand lest we should (not beiu^ m^ ei>-
gat^ed) evanish iu vatiitie^ and he \rfthout a
n«^hl rule in good desi^s. We have judg-tKl
iioLU' duty stgaine to oi>venaut with Had and
one oauther,^ And to publi&h this d^clarnUou
Iu the world of our [KU'posi^'s, that men mwy
kaair our moAt mward tlioo^^itH, the rules
wie walk by, and the outm^j^t i uds^ \«c havv
bdW our eyes fur thU intent, th.it those who
are lovers oV God, zealous of hit rei^niui^ in
glory ^ and des>Tous of I'eformatiou, and (he
prupa^^ation uf his kingdofne^ may hwn CMaca-
lion no more to bej^ouaof our inltotiiiiifi,
and others may have no ifmujid to Ir^atl ns
with odious and fuuU aAjienuan^ ; but that all
knoWitio^ the truth of uh, if ih ' trive
a^4in»(t U6 and Uie truth with ie it
withauteitcu*e I" ' 1 cuovkih n. umiihat
tbofie who shall : ns may doe it u|H>n
i<did anil uodoi '- --Mt,«u [{^^y
^ and we may v\ \n\*
' he to pcinyewe . . ,,:ul in
lfom\ purple. <^ uoi ig-
norant of the ;^ im i^ faihui^,
euunteracting and mi»okui;4^^ that nun been in
^ oiir former towaanil eovenaut^i mth God, and
' ot the ^reat judifments, that Laih and are
^ like to tbllo«i aiuch impious and siiif ult iltfal-
' mg with God in Kuch wt'i^hty mutters (tVir
' whii-h we holh ought ;unl tiesyre to be luim-
'bled I:
I ) kvhich eajHiot hut luake us with
fre;\i ufhtyirt enter into now e ones,
• 'tuour oi^n weakness and readi*
I pbe, a d thei^reat hazunl and dan-
., I ..,vx - yr I n,-. A, •.,,.. of reco-
I the con -
^ __ ■ ; _L_ _.- .,. _, _: _ ' .,.' lit nit-iiri.
the zenl to l*od't( glory and L'hriii>
i which ifl the htglu.si und most ac ,
luly man cine nttfornie to lU»i) hoping iur
Ins mercies (.. Luiji witness to the iiite^^nty
t of onr heart; and rightnes of our iutenlioniiij
» that he will inslruet, dtn^ct, accept, and
^ prosper ui, wc goe forward dtfelairitig that
1681. Wodrow liaa to his Appendix
. 46t 47 y (iriuted these two Papers ; im r«*
ntation of them \u more full than that in
; Q^HXird of Jui»ii('iary. There are alto fre-
qoeol fariationa of phfa9eolo|(y, bc-iweeti the
two; and Wodrow 'n re|kori i« much the more
-connect oa to orlhog^ruphy and punctuation. 1
iftre iosorteil fruai WoJrow the most iinpor-
tmt |i4«»«ici?« which do tmt ap^r ia the Ec-
c^rdiof JuiiiiGktry.
bat*
99#mi^ dflv, bttt wiMt we ht
our dcfigr^e*
** Imo. We covf«ii!at aful
taV'"^" " '»ty true and hvlog^ Godt, !
8iii \ C*mU to be wu Gv^
tak. :\ vh to tile cii«rttft
nesse oi lua lk«i m the onlir rif
that caQ« justiHe tia krtbrc Uod^ maA i
takv \m »eripturea atid word lo be Hk oliact
of ^ur faith and rale of our contemim ia
all thioga, «cm1 thai we abkll give it|i mn^im
lo him to be rvaeweil, losiraclHl, md nil
thiu^d ruled hy his apiril iiotwiiliug l» tkt
worrl, and ahall fsvroMljr eadHAVimt fcrjr hii
^race to render to bin tlial love, w^niltip ^
obedienoe tteu his ward rec^tiirai ami tiia goo^
nesio^ages ir ' V ' '^ ^ Hat wrvabtUvtW
oiUcaoat of ot: v the ktnfiftaotar
Christ eslahit... ,.^. ,»^.wul iha kali (ifit
any ty me hei^ficr Gml ahftll eiire ua thntf-
portiiiMlv.) ri^hteouaataa aaa iW tmv »>
ioi M,|j^ in ihetrtitlt of itb
tbt mI power ot its wars! ^
ttinai*i;CH»« «aid in ita disci pUn mnd ^ii«w»*
meat, and IW^p the church of GckI IhMitbli
thraldoi .i^, incrcnushmcAt)
rupUoii ' ^>ii the 9b% K«iid» i
tia^ r, and that we t
p<J cliupeh and
lhi3 KiiJi^jiiujii ^^"t^ l^triiig caJU ' '*
glvini" ot u« powtr, \mv^tir I'
tod--'-— 1'^ .a ♦!..., .............
ex '
atKi . . , __
without leur, and [< < rr cud ngbiaii
(juyetnes wiLhiJUt ni <.*
3"* * That \4 e shall cudcuvour to our «
the extirpation of the king-dntn of dnrl
and Hlmrsoevrris '
Chrisft, and e^pei
in all the articles vi it, att ul a^e hou
* In Wo<lrow atler the aeoonil htad ki-
lows: Thirdly,** That we coiifea» \*ith «ur
* mouthy and heiieve with our hrairlaY lliat ibe
* doctrine of the reiunucd ehurolieai psfwitfj
* that of Scotland. couUiu/hI in 0»*» '-'^•^•iiiiip,
* aunnued up in our oim§em<' u, iikl
* vuiT-ii^xd to by us iu ourcovei . otJ^
fraie'ttf G'
le in tt to >i
t^viftkup rcijuiretl :i cd in th« >csiif •
turei, wnhont the h fidttiottf^ailm*
iugfv, or e^nruptioii^ Ait < <v tnH
worship ot Gt>d» and iht . i»«a^
inentcMTcised hy lawlut viunisiuii ^indaMert
in Iwirkiittitviona, t^reshyteriea. 8ytiadiao<IOl'
uerai A^aeiuUtes, ia tho only riglti giiMV*
ttieut of the church, und that this ipaf amwiit
ia a distinct gtiTerameiti '---r f^- —il, ani
ou^^ht distiactly to he < i t«r a
carnal manner hy th* . .^ or
anthoritv of a sinu
the Word of God, .•
car icncejamJnotpJumiit^aiirciMa^"
And 1 ti IS the M head lo the Mit, m
Wodiuw ia ihe ^.
9
STATE TRtALS, 32 Charles IL 1680.— /or Treason.
[798
I eoremBt, and siinerBtitimi, will
ip and prelacie with its liierarch y, as
B bomd hi OUT Solemft League anil Co-
t, and that we ahall with the saute sin-
endeavour (God giving as assistance)
OTtbrow of tnat power,' that liath es-
kA that prelacy and erastiartism over
laroh, and exercises such a Instftil and
iry granny over the subjects, seeking
to introduce idolatry, and BU[icrstition
ae lands contrair to our covenants, an<l
pord that we shall endeavour the extir-
I of mil the works of darkness, and the
I of idolatry and superstition (which arc
nncfa enlarged and revived in our tynies)
Kent righteous iudgement impartiallie
r£ng to the word of God, a[nd degree of
dnesa) upon the committers of these
I, tat especially blasphemy, idolatry,
Miy toroery, peijurv, uncleaaness, jiro-
on of the Lonl's uay, oppression and
IMDcy, that being thus zcalons for God
ty delight todwcTi among us.
* Seriouslie considering that the hand of
inga has bein against the throne of the
ud that now lor a long tyme the suc-
■ of our kings and the most part of
olcn with him, hath bein against the
e aod power of reli^on and gfuliienc^s,
freedom of the chi»ch ot* Uxh], and
iegeuerat from the vertue and good go-
HBt of ther predecessors unto tyrauny,
wtk of late so inanifestlie rejected (lod,
fffiee and reformation, as a slavery, as
dMnmelves call it in ther publict papers
sally in these last letters to the king and
of Lauderdale) disclaiming th^r co-
twith God, and blasphemously iimiting
c bamt by the hand of a hangman, gii>
d contrary to all right lawes, divin ami
n, exercised such tyranny and arliitrary
ttuient, opprest men in ther consciences,
ivil rights, vsed frpe Kuhjeirls ((JhristiiUi
men) with less discrution und
• then ther beasts, and S'> ntit tinly (Viis-
be great end of govemmi'nt (w hi,*ii is
mav live godlio, lioiil\ and pcace-
tCem, and nii'cht bo niri'iTriinnl
!rri|^litii and liberties from iiijitric and
g)lrat hath also walkerl central y to it, so
t can no more be called a trovurnnieiit,
I- Instfull rage exercised with as little
reaaou, and itith more cruelty then in
ii and they themselves can no niui-e lie
Igwremours, but publict grassators, and
Ct joilgmeBts which all men oui^lit as
■dy lo bbour to be free of, us of sword,
w or pestdenas ra«|^;inr^ nmongst us,
beridea hath stopped (insi«:a(l of punish-
ftm ooorseof lawe and justice against
laHp blasphemers, atheists, murderers,
MtOit ami adulterous, and other nnic
Hf aad instead of rewarding tJie good,
MMte butcheries and murthcrs on
iMvAfeople, sold them ns sluvc<;, im-
ia^fiNmited, banished, and ftnen tlirui
I m afllar aeeonnt, but for matttaining
* the Lord's right to rule consciences against
' the usurpations, of men, for fulfilhng ther
^vowe8,attd repelling unjust %'iolcnce-, which
* innocent nature allows to all ; of all which
< and more particulars we can give (we speak
* as befor God) inunmerable andsure mstances.
' [But that we may see if there be any thing
* that stands in our way ; there are but three
* things that seem to have weight that we
' know. First, Whether the deed ami obliga-
* tion of our ancestors can bind us. Secondly,
* Whether the covenant doth liind us either to
* this man or his pf>sterity. And thinlly, Wbe-
' ther there yet be any hope of them and their
* (KNiterity.
* 1st, As to the first. Our ancestors, their
* tmnsactions and obligations neither did, nor
* could bind us, they did not buy their liberty
' and couquest with our thraldom and slavery ;
* nor could they, liberty and freedom being a
* benefit next to life, jf not in some regard
* above it, that they could not give it away
* more than our lives, neither is it in the jiOwer
< of parents to bind their posterity to any thing
*• that is so much to their prejudice, and sigainst
* their natural Kberty. Itisothenvise indeed
< in thinpfs moral. Neither did they bind ns to
* any thmg but to a government, which they
* then esteeiKcd the liest for the commnnwealtn
*• and subjects; and when this ceaseth, we are
* free to choose another, if we see it more con-
* duciblc for that end, and more free of these
' inconvenienvies. 3ndly. The covenant doth
* not, for it only binds us to maintain our king
' in the roaiutenance of the true established
* and covenanted religion ; and this we have
' not ; neither can they require homage upon
' the account of the covenant, having re*
' noimred and disclaimed that covenant: and
* we liein*^ no otherwise bound, the covenant
* l»f:lng the coronation compact, without the
* swearing and sealing of which our fathers,
' or rather we ourselvc* reiu::<.d to receive him
* f.)r king, and them tor nilers ; and if they
*• were free to refuse him for kintr, u|ion the
' account of not subscrihinif of that covenant,
* we are much more free to reject him upon
* his renouncing of it, this ln'in*^ the only way
* of receiving the crown of ScDtlaud ; and
* reii^ning also, not being an inheritance that
* passes from father to son, without the con-
' Ki*nt of tenants, liiit an (and the more men
* plead lor this, the more we are concrerncd to
* look to it) otlicf?, which, all s;)y, is given ' ad
' ' eulpain, non ad vilam.' W'odruw.]
' Neither can it he tiiouirht tliutther is hope
' of ther returning from these eours.^s, having
* so oft shewed ther natures anil enmities
* against <iod and nil ri;;;liti*ousii;ss, and so
' often de<!lared and reiieueil ther |iur))os(^ and
* promises of luTsevcriii'^ in tlu'so courses, and
* suppose they s'l'ndd di&seuiide a reiN^ntance
* of tliese evilfs a.i,l jindesse t«» retiinie to better
* courses 'u-m\*; puit to strait**: or tor ther o«^n
* ends (lor npr)u no of !irr account cane wc n-a-
* sonablie expf^ct it) and though it niiuht h%
* thought that ther might he pardon tor wb^l
I
799] STATE TRIALS, 32 Charles II. 168O.— Trio/ of David UaekUam, [SM
* is done (\ihicb wecaDDot yet see to be with-
* out the violation of tlic lawe of God, and a
* great guiltinesse on the land, from uliich
* guiltinesse the land can neTcr be free but by
^ executing of God's righteous judgments upon
* them for omittinjjp so great lie deserved and so
« necessarly reqnisita justice) ^'et they cannot
* be beloved citcr they have violated all tyes
* that humane \vis<lom cane devise to bind men,
* and licside ther will be something of follie
* found to think to bind a king that pretends to
* absolntnes, and our fathers or rather ourselves
*at firstjudgedit not wan'an table to rcccavc
* him without consenting to and swearing of
* the covenant, and if so the renouncing and
* disclaiming thereof we ought at present to
* judge to 1^ a just and reasonable ground of
^ rejecting him. U|)on these grounds beinii; as-
* sured of God's approbatiun and men's wliose
* hearts are nut utterly byassed and ther con-
* sciences altogether corrupted, and knoweing
* assuredly that the upholding of such is to
*• uphold men to bear down Christ's kin|j>;dom,
* and to uphold Satan's, and the depryvuig ot
* men of right government and good "^govcrn-
* ours to the ruining of religion, undoein^* of
* human societie, we then s(M.*ing the inmiicra-
< ble sins and snares that are in ^ving obedi-
< ence to ther acts ; on the othern&and seeing
* if we shall acknowledge ther authorhie and
< refuse obedience to ther sinfull commands, the
< endless miseries that will followe and siding
^ with God, (vvho we h<'|)e will accept and help
* us to a liberation from ther tyranny) against
< his stated and declared enemies, doe reject
' that king and these associut Mith hlni IVom
* being our rultMS because standing in the way
* of our riflriit free and peiKvuble sir* ini»- of
* God, propagating his kiuploiu and rL'forma-
< tiouand overthmweingNiitan's kingilome ac-
^cording to our covenant, and di-cUut-s them
*■ hence furth to be no lawfull rulers, as they
' have declared us to he no laivfull subjects
^ ujion a ground far ksse warrantable, as men
* unbyasscd may see, and that cfter this we
* neitlicr owe nor shall yeald any willing obe-
' dience to them, but shall rather suffer the
' outmost of ther cruelties and injustice untill
* God shall plead our cuiuse, and that upon
*• these accounts, because they have altered and
' destroyed the LonKs established religion, over-
* tumecl the funtlaiueniall and established lawes
* of the kingdonir, taken alto:;etlier auay
* Christ's church and government, andchaingc'ill
* the civil government of this land (w hieh was
* by king and free parliaments) unto tyrannic,
* wher non are associat to lie partakers of the
* government but only tho^e \^ho will be fouml
* by justice to he guilty of criminnll';, and all
* other excludit even those who by the laurs of
* the laud by birth hade a right to and a share
* in that government, and that onlv because not
' of the same guiltinesse and niisehievons pur-
* poses with themselves, and also all free elec-
' tions of commissioners for parliament and
* officers for government, are made void by
* ther makiDg tboM th« qualifications of ad-
* mission to those places, whicli by the wordo
^ God and the laws of this land.wer the cau»
' ot tlier exclusion befor, so that non cane lool
* upon us, or judge us bound in alledKeance ti
* them unlesse the say also we are iKmiid ii
' alledgeance to divills, they being his vice
' gerents and uot God's.
* 5to. We then beiug romle free by God am
< ther own doeings, he giving the law e and they
' giving the transgression of that lawe, vLii-h
* IS the cause that we are loused nowe from hII
< obligations, buth divine and civil, to them, and
* knoweing that no societie of men that hatli
! * conuption in them (which alwayes is rtaiiy
I * to hegett disorders and dwc injuries uulesse
I * restraiue<l and punished by lawes and ^ivem-
I * ment) can be w ithout kiw*es and governinmt.
' and withall dcsyreiug to be governed in tlie
I < best way that is* least liable to uiconieniencef
I < and tyranny, we doe declare that we shall «tt
J * up over ourselves, and over all that Gml shall
> * give us power, government, and guiernuurs
I * according to the~ word of God, and esiitriallie
* according to that word. Ex<m1. x«iii. ver. il
! * ' Moreover thou shall provide out of all ifac
'. * *• people able men, such as tear God, men ci
* * truth, hating co^etousness,* [and plac^siicli
I * over them to be rulers of thousands aod rukir*
I * of hundreds, rulers of titties, and rulvrs ui'
I *" tens. Wodrow], And that we shaH no more
I < committ the (government of oursilves, ami
* the making of lawes for us to any one bo^h
\ *• person and lineal succession, we not bcin:;
i * tyed as the Jews wer by God to one lamily
I ^ government, not hi.ing an inheiitunce but anc
* office, which mii<t be stpiured, not to tbt* in-
! ' terest and lust of a man, but ti» the gotNl of
' ' the commonwealth ; and this kind of irnuTU-
I * ment by a single pers*)n, Vc. being uiosl iv-
I ^ able to incunveniiuie las sad and hui; (X-
j * jieriencemay now teaeh us) and aptosl toile-
i * generat unto tuTaunie. 3Joreo\ir \*e df-
* dare, that these men whom we shall 'cti
! * over us shall Im' engaired to yn>\crn iis. |)n:»-
I ' cipally by that civil or juilicial'. lav^e "iivii
I * by Goil to his peoph; ol' Israel. 'No nnn,
I < vve think, doubting but it must he tiie hv>i xi
* iar as it goes, beiir^ iiiven by G<id ; :iii>! wi*
* having no body of law of our ov»ii, but '^onH'
* few iuiperfeit Acts <if I'arlinnu ni, jn.d miiiu*-
* times follovviug the eanon, and Minaiiinf-stlie
* feudal, and Konutimes the <'ivil, vvhivb ("-I'a-
i * sicns great eonirntions among the pinj»!f,
; * especially those who are natuially liii::i«-ns
, * to the exhaustiiiir and en!iar.ciii(r "f tiio i>vili*
I * stance of the kiii;^doni to some few nirn. p.n.l
I * sfjuei'/.ing of its inhabitants. Wodrow,] Hoi
I * espocialhe that we shall he governed bv liiai
> * law in ni.itters of lyff anil death, and io aU
; * other things also so farr as tlie^' reach, f^-
* cepl nidy that lawe (viz. ancnt slaves) which
• * does not a<;ree with that Christian hhertv
' established in all (-hristiandom (only violatd
' by our t\ranies, and some others of late), uA
*■ tAat of divorces and poligamy, the one beiifl
* not a lawe, but a penmssion grantcil upM
* the account of the hardness of ther hcvts
ber Imne t tin
ATE TRIALS* 52 C^AfitEt H. t580.-/9r trttison.
ler Imnc t linfiil cu«toin cofitrary ta * this fn'«»»'««»atire h fotmdit^aTid fHrti 1»^lcb it
fcR^ unto • U <t ' " ' ss if tiot mtM
di
ll»«r ],.,.
sr» with then
a tit
jui-t II HI n iu;j|lier
which stilts onl^
'"<!§, Jiud it nisty
rtvttl 10 If* of
1 ij^minini Ha-
^ I it li a ty^ti» monarch Vi
W^ I hr men, Tind nviD Ittbtiur
Met 'Ties» Aru)
■oii^ _ lo make
wrtet'illl aji th4:r vvjiy is ; but if this be
PM RMMIttcltyf we holh are and tMi<L;hi
P« :.•!.' i
}
thitt accoffVmtx *i til^ \*ortl.
the work of the tiiinUifm «f
' ■ u\ JeJeiia
the doc-
, hberti«*s
' rufnip-
- ^ nutl ail
; tliiLt the mttiistt«M ol'
itid (al least the jjreatest
I) not «nly were defcc-,
11*1 ttMifymg- aj;rami the
I HiMJwm^ reli-
iiCf our cove-
'jrn-
^ his
I \ HHi .-; Luiiu-air
itjnt'liiTg' of that
tiriifrn hinn sv n
; ho t'aivin c.ilU thul supie-
^ of Henv)' t)te eij;ht, upon which
m Jlower ttitt
I wm tfcrmm
iQ his cliui
i!ir;_;lVGiltO tj klKt;
;4*d ag^iUbtChtiTk's
f\f> ikow, (v«>l. ?, p. 139)
\ |<i hiiTc bt-cn ntj^-ned \>y Caniertm and
k Moy, 1680, wrre ** u^iiriun;^ l'» hiru
9y%\ HrertJ^ativcs ot Jesu« Chrrst,
dlinsj' upon thr IrfTniifS Of t!ie
I litiih ill oppu-
I * lialor, and the
I Ut Act of the
*,. Nov. 16, 1069,)
nr it iii« for the ^ood
mid !Stute» thut hia
, in relit ion to
ticith be iiicire
aas^fd liy un ae* ui p'^rliutiifnt»** it
BiMi:t#d, fi^iertcdf and d*^claredf That
Hf holti tUr !iii pro trie authority und
Y rvTpf ^^t p^T^onu nntt in ftU niuiJeJi
r. 1 that
dof
the
jraty
= . M.;.,. iij the
nd hfi succes-
(fcUll )<<
Ih
tf3r«(ftic,.
Misaittd ori
It of til (^ i X
^otSSti-
dmi-
r the
line,
> aiid
d titereiu,
: think fit,
«#tj^ inrxkiY^ uilU cgrisULutioiiir^ being
* 10 '.
* nil.
* elm I, and a£;:un?ii the oilier acts aod
* inrs.*^^ ,i . v.ijs of his cfiurrh, and bundered
^ others nlso who ivew viilUiig and wnutil Imve
* testified oirninst them, titid censun^^d some
* tlmt dtd it (for whn-h toflpther with other
' ttiu*tB la ther Intst nnd administratifia, svf
* may say God hirth Ipfl ihctu to *loc worse
* thui^) hot »bo hath voted iu thrtt mL^^rmfr
* (which thcy »repl#'3i5«d to rail 'an ' f
* of Min'Kt<;»V but howc justlie l^tt i ■ f
* ane acceptation of that hhei ' f»
* and ci*efi by vertne ni' that
* arri ' V id usurped pgwcr, n
* pr . ther cmiris, to ar t
* lihtivv, .ii»M to he itiacte*! and '"i r
* fin fnihistei's, and so hath wd^ s
^ ane illicit act of the will, nu [ , ^ ul
* ftirce and CoDSlraint) translated the power of
* Seiiding; oat, ordorin«», censaring^, (for as they
re<*ordcd in the book* of eomicil and dniy puh-
Hshrd, are to be Obscrrcd wnd obeyed hy ml hit
majp^ties subjects, any huv, act or cvmtona to
the contrary r»ot^*ithstaodin<jf,"
Bui by tfie Articles of Gnev^^ces, kc. (18tU
of the Acts nnd Onleis of the (neeting of the
estates of the kiiitldoin of Scotland, Apnl t3<li
1639) It was* dt cbrrd» " That the 1st Act ot*
Pnrli:lirient 1061», t* lTUon<.i.stciit with the e«-
tabh^hmeiJl o< • huirL •ovenmKnitii'nv i'* ^utdi
and ought to' d/* Ami ly
it was ftbropiii ^ istActoti '.-
sion of ^'illiaio ami Mnrv. And by ti^e 54)i
Act of the same Hes5;ion, I^n^^hvtcthn PhnreU
Gorernjneiii was fully ' ' i:d
ActSySii.:, contrary or pV*i ut
ivith, or derogatory frotii it, ^mvh rt-sciufieili
and the roid'e^^ion of Fatth was ratified. Of
this C'oiifcR^ioij ihe 'ISih ch«pier mrtinTainsthe
exclusive ecclfsiusiirul «u pi cmiicv of' our Sa-
viour, ** Then - - r'^er head of the Church
but the Lord . t/*
Auoihci act :.;. > . .. ..s^ Pr^-shnnlnn churcfe
•joverntueiit wns pas^^ed Jiirte :. And
by t^vo acts of S^pt. I70:i, {I riner </f
vvhicdi I'reshyterluTi Church Goveruineht wat
secured and c<mfirmr»iJ» aiid by the latter it wai
declareifP> be HifjhTrcrtSoii to iiitpugnthe 4tt-
thorityof the Conveution Parliament or even to
attempt un alteration m the Oaim of Vlij^hls,)
the luainiainanee of the Pi^e^jbytenan fCilii^doo
vva«, as yit. Laiog* has ohs«*rved, iivdirectly
aided by the penaUies ot* treason. Lastty, tm
Jaouary 16th, 1707, (the day on wh»cK the
act mtifying and coirfirmin;^' the Treatv of
T.) nimi was en ^ ' ^ ' ' ^ " *" '^ ' '
securincr the ! '
ordfliuiwg* hm
sorcrci'nis <i!
( tor
Mt,
tioutil, on their
'jp iiit-fnf:\b!v to
■ ■■cK
maintain and pre^itr^e i
Gmeaimcnt,'* A."i to ih< 1
4 Laing, :^^, SO^^ 3^^ idttOutf iif XSOi.
3F
I
i
803] STATE TRIALS, 32 Cuarlu IL iSBO^TrMaf DopU Hi€kU4mH, [8M
< accept Df thcr liberty from tbem,. lo they
* submitt to ther censures and , restrainta, at
' least ail of tbein who wer yet tryed with
* it, and others of them appeared and ac-
* J^nowJeJged before ther courts, tliat they
* would not have done these things, that they
* wer cliairged with, if they hade thought it
< would have offended them. Ministers, de-
* parting from the court of Christ, and suhjec-
* tion, to the ministry, to the couru of men and
* subjection to the niagi:itrate, (which hade bein
* impious, and injurious to Christ, and his
« churcl), althougli they hade been righteous,
* and lawfull rulers,) and by their changing of
* courts, (according to common lawe) hath
< changed ihcr masters, and of the ministers
< of Christ are become the ministers of men,
< and bound to answer to them, as oil as they -
< will, and as by the acceptation of this liberty,
< in such manuer, tliey have translated the
< («ower, so they have given up, and utterly
< quit the government, and a succession of a
* presbiteriau luiiiistry ; for as these wer not
* granted them, of their mastei-s, so they ex-
' ercise ther ministry \i ithout them, and so by
< these (as the ecclesiaNtie govern meut is
< swallowed up in the civil) if the rest hade i'ol-
< lowed them, the iniiiibtry shoidd have bc'in
' extinct with themselves, and the whull work
' of reformation hade beln buried in oblivion,
* not so much as the rf meniberance of it ke|jt
' up : these to^ither wilh tlic other oi' their
' commissions in prcat-bing the lawfulucsje of
* plying that tribute, declared to be itii|Hi6ed,
* for the bearing down, of the true w(»rship of
' God, (which tbev fulslie termed seditious
* conventicles,) a.id' ther aitwiseiiig tiiese jMior
' prisoners to subscrybe tlie bond, and coiisc-
< quentlie couhl not but s<» advise all othcis if
' putt to it (for the hazard, thut men were in,
* will not make a reall eliauge of the morality
* of that action,) and besids the rt^t may be put
* to it upon the same hazard, and so it the one
* should advise (which conse(}uciiily they must
' doe,) and the other should subs<'iyb(s this
< would altogether close tliat door, wUich the
' I^rd hath made use of, in all the churches of
' £urope, for casting of the yoke of the whore,
* and restoring the truth and puritieof reliorion
< and reformation, and fieedomoftbechurclies,
' and should have stopped all ingresse for
* men when onco brought under tyranny, to
* recover ther libcrtv again- These ministers,
* then not being forio\>ers of Christ, who beior
* Pontius Pilate gave a good confession, which
< was, that he was a King, and no king, if
^ he have not power io onler his house and
< subjects, and they not following him, nor his
* ministers, if not asserting and mantaininiQf of
* this his kingUc power, against all incroaches
' and usurpers of it, and be^ids we bcin)^ com-
' manded, if any brother w alk disorderlie, from
* such ^o withdraw, and aUhou;rh in the capa-
* city we now arc in, we neither have nor as-
* sumes, to ourselves, aiithoritie to give out
* definite and authoritative sentences, id'depo-
* sitiom and yuspensioD agaiast these utiuisteri,
* yet we declare, which is proper for u to dot,
' that we neither cane nor will bear prcacb-
* ing, nor receave sacramenta from these mi-
* nisters, that hath accepted of, and voted for
* that liberty, and dedairea all who hare eo-
* couraged and strengthened ther hands, by
* hearing and pleading for them, all those wbo
* have traffiqued for ane miion with them,
< without ther renuncing, and repeotiog of
* these things, all those who doe not testi6e
* faithfullie against them, and el\er doe not de-
* port themselves suitablie to ther testimooiei,
* and all \\ ho jo^n not in public, with ther hre-
* tlu^n, who are testiftemg ag^inest them, wt
' declare that we shall not heair them preicb,
* nor receave sacraments from them, at kuX
* till they stand in Judgement befor these ni-
* nisters, and be judge<l by them, who hirt
* followed the Lord, and keept themselves free
* of these defections and as our hearts bifc
' cleaved to these ministers, whill they wer oa
* the Lord's side, and subjected ounelvei t»
' them, so we shall still cleave to tboM that
' abyd followeing him, and shall be subject ts
*■ them in the Lord.
7**. * Then we doe declaire, and acknowledge,
* that a gospel minibtrie is a standing ordiotDoe
* of God, appoynted by Christ to oontioiie in
< the church mitill the end of the worid,siul
< that none of us shall take u|n>o him, tb«
< preurhiiig of the word or administring tbe
*• sacramenLs, unlesse called and onUined
< thereto, i>y the ministers of the Gospel, uA
< as we declaire that we are for a staodio^
< Gospel ministrie rightlie choisen, and rii^btlM
* ordained, so we declaire, that we shall goe
* about this work in tyme to come with more
< lasting and prayer and more carelull iuspw*
* tion into the conversa>ion, and hohnesse uf
* these men that shall be choisen and ordained,
< the want ot which formerlie hath bein a greit
' sin, both in ministers, and |»e(»ple, which natb
* not boin the least cause of this detection.'
* [This will meet with the same measure u
* the former. The former was a Fiitli Mo-
* narchy, so this will be a Separation. There
< is both malice and ignorance in this caluiuoy.
* Malice iu striving to make us odious; tar
< there is nothiiiflf that will make us more odioui
< to the world, tnan to tell them we think our*
< selves more holy than all, and will have no
*■ communion with others : but we abhor socb
* thoughts, and whatever we know ot our sin*
< cerity, yet we know nothing of our pertectioDi
' and so see nothing whereupon we may com*
' pare, much less exct^ed others, hut tnecoo-
* trary ; and if any were to be shut out upoi
» that account, we judge ourselves would bellis
« first. There is ignorance in it, it not a deep
* deceit ; for separation, as the scri|>ture sod
*■ divines take it in an e\il sense, cannot l>e at;
* tributed to us ; for if there be a se}iaratioDf ^
* must be where the change is, and that isook
* in us ; we ai-e not separating imm tbe com*
< muiiion of the church, and setting up ii^
* onjinunces, and a new ministry, but cMvioff
* to jthe samp mvusters , and following the na^
STATE TRIALS, 32CttA«LES IL l6m.<^/or Tremon.
* ordiosnoif , wlien others have sliddcn back to
* new wmys, aod bave a new autbority super-
* «dtled, which is like the new pi^ce \n the old
* g^mieot.
• Eij^hllOy^ W^ bind and oblige onnelves to
^^ defend ourselvps, and one aEiiilner in our vmv-
^vftbipping^or Gof), and in our natural, cwA and
^Bdivine n^hts tnil iiberties^ fill we shall over-
^VCome, or send thein down under deliAit^ to ihe
^P poflterityf tliat tliey may begin where we end ;
* and if we nball \te pursued or trotihled any
* farther in our worshippiDg-^ rig-hta and liber-
* ties, thai we shall look on it^ as a declaring
* '^ar, and take all the adTanTacfeH ihat one
* enemy doth of , another, and seek to c^iuse to
* pen&hi all tbat sbull,. jn an hostile manner, as-
* aauli us, and to nmintain, relieve and rig^bt
* ouniefres of those ibjit bare wrong^ us, but
* Dot to trouble or injure any, but those that
* hare injured us, there being most lawful for
* tts, beiofir many thai are wronjifed ufion such
^ an acci»unt, and by sucli persiins wbo have
^* isothinjj; now over us, but power and usurped
^^■atbonty, which we shall neither answer nor
^■ickDowledtre, it' we csin do otherwise, hoping
^Hfe^tOiK) liball break otl'lbal partof tlie yoke,
^^Ppi'ffee us of that power and tyranny,' that
^y w* hare cast otf upon his account, and will
* ^ve us jmlg'es is we hud at the beginnings and
* f?ouniellon> as we bad at the !kst.* Wodrow.]
FoUowes the Icnor of the other Treasonable
Bu^y culled, The Declaration and Ti^ -
TiMONiE of the True Preshiterian, Anti*
■ Pk^laiick, and Anti Erastiau persecutinl
Party tn !^utland.
' It is not amonffstthe smallest of the Lord*s
' mercies to this poor land, tliut tber hath bein
< always some who have in^en a t^timony ot"
, * erery course of defection u htch we are guilty
^ " which is a tm'ken for God that he d*^eH
lit as yet intend to cast uii off altogifher,
that he will leave a remnnnt in wbom
will lie gluriotis, if they (through luv
p) keep themselves clear still, nutf walk
I bia wny and method, as it huth hein walk-
I nnd owned by liiiii in our predece&sont
Illy wurtby nu^mury) tber tyme, in tber
jing on of our noble "wurk of relbrmation,
* in the sevenil steps thereot, from popery anri
prelacy, and lykwaya from eraslian supre*
^ Tuacy so mucb usurped by birn •, \\ bo (it is
true a-? far as we knowt) i^; decendlr froni tli^
^ allows, yet we for ourselves and all tbat will
* adhere t<> uh, a?? the repret^entati^es of tlie true
* presbyti'riau church and covenanted nation of
* Scotland ; consideriuLf the great hazard of
* lyerng under such a sin^ d*>e by these pre^sents
* aii^wne Charles Stewart, v*ho hath bein
* reigning, or rather (m e may tay) tyrannazing"
* on the Ihmn of Scotland, and gov em me nl
* thereof, (forfaulled suverall years since by his
* perjurie, and breach of covenant with God
* and \m church), and usurpution of his crown
' and n>yall prerogativeJi tberem, and many
* other hreacbes in matlers ecclesiastick, and by
* hts tyrannic and breach of the very /r^ii rcg"
* ndndi in niattem civile for ^hich rtabons we
« dec la ire that several I years since he should
* bare bein denudit of bemg king ruler or ma-
* gistratej or Imving any power to act or be
* obe3'ed as such, as nl^jo being under the stand*
* ard of Christ captain of salvation ; we de-
* claire war ag^ainsl such a tyi-ant aod usurper,
'■ and all the men of bis practices as enemies
' to our Lord Jesus Christ hiii cause^ and cove*
* nants, and againesrt all such as bave strength-
* ened him, sided with him, or any w eyes ac-
* knowledged him in his usurpation and tyran-
* nie civil and eeclesiastick, yea and againeat
* all such aa nhull strengtben, side with, or
* any wayes acicnowletlgc any other in the like
* usurpation and tyranny, fiire more againcat
' such as woidil liclniy or delyver up our free
* reformed mother church, unto the bondage of
* Antichrist the pope of Rome.
* By this we homologate the testimony given
* at Kutbcrglcn, the twenlie nynth of May
' 1679» and all the failhfull testrtnonys of these
* tbat have gone befor us» as of these also who
* hare sufl'ered of late, and we doe dii^cloim that
' decluration published at Hamilton, June 1679^
* chiefly because it takes in the king's interest,
* which we are several! years since loosed
* from, bee atise of the foniaid reasons autl others
* which may efter this fif the l-«rd will) be
* published/ As also we disown and by this
*■ resents the reception of the duke of York, a
* protest P«pi!»t^ as repugnant to our principlrg
' and vows to the moa bigli God. and as that
* which is the great (ihfutgh alace ti»o just) re-
* proacb of our church and nation. We also
* by this protest acfniust his succeertiug to the
* crown, and whatever halli been done or any
*■ are essay ini^ to tloe in this land (given to the
Ijoni) in'prtjudice ofoui rvork of it.'formation.
iCe of mir kings, yet he bath so frure devoulit | * And to conclude, we hope none v. ill blame
ora what he ouirfit to hnve bein by bis per- [ * ns
jurie and ustirpation in church matter^, and
• tvnjunie in matters civil, as is knowen by ibe
* w hole laod^ that we have just reason to believe
* that one of ihe Lurd's Ifeat conimversies
* aguinest ua^ is that we have not disowned bim,
* and the men of bis practices, wlnthev inferior
* magistratea or any others, as enemies to our
* Lord and hiscro%»n, and the true pi-otestant
* and presbiterian interest in iher handfi onr
K word's esponscil bride and church* Tberfar
Ibeit we be for government and govern ours
* «tit:b aa the word of God, and our CQTtfianis
ns for, or offend at onr rewarding these th^il
' are againest us as they have done t^i us, as
* the Lord j^^ivcs the oppoitunitr* Thi": is not
* to «*xc!ude any that hnth declined, if ibey be
•willing to give satrsfaetion m^cornmir to the
* degree of their offence,
* the 25 June 1680.*
JUg
Given at ^anquhur
By which wicked, treaFonahJe, and seditious
papers abore repeiled* jc and yowr ireach-
erou« BceompFures, murdennjf and bloody mi-
ntstera and preachers^ bare plotted> contryved^
and intend it the death of the king'u n^agtie.
which being found b« ane wmjm j« ought to
be puoiftlied wit5 foHauUura of lyv, Und iod
(roods, to the terror of others to oooaiitl the
like hereOer.
tori STATE TRIAI^, 92 CH4R»Bt IL iGM^THglof Darii Hmkgimm, [MB
fnd the mine of his govermnent and anthoritie,
>nd the deprivation, depQs«?in(;, and suspendiog
of him from the style, honour, and kingliename
of the imperiall crown of this realme, and has
contryTed and plotted the siispendiaic of his
Qi^jestie and royall faniiUe from the'exercise
of the royall government, and ye and your
accomplices have declaircd his sacroil majeBtie
to bciMie usurper, and ye <Ud adhere and uwne
the furq^ids tr^asooahle'and seditious papers in
presence of tlie lords of bis m^eyties privy
council!, upon the twentie fonrtli day of July
instant, and that ye might i^ccomplisb these,
3rour treasonable dcsignes, impioqs, detestable,
and horrid resolutions, you and your accom-
plices to the number of ane huodretli, horseand
foot, did in the raoneihf of March, Appryll,
)lay, June and July in this instant year of God
1680, upon ane or other of the day a of ane, or
QtLec oi the saids moneths, th« said year ryse
and continue in arroes without his majesties au-
tbontie aud approbation, i^d did doclaire and
Ictle ware, a"d take up arines against him,
Vkd tho^e comiuissionat by him. And upon the
day of July instant, or ane or other of the
dfl^^of the safd moncth, did inrade, attaoque,
attault, intfan;e and feiij^ht with a partie ot his
IDSJcsties torcch, under the conduct and com-
iQftild of the laird of EarlesImlL (ane of his ma-
unties cooimissiuout officers), and did wound,
Kill and murder several! of hia nu^cstics sub-
jects and souliliers under his command, oif the
whicli seditions, treasonable and wicked |>a-
pers, convocatiiuf , ryseing, and continueipg in
armes of his majesties subjects, without and
GUBtrarv to his majei^tiett authoritie and coni-
niand, killing und niurdt'tiniir his majesties sub-
jects and souidiers, and of the other crynies
alwve mentioned, ye are aclor, airt and part,*
* 3Ir. Hume, in bis Conuncntaries, very co-
piously treats of this matter of Aiit (art) and
Fart;* lie not only investigfntes llie substance
and meaninc: of tlie chnrq^e itSL'lf, but traces to
a considerable extent the history of Scnteh
practice respecting: it, ilhislratini; the several
\ariati(»[is winch have takeu piaci; la tlie struc-
ture of tlie libel, so fur as relates in tliiii parti-
cular. B\ wliJit is called tbe lj3nl act 12tli
p:uli;pneut of kiuic James Gth, (it is not the
lotJidaet either of liis l,»lh parliament, or of
his reijj>n, but all the acts passed from the com-
mcneeincut of liis ninth pailiainent, Aujjust
lo8-l, to the eouelusion of his fifietnih, J>e-
ceinl>er \,'}{)7. are desi^rnnted by one suc(H:>sMon
of numbers, in which this stainls the 153rd.)
coneemipfif tlie relevance of libells in cases
cviuiinall, '^ It is stututc and ordaincil, secin;r
tliut diverse rxceptiones and olijeetionis riscK
ujmn criminnll liMlcs, and parties are frus-
tiale t»t juMii-e, he jilledijetl irn^levaneie there-
of: that in time cummin^, ail erimiiiail lilK-lles
sail coiiteinc that persones eom()lctiie«l tm. ar
aiit and pairt of the crimes liMled ; quhi\k
•all be relovant to accuse tliem thereof ; sua
that na exception or objection take aw^io that
yart of the hhell, ia tiuici guvmiug."
ITS
concerning the charge of art and part, ia to be
found in the first volume, pp. 299, 800, S84)
413, from which I have extracted the folkiv*
ing passages for the pur|KMet of shewing the
uncertainty of the original technical meaniBg -
of this phrase, and of im[iarting a notion of its
present application :
*' What we have here,'* says he, ** prind*
pally to attend to, is the wide comnaaa, acoofd*
in^ to our law, of the meaning and apidicitasa
ot such a charge. It includea, in the fint
place, alV tiiose relative and less imnicdiate de-
grees of guilt, the ope et concUio of the Boaiaa
law, wherein a person is involved, if ha b»
concerned in occasioning, prejiaring, ot fact*
litating the criminal deed, or lo ratifying sr
approving of it after it is done.
" But m our practice, this is a small paitof
what falls under the con: |>ass of such acnaigt}
for it relates equally to all interfereaea aai
assistance in ipso actUy at tlie very tUae tf per-
petratingthe deed; vi hereby tlia perwK tkui
concerned is not a relative or accessory offrnkr,
but a |)nucii>al in the guilt. ** By uri («iys«r
George iMnckenzie) is meant that the crima
was contrived by their art or skill, esran
arU ; by part is meant, that they were shams
in the crime committed, when it was com-
mitted, ct quorum pars ma^rrta Jui.^* Accord-
in^ to some, the phrase is to he considered at
a c<»rruption or abri«h^ent of the Latin phrase,
ofarfi/cjc et partirept. But whatever be ia
j this notion respecting tlie origin, it ia oertMS
I that such is the purport- and tize<i const rodisB
j of the phrase ; an<l that the books of adjournil
j present us with frequent instances of Kbelt
I which bear a conclusion of art and part, sub*
I joined to a narrative of such eircumstancti^
t as go to ])n>ve the {KUinars presence and ca*
I operation at the doincf of the <leed.
** Hut the chai-ge of art and part has ben
undcrsti»od uith us in still another and a
broader, aud certainly not so obvions a sense ;
so as to be applicable even to the case of a
•simple and indivisible act, which is set forth is
tbe li!>el ns executed by one fiersoD only, widi*
out tlie assistance or company of any other.
Thus, Mai^aret Ramsay, March 5th '1062, if
sent to trial on a ciiargc of child -murder,
which proceeds as folln-vs: ^' For that liaririr
lK)me and hron<;ht furthc ane living man cbvM
on the 1st October 16<>1, immediately alWr
birth thereoC. cruellic and unnaturallie miir*
dered ami killed the said chykl. and vu tti
onhf aclor y airt and pairt of the doing /Afivo^."
Tli'p accusotion of William Doils, August ttdi
l(ki3, is drawn in the same style. AAer rr*
lating that he lay in wait, abine, for AndriV
Hardie, by the aide of the highway, aad te«
amaulted and stabbed him vrith a dnric, iht
hM eoDcladia thus : ** and wa
STATE TRIALS, 32 Charles IL l6«a-/or TVacMM.
C8W
poil^tpil and aeeusPfi, that wer
be the lawe of God, bwes
t of lUis kingiloxDe, llie
^ red by the said Wil-
\e only actor, airt and
Mki Doiis wa£( coQirici^
S<» likeHt^, January 81I1 l<iG4v
Ini? wa<^ rvuvirrtfi (atnot)£f otlier
' the Uit 1 1 gooif^ miin the
rih^lBM h n ; as to which
lib«l closes witii these words^ ** aad
ly iMiior, airt and patrt of the said
(I tiie Mme year, June ai>ih 1664^
if»«B waa imn% ta an asaize on a libel
» which relates that he killed the
rkU a blow on tbe ear ; and U
Mt ** and ana was cruelUeklUcil aoil
Jic aaid Makolme Brown, and be ia
, atrl an4 pairt thereof/' Farther
1^ 160^ the indictment of Wil.
sniff for die murder of WilUam
ilailbal he alalibed him with a durk,
k betny- l>v. as far aa is alicg-ed) ;
^uft he wa» crti-
tic tlie *)U ;u Moocreiff, aaJ
\ only actor, airt and (»atrt thereof/^
klao wta cooricted. On the 31st of
MNitli, another convtctton was ob-
li of Tbofnan Mow, Novr. 91gt
Ri! r ^ ' Wriifht, bv
i inrbt,"«nil
l>rii \¥iih liieoniy actor, airtaad
It"
|^U?ume introduces later casef
I^K aame doctrine.]
Sffielte, and especially in its a|i-
^OMaaefftiialtacM Miliary and an-
:. orof ocie which k libelled to have
by tereral persons, all of them
I Sdif • en tlte occasion, the gt nerii
Hi and paft liaa a double nieanin^^
than one purpose. In the
accord tn^ te' the prose-
h, and aa statr^l in his Itbel,
Iraroe in conformity to it,
V of Seullaod the pannel may re^
^ i proaevutor to awear to bia
aod tfifHtnency of tbe
See II nine's Com-
iici^ and ibnt it
•' ihin^ wa? truly
«Mi»iatnnc<>, or at tlm
nt, nr the lilcp^ *>f the
in th« foil
■- -iJ
Ifto tii» BiiMtis ami i^adtty of tbe
crymea of murder and nianalau|fbter, cape-
daily iaicrilcgioos murder coiutumed upon t
father of the church, the archbishop and prU
mate of the kingtlome, and one of the lords
pannel's ST^ilt, but also to the mode and coarse
of evidence, which are to serve towards hie
coitvictioa of tbe chargpe. The meaning of it
is, that though there may not be evtdenotf
against the pannel, by the direct testimony of
persons who saw him do the deed, strike tlia
mortal blow, take the purse, or the like, aa
charged in the libel ; or though tbe prosecutor
majr ttiil to establish the precise story and train
of circnmstances, there related, in conAniiatioa
of the penners gfuilt ; yet itiU he will estaUiah
stich a story, aud shew such circumstancee
and presumptions of one kind or another, sucb
indications, or tokem^ as they were formerljr
called^ of ttie paonePs baring been eonceroed
on the occasion, as shall, by kieasoAable infer-
ence and coa<;tructiou, serve to oonviet him of
the matter libelled ; aiid this either vm princi{kBj
actor or as acoomplice^ eccovdiag to the nature
of the caae, and the cifciunstances that khall
be proved.
^^ That these are the several uses and appli-
catiotis of our charge of art aad part, and thai
such is its broad aod varioQe construction in
practice, is plain from the history of the form
and tenor of this member of an iudictmetit. It
appean from the statute of James 6^ 159%
c. lySy that, according to tbe course of custom
at (hat time, the prosecutor was iu tlie use of '
liiielliog the matter of his accui»ation much afc
lar^e ; with a full detail of the pannel's coo-
cem in the story, whatsoe«ser it was, and ef
the circumstaocea wbicii seemed to involve
him in the fuilt of ilie case. Ami as this was
usual in tlie accusation, so tlie prolocutor's
hope of success, was to depend on his esta*
blishing the precise state of tacts and train of
presumptions related in his libel. For if the
proof pni<loced any other series of circum*
stances, how conclij^ire soever of the panooi's
^uih, or if heshould appear to have had a dif.
tercnt, though equally crimimdsortoi'cenicem
in the bu^tiocss, the Ubel Wfts notproved, end it
behoved the jury to return a verdict in bis
favour. Now here was an obstacle to tbe
course of justice, beeauae, iiflcr emp^tn^nH
due pains, the prosecutor might soUMMi \m
misinformed, or imperfectly inslrficted, witit
rc;^Tird to the cirriJnis»:inc«*s of Iho fact; and
tluis tie miL^lil tn sliori oft'i" ttm^i ii» Hbi'lline
'' ifmcl» in
!Hini««ed;
tiu: evidence mi^ht
\n suHi particularly
h«^t he hi v^. Tooni^
i.'fT!fore,tti 'lufineeesHirT
>i!Mrifn>Hs, our iL^^isIniurc t rH,»,rntt*fl to a nevr
law, [the statist,- i:.:i, 12 Pari, Jmmm €,
printed almir ' ' u- recites.] Thu», under
llie broad n : 1 injunction of this law, a
general rhut^fcu ,»t,^ aaidpart becMnraD oidi-
nary^ ormibef a.aeaeafly« aaiao* naorotil
or, i»u t<ikiu;ts th« provii,
torn out very ditTcr^itly
STATE TRIALS, 32 CtiAftlES !!• T6S0.-.Triflf ej Datid Hackdeum,
¥
I
of bit majMtie* tn^t bonourftble pnvie councill,
ftre piimiibBbte wHb tbe paina of deftth and
confiicationofmoTeaMes ; vet ye th« said Dsvid
Hadtstoun of Rathilet, fiafing- conceaved a
cruel L hatred and deadlie malice against a re«
Tcreiid fatUer io God, the deceast Jaraifs arch-
bishop of St, Andrews^ priruat and ni^t-apotitan
of this kifi^domf", aud one of the lords of his
majesties pririe couQcilt, ve and your ac«com-
l^tioes did upon (he third day of May 16f 9,
cmeUief sacTalegiQusriej and inhtimanlie aasauJt
tbe faid archbishop when he was travehn^se-
curlie in hii own coach to St, Andrews witbin
two rovl« of the said city^ and upon Magus-
muir (lid most in^ickedtie and furiouslie dts«
charge ftevcrall ^botti of pistol Is » carmbios,
ttonable member of " all crimJDall libelles/'
ivithout ejtceptioQ efen of those, where, ac-
cording" to ibe storj* told in tlie libel, there may
aectu to be do rooiDf strictly speakings, for a
charge of accession. Because it may turn out
in the trial, that thb story is inaccurate or im-
{lerfect; and yet a new atate of *acts, or a new
tniti of ctrca instances tuaj' ap[>€ar^in evidence,
sufficient, in its own nature, to involve the
pannel, in one character or another, in the guilt
of the case, and competent therefore to be
proved in terms of the act of James.
** In conclusion, it appears, on the whole,
that under the general charg:e of art and part,
as authuri<^ in tlie statute of James, the pro-
secutor has a twofold advantage, Uem*^ not
only freed from the necessity of setting lurth the
mode of the pannel's aC€esii*on, or tlip detail of
circumstances which press the suspicion nf
guilt on him i but haviuf^ a security also
a^nst the tffiect of ail such vanattons of
his proof from the lihet, with respect to the
manner of doing the deed, as do not alter or
take away the fundameotal charge. For m-
ftanc*, in the ease of Nicol Musiihet, [he be-
in^ in November 1720 indicted of the murder
«1 his wile, the charg^c in the diltay wa^i that
OQ^ &r. he did in a most cruel and barbarous
manner under cloud of night carry Margaret
HalUiisspousetx) the king's park at Ifolyrood-
house, and then and there did wiiruHy ai>d
wickedly murder her, by cuttings her throat al-
most i|uite ihroutfh, and jfiving^ her several
oiher wounds w hereof she died ; with a charge
of art and part subjoined, which was sustaiueJl,
and Muscbut w-as convicted,] If it had ap-
iieaiTd in evidence that tlie pan net was not
nimself the actor on the occasion » but had pro-
ciireil ami hired anothtr to dispatch his spousf
in the munner libelb*d ; or thai he had an as-
sociate iu the business who did the deed, iihile
he watched at a convetiienl di«ftance,to prevent
interrupt ion ; still the tii>el ^voulil havi* been
good jA|piiiist rHuschet. For still true it i*as,
ihut, tune iind place for#said, IVJar^raret Hall,
hissiKPUse^ was murdered by cutiin^j her throat,
and that tht^ (lannel was art and pan thereof|
as hbelied. i
** Or state the case, that John aid James are {
indicted of inurdrri as actors^ or art and part ;
baebats anil musketts upoo ibe
within whilk the aaid arrlibi«ho|» aAkl
daughter wer for the tyme, and bis fraoe )
ing opjiined the coach door, and com« *
to you, and fallinj^ down iijkjd liia
ginif mercy, or tyme to recommend
to Go<i, and pray for you his tnufderer, "
cruell inhuman and sacra legrous were j ^
^thout pitieing- his gray harrs, <ir the
of his weepiop- daughter, or respecting I
racier, or office, ye did most furinusl
cruellie give the said archbishop iiuuiy
cruell and mortal! wounds in bis bead, i
other places of his body, atid \ti\ him, dead aod
murdered upon the place in a roosl cruell lod
lamentahle manner, * and in toekeo of jacr
and that the deed is related in tbe libel at doet
by John who stabbed the deceased witk i
B%vord, whde Jamps held bis bftmU, and db«
abled him from standing nn hia ddbct
Though it turn out on the trial, ibal tbe hd
was othcn«ise, inasmuch as it wa» James vht
slabbed the deceased with a swoni, while Joha
held \m hands ; still the iudiciment sbatl be
good to convict both John and James.
still the bottom and substance of the
tjon, tbe time, and pluce, and tnaiuicr
murder, by stabbing with a swoni, are
and both pannels are guilty thereof
part ; which clearly falls unili^r the a
the general chnrge in the libel.
*' The charge of art and part is
equally to accusations of e% » rv ^ol i :
so to indictments on u !
creates 9f»me new o^eiirr
in our practice,' as to one i&ud :it i tiiuinoo its,
or on any of our old 8cottLsh acts. For il^
though m virtue of such a statute, tbe cfiaii
or gudt be made the same for both part» of tk
kingdom ; it no ^'me follows that tne way d
prosecution and trial iu the two conntius a
to be the same too, nor that our pt^^ ' "
be bent aod aooomtooilated to th
On the contrary', as tn each C0utitr> mt- I'lv^-
cution must be 'before its own courts and taagil'
trates, so must it also be con*!"' '"^ ••♦ ««ri,
according to its own custom a fpr^
eei^s, no matter though in con ^^ , ii tk
d liferent rules resjpecting the tnai ot aeee**
saries, the tnnixe of tbe prosecutii^n t(ilhet«f
countries may sometiines happen to be ^
fereot.**
^ C*oncerning the archbishop Kttarp, aadsi
attempt upon him, ^hiclk ] autti^
some years beibret sec* in i f<l. ^
p. 1907, the Trial ol Jame» lm ncnei.
Wod row's account of this trenKactiua, aa^ lol
reOectioiis upon it, are as follows :
** Bishop Sharp had been som** tlni <; in TJa\'
burgh, putting things in order i
to court: be had, upon the fi
tbe proclamation anent arms i
14,) passed in council with >
and >lay f^ in the aftcmooD, bu wutt ^>^va i^e
\^2
STATE TRIALS, 32 Charles II. l680.— /«• Trnnn.
S13
^hUI of ifae foresatil horrid, im|iious sad sa-
SpiI«gioi]« murder, ye did not oofn|i^ar m the
tonii of St. Andrewt iiuon the tbreteint da> of
^^ - .
^Brib, ami came to capLaiii Selou^ house in
^Brououay, where he loiJir«.^aU ni^^liL If auy
tiody came that Qii^ht to Keiinouay eiK|uirjng'
[814
the said moneth of May 1679, nor m the touik
4jf Coii|)^ upoti the sextelnt day of the said
moueib, oor within the Wub of Ktrkaldig upOQ
** In ihdr going ioirardsthe coach, ooe of the
compaiiv proposed lliat some mie shotiM uko
the Jeadint^ and command uf the re&t, nnd that <
about him, as tlie pnntt-nl accounts by the pre- they should exactly obey his orders ivlmteier
fell mil, aod Ralhillet, notnitbfitamliriir' his op-
poisition,|was g-etjf rally nsirocfd, Uyt be loUl ih^iB <
tbci*e had been a dmerence betwixt the arch-
bisbop and him in a civil procefis, wbcrelu he
reckoned be was iirronged by th«; pnmale ; and
thuu£^h ill anv other case be would no| refuse
to do them afl tlie sen ice be con Id, yet by no
meniJH coubl be at all act in this matter ; and
be Wilis of opioion, that it was* very improper,
tbouifb be could joy o with tbeni^that bekbuuld
couiiuand them, since it would |five the world
|mriy say, J am assured it was none of
people who fill in wilb bini lo morrow.
y 3, be went bomf ward to St* Andrews,
Umk Ceres Jii bn viiy, sliippt^l there,
smoked a pipe v^ith the rpi«icopal iticutu*
t.
The persons before spoken of, uine in
ibcr, some of whom were g^entlemen of
families, being tond of a meeting with
ijcbael, came abnud pretty early upon
Hatnrdiiy morning-, and tiaverbcd the fitflds
ond down fiearchctf the bills above Cowpar,
' some other placeu, ^nr some hours, but dirf
noi (ind biuL The reason of tbuir not finding
iiD, as the aliove accounts bear, woa, that
^a Carmidiael came nut tn bis bunting
III Scotstarbet^ a shepherd ibercabout ad-
the baity to j^o hinne, Ibr s»ome gentle-
had been enquiring about him ^ at him, and
wry desirous lo iiitet with bini: and
[ichael, not without some fear, retuminj^
\ his sport, went homewartl,
** They continued aearching- till near the
fd)e of the day, and by tbi^ time they were
ic about a raiJe to the 4aiitv*ard of Ceres ;
being ^^earied, and beginning to de«pairof
ting' Hitb Citrmicbael, ibey wtre joj^t tatk-
loffether of parting^ and nuittiug- tlieir jiro-
jeci, w ben a boy, a servant o^ Black
m fartDer therealiuuts, came up with them, and
infarmeil tliem, that tlie archbisbop^s coach wa*»
in Cere«, and within a little lo come up towards
plebfsliole, not far from them.
*' Tills, as some of them in their account*
tty, did icrv much surprii»e tbem, and raised
tnaii^* tbougrits of heart ; the incident was so
odd, that just when parting-, and ^i^ing over
tlietr neat cb for ibe servant, the miitjt&'r should
^Itutu ijieir bnnds : thai wbe-n they liad mia«-
<d the enemy iliey were looking for, their arch -
tmemy and touiitain of all tbeir wu SkhouJd fall
|tt iheir way^
•♦ One ot tbem said, It sevms be is delirered
into our handti, and proposed ibey should cut
him off, having such an occasion. 3rr. Hack*
tt^un of Hatbillet oppn>ed Ibe motion, as
besinj^ a matter ol' bloixi, and, a^ bethou^^ht, of
ike last conse<[nence to tins nation and churchy
and what requirnl more di^bb-eration by far.
Bot what he very stronffly uri^ed was not of
weifi^bl eiioiJifh to stop then* from the attt-mpt.
1 tind some accounts adt^ that alter reasoning*
Ojjon this he^d, one of ibem prayed (i^rroudutrt
and direction; and after tbaC Hatb^det tM
tlH-m, though lor what be saw, ibt^y s* emed tii
lie clear to ^o on, yet Im; nas not at'all satixtietl
in hiM own tnind aneut it. Howevtr Ibe rest
Yveot forward in their dei»igii, and h« would not
p«ftviith th«ia.
ground to fiay, that what they did, was from
iversmial piqne anri revenue, wliirh be pi
I piqne
tree of.
protested
They all declared tbeir having
no pei*»onal grudge at the man, but at bis way
and practice, and so chose another of their
number to be tbeir leader.
*^ By ibis time they were come to a littlo
village about two mdes from St, Andrewa^
catted Magtis, near to which they descried tbo
bishop's coach ; whereupon ont' 4if tliem, opOB
a Beet boriip, nnle up to tlie coach ^ to see if tbs
bishop was in it. The bishop noticing him,
cried out it* the courbmao lo drive. The gen-
tleman bearing this, cast Ins cloke fromhim«
and pursued at full i^peed ; the rest did the like*
and came nu as iiint as they could ; only tbo
pers^on \ibobad the debate with the bishop kept
at some distauce, and did not at sU engage in
the action.
** While pursuing a little this way in Magtm-
muir, one of tlie bishop^s servants, named Wat«
lace, turned upoe tbem^ and cocked his piece;
but two of tbem coming up, soon dismounted
him, and tcMik his carbine from him. McftivJ
while, as the coach drove turiously away, ihej
shot their nms<(]uets at it, but could not stop it,
till the person upon the fleet horse came np to
the coach, crying out, Judas, be taken. The
primate called^ tiie more violently to the coach*
man, l)ri\e, drive, drive. Tbe coachman kepi
off the gentleman's horse from him with hit
whip ; but he came up with ibe postilion, and
called him to stop ; and he dnving on, bo ,
struck him over I he head with a sword, and
disnjounteil hinn and .straightway cutted tbo
traces of ilie toach, and shopped it.
*^ By ibis time the rest were come up, and
found tbe bishop and his dungbter in tbe coach.
The captain order efl bim tii come out, that no
prejudice might belall bis duu*tbti:r, whom they
would not willingly hurt^ This he refused ;
whereupon two ot' tlieni, tbe rest being taka^
up in dismounting and securing the serraDta,
pouriid in their shot on the hisbop^s botiy, hit
daughter shrieking and weeping most bitterly,
and were mounting their borates to go off, m-
tnring themselves lie was killed. But one of i
them heard his daughter say within a litllei O I ^
«1&] STATE TRIALS, 52 Chablis II. iWC— Tm/ ^ t>9M lAeMmm.
(he twetitie day tlierof nor in the toon of
DamfemiliDy upon the twenlie third of thf^
tame month, dayef and p1«ce« appointed for
examinatton of tlie heritors, tenneuL^, couani
there ia life id yet ; npon which he ^ot a^io to
the coach, nnd cnlltMl the captain, und the
othenft Trho ibimd the hishop safe aad whole,
not in the least touched.
** Whereupon ihr cxiptnin commanded him
to oome out^ and some discourse passH 'txrixt
Ibeiii, wtiicb I shall set down« as lelt nnder the
luHHk of some irhn were present. While the
Iwhon HngcfCfJ, and crieti for mercj',the com-
tnaniKr said, * 1 lake Ct<«1 to wetness, whose
* cause I desiire to ovin lu adhermg; to the jitfr-
* secutel gospel^ that it is not out of any hatred
* of your perstni, nor from any prejudice you
« have done or couhl do to me, that I intend now
■ to take your hf*% hvit because you have been,
* and still continues to he ixn avawed oppo:ter of
* the gospel and kingdotu of Chnst, and a raiir-
* ittet Of hrs saints, whose blood you have shed
•like water/ Another of them said^ * rrpent,
* Judas, and come out/ All the bitihop an-
twereil wa&, ^ Oenflptneo, save my life, and
* I will save yours/ The first replied, * I know
* it is not in'your power citheT to save us, or to
* kill us ; I aguin det'hire» it h not any parti -
* rular tV'ud or quarrel I have at you, which
'"I moves me to thi>* attempt, hut because yoii
^aris an enemy to I'tirist and biis interest, and
I have wrung" your hands in the h|oud of his
^saints, nut only after Pentlaud, hut several
* times sime, and particularlv t^>ryour perjury,
I mad shi-fJding the hhiod of >lr. James Mitchel,
^and baling a band in the death of Jamei^
Lermont, and your perfidious betraying^ of
^ the chirrch ol 8cot]aotl : These crimeJ, added
^ he, and that blootl cry with a loud vutce to
^iiftven for vengeance, and we are this day to
»il/ And again he ordered him to
„^out, and prepare for death, judifment, ami
dernity. The bishop still refused, and cried for
metcy, and offercJ laim money to spare his
life* The captain »atd« Thv money perish with
llftfe, and totd bim, he allowed him time to
pray, and commanded him a^n to come nut.
TliL' bishop still refused. One of the company,
|pl sKimu di«tiince cried, * secini^ there bare
" been so many lives, unjustly taken by him,
•for which there is not ihc least sis^n'of re-
* tienlnnce, we will not be innocent, if any more
* be taken that way.*
** Then one of them 6 red a pistol at him in
the conch, which it seems did not touch him,
(find another wounded him with a sword j at
rhich the bishop cried out, Fy, ly, f am gone:
Ijet the wound was not mortal. And beiu|^
l^aiti calleil to come out of the coach, he said,
IB MQ gone ^already, wh At needs more P Then
ey stepped near him, to pull biro om ;
fim whidi he crietl, I know ye will save
life, I will come out ; and according^ly
s^ont. Audkin^ ai^ron pressed to pray,
H dbwn upon Kia knem betbre the captain,
'ftadwd^ Rw Godfr 8afce>- i»re my life, larc
and serrants dwelling with in Ike thytci i
Fyff and Kinross, bdfbr the sheriff dn«li
the said shire commissi onat for e *"~
them, in |. esence of ihe witnejs
il^t
my life ; oHerin^ him money, and
to lay down his episcopal funriion.
mander told him, he had been wttboat
and needetl ejcpect no mercy, ond be enuld
spare his life, and again pressed him U»
tor death, and |>ray. One of these pi
drew <^ui3lan,tohrmy infonncr^ that
stunned to see his cJirria^;*', aud ihall
means would he be prevaile«l wiili to pm]
another ni - --"'^ iKnl they were tsiighf
prisetl at eticss, and ihfti thai
not (he Ii-. - ^ . t cn»iocm about him
This Andrew was pre^»cnt, and did noiloiidi
him, but endeavoured to secure hts diirtlff
fnmi hurt and danger, when she w^itld |iNP>
pOBo *'wixt ilie actors and htiti,
*' Instead of olferin*;^ to i»ray» be,«««iif lb-
thtllet at some little di<titnce» credit tMVtril
htm on hi' I haw
you are a e, Wf,
Hackstouti luiM^ etni. lTiij . i ^n,i:i nrvertlfl
hand on vou ; and rode a little off, for dlttii
time he Jul not aligrht.
*^ The bishop tindine this «rt to M kiBm,
turned to them, and be^^.'-'l iX^^v m'iahntm
the lite of an old man, n wdoM
obtain ibeiu a rem iiMon, i I M at-
tempt the life of a privy 1 1 TU
captain warned him that titey i tpi
him longer ; if he did not addrrss ij«d pft^
sently, tbef knew what to do. The binofi^
courage still continued, and he proiHmed mm
new desire; upon which they uischar;^ ^
other shower 4»f shot ujwm him» wherei^QS h
feH backy and lay as dead.
*' But one of them p^'r- - ' — n prick vlii
his sword, he raised bin ; tnev kigM
to imagine shootings wotili. ,,,,. ..vr, ^ud tbeooiB*
mander ordemi them all to draw^ their swiitdL
Andrew Guillan^s expression to tuy inft^nfirr it.
that, npon the sight of cold iron,' i
his courage faileiJ ; and thou^rh U ;
insisted in his petitions, Hud »ermed n\A ^
regartl their warnings much, yrt no* ht
mtide hideous aud terrible shrteka asefo* wflt
heard.
»' The com mander »et' xwauU
preTatl with him to go al > kt yrf
]>&ratiott for death, with n mi i k biffl
on the fiice, and one of bis t ftewa;
he e^tiyed to sjk 5^"^
understood. Tlie\
wounded him in s<^v^ .
outright.
AlWr thebisbop^ii
i-.. , i :icdhi«
(killed, the esiit«afv»
ceived any arms wtiich the serrmnis Iwfh i»^
were frve, two riders, a foolnnm, the rnad ^
and iHJitillion. He ordered ti *lS
their pajiers ; they said, thi ^
he went to the coach, and c
and rinding notliin^ in it hwl i
beloD^g to the bi&hop's datigtncr, it tf »» t
|irc9Pfit at that execrable murder ; an<f notwiib -
flUijdJri^ h'm majestiei^ proelaniation, deleil the
fbofttl of Maj the j^aid year, requyrifig; tliem
tbereto, beai^ eertiHcatiun, tliat such c»f the
STATE TRIALS, 32 Charles If. 1680,— /i>r TYeoion. [818
tennaiili, eottars, serrauts ami others^ asshoulA i
be absent, should he rt;iiutcil as accessory tO 1
the said cryme* and that the ibrsaid procia- ]
ttiatton did sii^ienieid all execution upon letters
in again. He found another Jitrle box with
|ia|ieTa^ whirh lie seized, fn a tnnsk upon the
coach he found a lew tun re jjapcrsf and a larj^c
Ub\e fall of tine cuts, and th<f imluves of Christ
and the New Ttstament Sanris^ and s*»nje pas-
^~ne« of the history of the? IMUh- in Taliduee,
I a case oJ'very fine Fi ouch piittils, all uhieh
took. The itst of the trunk euntuinrd
besajid forailure^ which Uiey dtd not touch,
r; notliinj^ but |iupcr»i and arrus.
n the hi^ho|i's pockets they found neither
iKir g-cdd, hilt only some letters aud pa-
Bd a whing-er irith silver roves, and
lutbrm. Several of theibremeiitioned
bear, that ihey found on the hJ6ho|{ a
some pistol-^11, fhreadi of worsted,
ADd other mid things in it, tvhich tliey kntvr not
Kit to make of
This is all I have lupt with a? to the luate-
circtmistance? of this lUct, and I hcivc jfiven
1 found it in papers which are writ by por-
tions present, who only indeed could <»ive ac-
(K>unts of tliiii matter ;' atid they Hgrre, as far
ms I can learn, with the accounts which went
up iiud down after the murder was oomioiltcd.
All tliis took np about three quarters of »n hour
jhpai mid-day, Hwjxt twelve and one of the
^K^, ^turday May 3, this year,
^^ A% they vVent off, they luet a man very
wdl tnountefJ, and asktno: hirn what he was, he
aHi^erpd, <iuc of my lord bt. Andrews's ser-
tiiits, whom, it seKms the bishop had sent off
tin pay his i-e^pects to some persons alxiut : they
kBiouiited him, took his arms trom hiiti, and
^B« away Im horse to shitlt for himself,^ ah they
^Bformcrly douc to the other two riding ser*
^Bls, aud thu^ rode away in a body to a place
wifte or four iiuWh distant from Magusmuir,
where this nction was done.
KThe aclo!^ iu this blnmly tragrdy could
>ut wonder at their own preservation, and
^ when this fact was a doiuj^ in the open
I, at the heit^ht of the davi iu fhls season
be year, and e^o many piVees discharged,
Wty were neither inlerrnplcd or discovered ;
anci this WHS tlif^ rtiorc stnmge to them, tliat
Hiere were fiohlicrs lyin*^ upon every hand of
llieiD, in Ljir^o, B^dchristie, Lailernie and
Cowpar, aU tvttliifs a very few miles of ihe place,
hes^de parties of troopciTi continually mngiuji^
up and down the shirts ; and yet they gr>t off
wtthmit ob^rvatjon, and continued together
till tiifcht, looking" over the ptipers they had g-ot,
•* Among the paper's tht- y found, these are
tiie most considtr^^'l'- ^ sritV of nonentries
of seireral gfcatlem- loFiie, and else-
where, to A Iciiimh I Kinninvie, with
instruct ions and informTitiuoiii how to prosecute,
in onlcr to the e^ictlou of the lands, the patent
0f the hiAlroprick of Dutikeld, in favoiub of Mr.
Andrew Brtkce archdeacon of St, Andrews, se-
preieQtatioiM to churchei whereof the
Tat, X,
king^ is patron^ instructions to conjunct depaties^ I
and new gifts of tlie heritors frues, a iiaper I
about popciy, wheri'of a t'ull account could not i
be g-iven when the information witeuce 1 take [
i\m was writ, several mif>iiives, and other papers i
of HO consequence. i
^* After they had lookt through the pap«rtf^ j
they eontinuecito|j; ether iu tlie foresaid house
till the evening-, and then separated, and every
one shifted for himself the Ust way he might*
This is the l)est acconnt I can ^ivc of this mat-
ter; and in the matters of fact there is a con-
cun*euce of two or three accounts 1 have seen^
none of whicli that I know of have been printed,
and therefore I have given them at the wore
length.
** They are indeed all upon one side; and
therefore* in a matter of this nature, which only*
can be fully known by hulanced accounts of !
both sides, 1 think it but fair the reader should
see what is said upon the other side. As far
as I have noticed what is printed, there is ae
very great ditlerence as to matters of fact j
iliere is indeed considerable dilTerence as to th*-^
carriage and character of the bishop^ The
written accounts I ha^e made use of, represent
him as most avei*se to prepare for death, and
the printed accounts represent him as a saint.
It is my business to give matter of fact as 1 find
if ; and therefore that the reader may have the
other side of the story* I have insert an account
of this matter, published by authority and order
of the priry conucil. The former accounla
arc taken from the actors* papers aud relations^
and this from the bisbop*s daughter and ser*
vants, and 1 shall make no reflections on it;
only, the muticrs of fact formerly related ia
this history, and the known tenor of the uri-
mate*s acting's, give no fouudation for sucii ik
character a?» the bishop gets in tliis papr.
" Some f^her accounts of this matter I hare
seen, which I shall very shortly paiis. One
was printed at l^ndon.a lew days after thia
fact was done, for D, M, which is the tlatteat
and most in'*ipid account i ever almost saw of
any thiug, and it deserves no furtlier notice.
Another account was published about the same
time, intituled^ A True Relation of what hasbeea
discovered ctincerning the murder f>f the Arch-
bishop of Sj, Andrews: whereiu this murder lA
htdged upon Ralhillet, and bis brother in law
John Balfour of Kink»ch ; and these two oer-
sons ore ropiesented to have been wrongccf by
the primate in some civil affairs, and to have
murdered him in pique. This paper was an*
swered by another, intituled, A Clear Discovery
of the FaUhoodsof the former, wherein indeed
the matters of fuct advanced in the former seem
plainly en<>ne;h overturned i but when tbia I*
done, very htile light is brought to this matterj
and therefore I i^ay no more of it : only it ap«
pears to me undeniahTe, that HatbiOet was oQt
81D] STATE TRIALS, 32 CHARLK5 11. iSM^TrtMl of Dmi HMkiiam, [828
or caption, or intercomoniDgf, or aoy other war-
and for securio^ of smy person for any
cause, tor the space of fourtie eight hours befor
and ei\er the foreaids dyets of appearance,
svctively concerned in tliis matter. And as to
John Balfour, thoug^h it be true what is in this
paper asserted, That he had withdrawn from
oruinances for m&ny years, and was verv active
about field- conventicles ; yet a person's doing
so will neither make him a saint, nor make the
people he jovns himself to, chargeable with
every thing he does : and I cannot find that
this ffentieman had ever any great character for
religion among those that knew him ; and such
were the accounts of him u hen abroad, that the
Kverend ministers of the Scots congregation at
llotterdam would never allow him to commu-
nicate with them. Indeed upon him I find this
action is g^euerally and principally lodged.
** A third account of this matter 1 find in
that virulent pamphlet formerly spoken of, in-
titided. The spirit of Popcrv speaking out of
the mouths of phanatical Protestants, Lond.
1G80. This wnter hath little of fact, but what
is taken out of the council's narrative : he adds
the certificate of a physician and three chirur-
^cons, who inspected the bishop's body, to prove
tliey found one wound below the right clavicle
by a shot; and in the same certificate they de-
clare, they found three wounds in liis lift hand,
which might have proved mcrtal, though he had
had ne other. I am so ill a physician, as not
10 understand how a wound in the hand in itsf'lf
can be mortal. He adds the nnnu's of the iiinr-
derers in red letters, Julin Balfour of Kinloch,
David Ilackstoun of llathillct, Gt^orge Balfour
in Gilstoun, James Kusscl in Kings-kettle,
Unbcrt Dingwall a larmer's son in (*addam,
Andrew GuiTlan weaver in Balmcrinoch, Alex-
ander Henderson and Andrew Heuderson sons
to John Henderson in Kilbrachmoiit, Gcoi-ge
Fleming son to George Fleming in Balboothy.
As far as I can learn, Andrew Guillan uus
only called by the actors to look to their
horses, or some such thing, but was not
active, though present at the action. Two
Hendersons were at\envards imprisoned 1682,
on this account, and let go. Huw many other
mistakes are in this list, I know not: in-
deed this ^vriter hath too many false facts aiul
blnnders for me to follow; neitlier shall I con-
sider what he pretends to bring to \ imlicaJe this
fact fiponi Presbyterian writers, Knox, Napli-
tali, Jus Populi Vindicatum, since none of bis
citations come ut all up to this ca^^e. What
follows in point of history, anent the Ffigliland
host, the munlir at I.6wdon-hill, and mrjcr
JohnstouD, is false, and his misrepresentations
are already takeu ofi' in the former part of this
history.
*» The last account of the bishop's death I
have met with in print, is in the Caveat for the
Whigs, Lond. 1711» part 1, p. 57, wherein all
the spiteful lies any where published seem to
be cast tog^ether. It would be tedious to go
through 2ie miBtakes of this ill naturod aod
that they might have saifflie come to and
gone from the forsaids places at the aereral
dyets of appeirance, without trouble or impe-
dement ; and also, ye having bein inquyred
malicious author in this matter. What be talks
of lists of persons to be murdered, handed about
with the archbishop on the head of them, of tha
relenting of the assassinators, their tramplbg
his daughter, and many other things, are un-
known to such who were present. The ren-
counter was certamly undesigned, till they got
notice of the bishop's commg that way; aod
they were so far from being stirred up by field
preachers to it, that tliey themselves uad do
thought about it till the hour in which it vu
done. The Christian temper of the primats
at his death, which this writer harangues oo,
is very peremptorily denied by such as wert
present, as we have seen ; aud 1 very nuich
jealouse those religious expressions are made
for him.
" Thus on both hands, I liave laid this afiir
before the reader, from what I have sesD ia
manuscript and print relative thereunto; and
though many remarks might be made upon die
whole, yet 1 shall confine myself to one or two
which are properly historical.
'* One is, That as none of the real atiors
were taken, so, when the murder was otct,
they came out of Fife for their own safety, and
joyn^ themselves to those who attended then
iield- preachers who set up against tlie cm
and indulgence, of whom before ; from which
the English papei-s, yea, the narratives of die
after acts of council, as we shall, hear,' had
the risers at Bothwel with being art and part ia
this action. I do not question but several of
them were at Bothwel for their own safety;
but it is very ill reasoning, and unfair to lodg*
this fact ui>on the whole party, when pcrliapv
not one of a thousand knewUicm, or uhattbej
had done.
"Another is. That this incident of the
bishop^s murder became not only matter of re
proacD to the whole suffering presby teriaos, as
Kathillet fairly insinuated to tlie actors, though
indeed the calumny was gcouudlcMj, us h^
been noticed, but also the occasion of very
heavy oppression and persecution. The prclaiei
and eouiicil took hold of it, as a handle for pco-
sectKiug the cruel designs the primate was cut
off ironi finishing. This was made use ot as a
shibboleth for many \ eai-s, to vex poor inno-
cent and ignorant loiintry ])Cople with, wbeo
Seizwl : and so far is it from truth which Lesly
advunceth, Cassandra, No. 2, p. ' That tfii
< worst of the primate-s enemies liad nothinf
< lay to his charge but episcopacy,' tbat he
was generally lookt upon as a very ill man;
aud the impressions of his wickedness, with
some other things before suggested, made not
8 few unwilling peremptorily to jud^ of thii
action, which a great many others had freedom
euough to condemn as murder. Seven! wcfi
executed as accessory to his death, who wist
entirely frse •!' it, and many othcn harascd
821]
STATE TRIALS, 32 Charles II. ifiSO.— >r Treason.
wbitber tlie murder of the bte archhishup of
St. Aadreirs wm a murder, you declatre<l that
it was non. And fard^^r, the comniissionors of
jusUciarv liaviiig inquyred \oii whitht^r ye
irould deny tliat ye tvas |*^uilly of the said
mtmicr, you did refuse to answer, or deny tlie
Upoti that score, agaiast all law and justice,
sa shall be noticed in tlie succeeding history,
" Upon the whaJe^ Ihou^li the most part oi'
good people in Scotland could not but obserTc
ind adore the holy and righteous profidence
of God, in the removal of thjs vioJcat persecutor
and spring of the most part of the former sete-
ritie^, at such a juncture, just when upon new
and violent projects, yet tbev could not appixive
of the rnaiiuer of taking Liiu off, nor would
they justify the actors: and the known Stanza
of thai excellent roan,, and. in hi^ time, good
poet, sir Darid Lindsay of the I^Iotinl, upon
c&rdinat Beaton's death, could not but come in
peoplp'^s minds, as not unappUcablc ; with it I
tud this section and chapter.
As for this Cardinal, 1 grant
He waa the man we might well want,
€k)d will forgive it soon ;
But of a truth, the &ooth to say,
Aitho' the Lown be well away,
T\^e fact was foully done*'*
f^iUtlUTtTE of the Murder of the Archbishop,
puhhshcd by authority.
«* On the third of May, a day remarkabk
in the church katendiT for the inventiun of the
lioly cross, this excellent prelate found his, and
I hope obtained his crown, ^in which month
also, Henry 4, of France, and cardinal Beaton,
ooe of his predecesisors, Ttere assassinated).
About niiie of the clock in the monuDg he took
his coach in Kemioway, a village ten miles
distant from St. Andrews, where he lay the
night before, accompanied ofily witli four of his
lerranis, and hii* eldest daug-h'ter in the coach
with him. About half an liour before he was
attacked, his great soid^ it «eems, presaging
^jffhat came to pass, he fell on a mo^t pious and
Hj^ious disC4>urse to his daughter, giving her
BM;b pious instructions and directions^ a» he
would have doue, IfufH^nhis death -bod, where-
tmto she gate such becomings and satisfactory
answeni, that he embraced, and formally
blessett her : aflcr^vard coming near to a far-
mer's house, called Magus, be says. There lives
ao ill-natured man, God preserve ns, my child.
Within a very little time after, the couchman
IMirc^iviog sume horscmeu on the spur niter
ihcm, calls to the uostiUon to drive on, lor those
men had no goou in their minds. My lord
finding the coach run so hard, looked out to
see what the matter was, and then perceiving
armed men pursuing, he turning to his daugh-
ter, said, Lord have mercy upon me, my poor
child, for I am gone : upon which, presently
three or four of the ruffians fired at the coach,
but touched neither otHliem in the coach ; the
ooachttaa put fafier on, and outrun the most part
murder, and caused delate these words ' refuBeJ
to deny.' Off the which cry me of murder
and manftlaughter yc arc actor, airi and part*
And also ye the said David Hacb^louu of
Rat hi let, are indyted and accused of ^^ouf
treasonable decliuitig the judgmetit ot the
of the rogues (my (ord^s own servants, of which
the best armed was wounded in the bead by % ,
sword, beinof mounted on weak hackney
horses, had Jallcn behind Ijefore thiss, and were
disarmed at the fust coming up) while at last,
one of the tet mounted o^erhighed the pos-
lifioo, and by wounding him on ilte face, shoot-
ing the coach- horse \niich he led in the back
aud citlting him in the hams, turned the concU
out of the way, and gave the rest the adrau-
U^ to come up. Then they fired again ; on^ |
of ihem hod his pistnl so near my lord, that the 1
burning calfing m as left on his gawn, and was |
rubbi'd off by his daughter, wtiich wounded ;
him two or tliree inches below the rigl&t
clavicle, in betwixt the secoud and tliird rib^
and then another of them on the other side of j
the coacli run him upon the region of the kidr [
nejs witli a small sword ; thereafter they i
called, Come out, cruel and bloody traitor, hut
not any offered to lay hands upon,* or dra^ hini i
out of his coath, as is falsi j reported m thmi
i-elation, tlie assassinates being all yet oa '
liOiTseback ; whereupon, most composedly he
opened the door of the coach himself, and stepi |
out, and tlicn said, Gentlemen, you will spare
my life, and whatever else you please to do^ |
you shall never he qu^tioned for it. They]
told htm, there was no mercy for a Judas, i
enemy and traitor to the cause of Christ. Weil ]
then, said he, I shall expect, none from yoii,
hut promise to me to spare my poor child, di- 1
reeling his speech to one, whom it is suspected |
by his looking him broad in the face, he Vnew, j
and reaching forth his' hand to him, the hlo<»dy j
villain starts hack from my lord, and, by Si
mighty b!ow, cuthim more than halftliough]
the wnst : then said my lord, I hope ye wifl I
gi\e me some time to pour out ray soul to Godp !
and I shall also pray for vou ; and presently j
fa!li ng on his knees, he said. Lord, forgive ihemp J
for I do; Lord receive my spirit. While thus 1
pray ing on his knees (one of the traitors standing j
some pares off, called to the rest. Spare thos^l
fjroy hairs) and his hands lifted up, they struck^
luriously at him, and wounding him therctni
in three places, which nevertheless he kept upl
bleeding to heaven, while one of them cut htm tdi
the very bone, a little above the left eye, wher©- j
upon my lord said, Now you hare done the]
turn J then falling forwai'd, he stietcht hlmse:
out, and laid hisliead on his arm, as if he 1
been to compose himself for sleep, when son
of the villains from their horses, and others I
foot (having alighted) gave him about fifteeftj
or sixteen wounds in the head, and in effecttl
the whole occipital part was hut one wound n
after which they rifled his pockets, and toofcl
some papers out of them j and so mad was their ^
spite and rage, that even atler b« Was dead.
STATE TRIALS, 32 Charles IL l6so.— Tl^rf */ Damd Jhtkiioumt
I
kin^^s m«jestie bis aires and saccessora, and of
las counciU aad judces, contrair to the 1^9 act
8 par, king James nm6, whereby it U staluf,
Wkud ordained « that his bjnes his airs and auc*
ttsoT^t he themiiclves and ther councils arc,
juid in ty me to come ^hall be judgies comp^ent
to atl {)ersons hm hynea suhjecta of iirbatsom*
aid tbe murdererB ifone iome way frOTQ the
l>ody, one of tJie runotis and bloody assaMina
Tctumetl, and thrust twice or thrice at Iiitn
^Ib u Kword. They robbed his dnugliter of
■ome coM, and othei* things ahe bad in a httle
box (they had wounded her, thmstinif at her
father, tit^tuixt whom and them ahe had in-
terposed herself, by a stab in her tlii^^'h, and
•one of her thumbs) then they took away my
lord's bible, niphi bag, gtrdte, and aome papers
of moment : tnev also rubbed his serrant^^ and
toolt their arms from them, and then went awav
ss they came, and encountered one of my lord'a
g^ntJemen he had sent off some time before to
salute the earl of Crawford in his name bavingf
Easaed near to his house : one of tbera called to
ill him, for he was one of Judas's servania;
others came and took his papers in his fore-
|KH*kets, and arms, and hid him begone, for his
master was ijone home before him. The place
Whej* this horrid murder was committed, is
<^Jlt'd .lla^'us-muir^ within two miles, and in
Si^sr^it of the town otSt. j*ndrews»
** Til us fell (hat excellent prelate (whose cha*
ipacter and \t'orthy acts desene, and, no doubt,
Will find some excellent pen) liy the hands of
nine fantitic ruffians; That they were so, is
not to be doubted, their niimes being all now
ItfiowD, and all of them dcnooncc<l or intcr-
communed, for freqiienling tield-convrnticles,
«nd the known cbumpions of that party in the
ihtre of Fife ; besides their holy santiiHt^ dis-
course at the time of their Glowly acting!!,
shews what tenaper of s|writ they were of. I
bave done with my rchnon (attested to mc be-
fore famous witnesses by my lord^s daughter^
and those of his servants "that were ao unfortu-
nate to be sjicctators of this execrable Ti!Ian>)
when [ have observed how ridiculous the au-
thor of the pretended true one is, where he en-
deavours to discover the occasion of the murder
€>f the archbishop of St. Andrews ; for what
Med iraa their of any thing more to provoke
toem, than his being an archbishop, and the
primate of Scotland, and the most active, as
\rell as the most rererend lather of this church ?
Was it not for this reason, that he was, on the
•trccts of Edinburgh, shot at by Mr. James
Mitchel, while in !iis own coach? Was not this
the reason that these fanatick books from Hol-
land, both some time ago and of late, marked
Out his tacrum caputs as they termed it, and
devoted him to a tTuel death, and gave uut
predictions that he should die so ? which they
«»sily might, being go active in stimulating and
prompting uistrumeots to fulfil their own pro-
pbecjes.
^ * 1> Lord, how unsearchable are thy judg-
t tuentSi and thy ways past fioding otitl* "
ever estate, de^^
ever they be cifi
mutters wherein tht^ fu lui) o* Ui^m %h^\
appreheudtt^ summoned, or charged, to
to sick things, as shall be inquired of
be our ^id soteraigne h»rtl luid htH
and that iion of tliem wbilk aliall liap^
Wodrow duo gives the Ibllowitig Inaini*!
meotg, relating to ttiis Murder:
Procuration, May 4, for Discoverr of At
Itlurderers of the Archbiabop idT St* ii-
drews.
♦' C'liarlesi, by the grace of God, king «f
Great Uriiain, France and Ireland, ddeoder
of the faith : To
our L) on king at arms, and bis bfedyvOi be-
raids, uuicers, or messengers at anna, oorilM*
rifift in that part conjunctly and severmMyi m*
cially coiuttUute, greeting, VVe t>eing fWljr,
and by legal proofs, assured of tlw^ \ t^ Horn4
and bloody murder committf-^ urdij
last, being the third of May in ; wftSr
eleven tanatickassassioateSfUpoo the paimaf
tiie most reverend father in God, Jamca kAe
archbishop of SL Andrews^ primate of all$M^
land, which barb«rouH ;ind inbutuaiie a«l«M^
tiou and parricide will (we doubt not) mtmi
hon^r aiul amazement in all the hearts of codt
as believe that there is a Gotl, or a rbristiAS
religion, a cruelt^r excelling the barbvitj e(
pagans and heathens, amongst wbofn tbe«£^
cej^s and mmislers of rcligiou ai** reputed It bt
jr:icrcd, and are by the respect iKtm to tb«
Dtiry which they adurc, secured agmin;^ iO
such bloody and execrithle atlefnik!*w a rrueliy
exceeding the belief of all ti ^mi,
whose churches h;iTe justly !>ii,_ i, with
the marks uf iiU|Hi ty, nil such as deiilc with
blood those hands wliicli they ought to tiolil
u|» to Heaven, and a cruelty equal to any widi
which we can reproach the eneauea of tbts tnat
and rsfom*ed church : by which also, not ooljf,
tlie principles of human societVi but our aiit*
rity and government (the said Ari^hbtshop be-
ing one of our privy council) is highly vio-
laitnl, and example and encouragement gifot
for nuirderiug ail such as scr* e us fa»thfoW|
according to the prescript of our laws aM
royal commands, daily lustances whereaf Vte
are to expect, whilst field-con veiiUdcs^
rendextouses of rebellion, and forges of lA
bloody and Jesuitical principles, are so frt-
qucnted and followed, to the scandal of ill
government, and the contempt of ourkwi
And which murder is, as far as is possible, rtn
dered yet more detectable, by the unmaal^s^
boldness of such, as durst openly with bsrft
faces, in the midst of our kinmlom, at mid^
day, osserahle themselves togerfier, to kill
our highway the Primate of our kifi
and one of our privy council, by so
strok«^s and shots, tin kh his b<»dy as it
but one wound, and muny ul which I
given after they knew he ^vas dead, were
markabic proofii they were aclt ' *
I
»
STATE TRIALS^ 32 Chaelbs 1L l6m~—/or Tnoion
be apprebendjt, called or gummooed ta ibe ^f-
foGt forcsaitli yrf'^ntn4^, gf take upoD band to
declaire the j if of lim hyoes, Im airs
and ■uccessors, i i ouocill, in the premises,
- - -
betlii^h and infatiable cruelty. Wti have-
thf^Trfore, with advice of our priry councilj
ibaugbt tilt hereby to com maud and charge alt
tBrifls, stettarts, bail lies of regalities, and
iUvries, and their deputes, magistntes of
rghs, and ot!icer>> of our s tending forces, to
search, se«;k, take, and apprehend the persons
guilty of the said horrid murdf r, or any sus-
pected by tbeiii, and to iiiiprisoD them until
ibev be brought to justice, and all our good
ami faithful fiubfectd to concur in the takiDg
■nd aecuniig, aji far as is in their power, these
aHMMoate : and in resnect there is a com-
|iaAy of vagrant and skulkinsf ruttians, who, to
tlie great contempt of all government, do ride
thrmigtt thui our Kingdom, kdliug our soldiers,
deforciug much as put our laws in execuiioo,
and comiuittiug such horrible murdersi who
tnight be easily discovered, if all such amongst
Vrbum they couverite, did, iicco riling to Uieir
duly, tiidcav our to apprehend them, or give
notice w here they haunt or resort. We have
Iherelore thought fit, contbrin to the 144 act,
l*arl. Vi K. James 6, to command and charge
all our !fubjects, that wbeuii»ever any unknawu
men or vag'abonds shall repair aiWugst tliera,
that they, w ilh all pmsible «»peed, certifie any
of our privy council, officers of our forcca, or
« having trust under iis thereof; with certi-
ou to them^ that if they omit the ^OkUie^
bhall be puaishetl with all rigour ooulorm
e laid act. Ami since aeveral of the said
aasaflainates nre known to have been tenants in
the shire of Fife, whose faces niU be known lo
such of the witnesses as were present, we here-
by require and eornmand all the heritors and
tnasteni of the said sbire of Fife and Kinross
to brutg their tenants, cottars, and t^ert ants, and
Ckthem dwelling un their lands, to the respec-
Ijva towns at the diets altermL*ntionetl, viz.
Ibaae within the presbyiery of 8i, Andrews, to
the town of Ht> Andrews, upon the thirteenth
day of Jlay instant; thost within the presby-
tery of Cowpar, to the (own of Cowpar, upon
Ibe flilleentb day of the snid month; those
withifi the presbytery of Kirkaldy, to the town
<»f Kirkaldy, n|Hin ibe twentieth day of the
aatd month ; and tliose within the presbytery
of Dunrfermbng, to the town of Dnmfermhng,
upKm thf twenty third dny of the said month,
at ten a clock m the forenoon, upon eaeh one
of the HjiUi days, there to continue and abide
bll thry lie examined by the sheriff-deputes of
ibe *.xid shiii', who are' hereby cnmmisflionate
lo that tStsctf and to be seen by the said wit-
■eMas; with certitic*atioQ to such of the said
ieoanla, cottars, servants, and othexB foresaid, as
■ball be abieotf tbey shall be reputed as acoes-
aory to the said crime; and the masters^ if
they produce them not, or if hereatler tbev
Itarbour aoy thai shall not compear, they ^hall
be reputed fai ouren of the said asaa^iioatiou.
uoder the paine of treason. And he the se.
cond act oi the second seasiou of bis imjestie^a
first parliamejH, il is statnt and ordained^
tbfti if any person or persons, shall herefler
And whereas tbere are some persons tinder
caption or intercommuningin the said shire for
several causes, and lest persous who are inno-
cent of that horrid crime, may be thereby de-
barred from appearing, and vmdicating tnein-
selves, we have thought tit, hereby to stst and
supersede all cxecuticm upon any letters of
caption or intercommuuion, or any other war-
rant for securing of any persons for any cause,
for the space of IB hours before and after the
said diets of appearance, that tbey may safcljf
come and go without any trouble or impedi-
ineut whatsoever. And to tlie end the said
cruel rniu'der may be more easily discovered.
we do hereby offer, and give full assunMoe of
our indemnity, to any one of the said aBsassi-
nates who shall discover his complices, and
such as honnded them out, and of present pay-
ment of the sum of ten thousand merks to any
who shall inform who were the said assassinates^
if upon his information thev or either of them
can be apprehended, that tbey may be brought
to condign punishment. And ordaio tbes#
uresentsto be printed, and pid>lisbed at the
Market* cross at Edinburgh , and at tlie market
crfisscs of all the royal burghs in the shires of
Fife and Kinross, and lo be read at all tlie pa-
rish Kirks of the said shires, and jurisdictions
within the same, upon Sunday next, being the
11th of this instant, immediately aiW Uie or-
dinary time of divine service in the forenoon,
that the same m»iy come to ti»e knowk dgc of
all persons concerned. Gireu under our sig-
net at Edinburgh, the 4th day of May^ 1679^
and of our reign the li 1st year,
Aj-ax. Gibson^ CK Seer. Coneilii.
God save the King,
iNsTRt'CTiONS [of the Council] to the SherifT-
Uepuies of Fife, anent the Trial of the
Murderers of the late Archbishop of ^.
Andrews,
*^ That all males, from slxteett years of afft
and upwards, in each presbytery, meet on tba
days appointed ; that sU the ministers be tbere,
and bring with Uiem the communion rolls;
That they mark all of them who cotne not to
church on the account of tanatick or popbli
principles, and that these be set aside : That all
such as are of that tribe be examined, aud
obliged to give account where they were all
the 3rd of May, and especially betwixt ten in
the morning and throe m the afternoon ; and
that they prove what they say by sufficient
witnesses, or that they give up the names of
the witnesses that they may be examined then
anent : That such as cannot prove a |md ao>
count of themselves, in manner foresaioi W
■ecured, and their goods seij^d aodseeured,
till the issue of their trial : That suob aa »ball
be absent the said day, be holdeo as proboblj
guilty of the horrid act, and tbeir g^Kida to*
8S7 J STATE TRIALS, 32 Charles H. 1 680.--rrfa/ oj Dtnid HMckstaun, [828
blood, and that je therfor falsely (fablie pre-
tending to adhere to Jesus Christ his nsht
and Idngiic office oi-er the church,) treasooablie
declined his majcstie and his commissiooeri of
justiciary to be competent judges, fidslie and
wickedhe pretending^ them to be oppin enemies
and competitors for the crown and power of
Jesus Christ, and ye obstinatlie refused to
signe this your wicked and abominable de-
chnator dictat from your own mouth, and of
the which crymes forsaid ye are actor art and
part, which being found be ane assjrse, ye ought
to be punished witli forfaiture of lyflT, land,
and ffoods, to the terror of others to commit tbc
like bcrefter.
plott, contry^e, or intend death, or destruction
to the king's majestie, or any bodlie harme,
tending to death or destruction, or any restraint
upon his royal! person, or to dcpryve, depose, or
suspend him fi*om the style, honour, and kingUe
name of the imperial crown of this realme, or
any others his majesties dominions, or to sus-
pend him fi-oiu the exercise of his royall go-
▼emmeiit, or to leTie warr ajgpunst his majestie,
or any commissionat by mm, and shall by
vreiting, printins^, preaching, or other ma-
licious and ad?ised speaking, expresse, or de-
dair, such ther treasonable intentions, every
such person or persons being upon sufficient
Jrobation, Icgallie convict thereof, shall be
eemed, declaired and adjudged traitors, and
ahall suffer forfanltnre of lyff, honour, lands
and goods, as in the cases of bye treason,
and more especial lie, when the same is done
in judgement, and in presence of his majesties
commissioners of justiciary, who are the
proper judges for punishing of such hynons,
detestable, and treasonable crymes. And yet,
the said David Hackstoun of Rathilet hes pre-
sumed to committ, and is guilty of the saids
eiymes. In suae fare as ye l>eing upon the
twenty nynth of July instant brought in pre-
•eoce of the lordj ustice clerk and commissioners
of justiciary, ye did utter the malicious and ad-
TiMd exprssions afler mentioned, viz. That ye
declined his majesties authoritie, and the au-
thoritie of the commissioners of justiciary as
his judges, and did obstinatlie refuse to signe
this your treasonable declinator, as being befor
persons whom ye treasonablie assert are not
your judj^es, and ye refused to ansnver con-
rcmin^ the nninier of the late archbishop of
St. Andrews, and } on I'alsly and treasonablie
asserted the caiistzs of 3 our declinator to be
because they usurpcil a siipiufiiacy over the
church, belonging allun to Jesus Christ, and
have established idolatry, pcrjurie, uiul other
iniquity in the land, aud that in prosecuting
their designc and corifii'nilnt^ themsi-lves in
ther usurped riifht have shed much innocent
cured in manner foresaid, and their master be
obliged to keep the said i^oods o;i the (>Tou:id,
or to deliver them presently : That (it it can
be conveniently) search be niade, in the time
of the said rcndevouz, in such places us those
in the place shall judge most co:-. vcnient : That
the najnes of the absents be publishcfl at all the
parish churches, and at the iui\i ket-cross tlie
next market-day, and a proelamution of the
council, containing all their nah^es, prohibiting
reset, shelter, or harbour to them ; and also
onlering all sheriffs, bailies, magistrates, vNcc .
to pursue, api)rchend, or kill them in case they
resist, or do not submit themselves, and a se-
vere line on any who refuse or delay to concur
in the ^aid duties throu^^h the whole kingdom :
That the Hhcritr- deputes do intimate to the
heritors of the said shire, that it is the councils
express pleasurt*, that they give all possible
concurrence to them in this examination and
trial, under all highest pains."
Pertewer. — Su: George M'Kenzie of Roie-
haugh, our Sovereign Lord's Advocate.
The said David Hackston being entered 00
pannall, did, in presence of the justice genera],
justice clerk and commissioners of justiciaiy,
and assysers, all in judgment, decline his di-
jesties authoritie, and renewe his former de-
clinator (mentioned in the dittay) in the baill
words tlierof, and chairges the lords and u-
sysers who shall judge Jiim by the lawes Ij-
wlled to be guiltv of his bloocf, and refosn to
answer or deny the archbishop's murder, and
being questioned whether he made hisesape
out of the house of Mortoun, when he wu
persewed by the archbishop's servants »
guilty of the murder, refused to answer ; but
eclaired he made as many remarkable escapes
within this two years as tnat was. The kirai
finds the dittay relevant, and remitts the saot
to the knowledge of the assyse.
Assis K,
sir John Whytfurd of i^lilntoun.
Mr. William Nimmo Gihnour, of Craij^-
millai*.
Robertson, of Strowan.
Sir Patrick Thi epland, of Fenzies.
Alexander Brand, late Ba^ lie.
Uatray of Craighall.
IMilueof Muirtoim.
Blair of Wester Yormock.
Colquhoun of Ralvie.
Air. William Gordon, brother to Lesc!aoir
Blair, of Ardbl^ir.
Wni. Leivingstoun, master of Kilsyth, sti-v-
art of Balid.
Da>id Swiutoun, late baylic of Ediiibuigb.
Prcbation.
The assyse lawfullic swornc ; no objection is
the contrair. His Majesties Advocat for IVo-
bation adduced the treas^yuable DecUnator emit-
ted by the said David Hackstoun, tbenil-
ncsscs ciler deponing, and the other evidencfi
eilcr specified.
Follows the tenor of the treasonable Decli-
nator,
Edinburgh 28 Ju/y, 1680. In presence tf
the lords justice c!cik and commissioners rf
jusiiciary, compeired David Hackston rf
STATE TRIALS 32 Charles U. l6m^or TrtMpm
4ecl«fr4«« iltAt ha decline
[830
the
r
. ,M.^. ,;^ ..... -.■... dtr
I of St. Anclrtrws, and
i! t't rum tor ure because
T the church
a, antl have
^ ntjijarvt perjuiie and other iniqui-
laiiil, am!' in proifoutioi^ Uieir tlesigoe
I V I 11 1 <. II »t
^ 111 this usurped
ent blood, Tber*
ullierini^tn Christ his
i>ver tli€ church, declins
. enemies aodcom-
tvver afl competent
itii»*i to sigTie this bis
r 4^k^t Irom his own mouth, wh«T-
fii^fsties advocat iak*^ iiistrutDent£,
fyri the oommisaioneni of justiciary
ir same ia his presence, and for hLcn.
I ^ lilvocat takes iostrwuients,
L avid has caused delate the
to deny" the murder of tiie
I r St* Andrews, aiiil requyrs
I i imics Balfour, and t he m acers
^es to the forsaid declinator
Sk SubicrihKer. Maitlaud,
Darid Balfour, Da. Falcouar,
'I of Earleshall, being solemlie
of partiall council!, and exa-
That he sawe the pannall, Da-
wn of Ratbilee, in his wounds eikr
id at Ayresmossc upon the place
I " v ■ • ::3t the dead, and in
I say who made him
'- '-"-Ml diddc.
t in ma-
.;.. „.,, ,..„, -.:es forces,
I tie two and twf?ntic day
iaur o*clock in the ettcr-
\ificrtbttur^ AB* of Carlshall
ry, gentleman in Clavrrhousa'
to Uhijor John Ramsay, beiiiif so-
snorne, purged of purtUll cuujicdl,
d^rpons, he sawe the pan bail,
tic*LHioun i)f fiathilet, in armes with
iesmoise, on the twcnlie-se-
\ instant, and depous that he
Hjoent personallie, atitl he
uiod and sawe himdrawe
It* ieii wing of the rebel Is.
I the pannall uneut his
* h s murder, and the
Eincnt that, tbouj^h
uUirr yuesttons^ and would
ly It. Df poriH) that the
If mW^Wttftf*'^' I'f ! Mff^k the pnmmJl
\ whI laok 01' ]ri him, whit^h
iU»«- T>v ,ti ili»* pannull
miunt l)rt', and
i' ■ I ' ; '. i ,ik, by re-
IIm ajiis #tt hia own baud, «Aer he
hade taken his sword, and ttiis is the truth m
he shall answer to God.
Sic Subicrititur, D. Rausav.
His Majesties Advctnt produced the Pro-,
elamation mentioned in the dittay, ai^poyntio^
the haili inhabitants of the shy res of Fife aui
KinroKB, to appear before th** s^hentl" depute* «»f
the said shy res, the dajs and placeii theria
mentioned to be examined, in prei^uce of t\\%
witnesses present, when the archbishop of St»
Andrews was murdered, which is dated th«,.
fourih of May 1078^ with ane Proclamation dis*',
charging the rcrepting- and commanding th«
delyverinief np of the said David Hackston,
and the other murderers of the said archbishop, .
and the other rehclls therio mentioned to jm.
tic«, which is dated thetweutiesixtday of Juuc^il
the said year. As also produced the Procla* I
mation containing his majesties gracious par-«|
don and indemnitie, to the persons engadgetl-
ia the rebelhon 1679, wherin the said mur«fj
derera and others are expresslie exceptedgU
which is dated the 27th of July the said year.^
Iteui produced ane Pi-oclamationf inJii
Circuit Courts to he hold en, and appoynting
the said murderers to be proceedit
therein and hanged in effi^ie^ and promismg
atid assuring ane reward ot ten Uiousand merk
to any person or persons who should appre-<
bend the said murderers, particularlre the mudlj
David riackstoun, and John Balfour of Rin-
loch, either dead or ali^e, which procbmatioai
is dated the fourteent of August the said year^J
Item ane Proclamation § appoynting and com -J
maading sheriffs and other magistrates to ap->
pre betid and secure the pensoua of the sail'
Da? id Hackstoun, John Balfour, and the otfae
raurdorers. Dated the 20th Sept ld79-
Mr. Alex* Malcolmt, Advocat, 8herifl'Depu&
of Fife, being soleranlle swonie, punretl,
examined, depones, that tJie puimaH upf»en'ed
uot before him at any of the tour places con-
tained in the proclamation, at the tymes ap-
poynt^ for examjoation of the hefiiurs, and
others id the sbyre of Fite aiient the Arcbbi*
shop's murder.
Sic Subicribitur^ Alex, Malcoime,
William Wnllace^ serritor to the late arch
bishop of St. Aqdrews, being so Jcmnlie sworne.!
and purged, defKmSi ht: was at the house
Mortoun, searching for the pannall, and th«
other murderers of the late archbishop of St.
Andrews, and that the persons who w er in bed
in that house having got from their bed and
made tber escape, the dejKjncnt did fvre at une
oi' theju, and that thty left two of tLe horses
upon which the murderers of the late arch -
bishop of St. Andre\i s ^lid ryd, when they mur*
dered bis gmte. Dej»ons, that the pistoll which
was taken out of the deponent's pocket by th«
* Poblinhed Auifust 14lh, 1679. See it in t
Wodrow, Appendix, No. 32,
t PubUslK'd \\\^^x%i I4th» 1679. See it in f
Wodrow, Appendix, No. 34.
i S«e it in ^ Wodraw, Appendix, Nq. 4€<
»n»l'
I
thit wgfat, liwt ttedaiBMit md «&«■ iw •>
ll»lMW«rilbrlomrieiiKUBrftrtkeiMir.
dhrani, aiii llMit AkaiMM Snift tke
MiUm Iw had iMo UnaMof
liafa bolb of tiNMi iMn thir. Md H
void tUtfk tiMtalliM UiImU
toOod; fiudv d«pOM» lluit Im tha
bruknidnpaitor the eMnmy^dM
BadiililliM ahrayef bib npok OM of
^_.« ^ wiyMddMOimwy wet
booeefor biiiiyeeoMe ef
Sic aOtaikiitirf W. Waiami.
to tiw fadie stdt-
Bd| TnsfooBf Hiet he wee
whmthe arah^dlhoperflt JMnmv
rjdniff OD ue fiy
AtMB 3i0 eoecfa, aod
Ml ftv the evcliDiflMp^e
wrafodwidithepea-
Byttid wedt twiee
he Bide Us cieipe'
B» ceBODeQ OH pftmet
\ pMrick !■ beM ptedttced s
the self iMDe hone OB whieh
hade tbe B^ht coBwned
I it the hooae erf* IfbrtoQD fton
uandthat Ae Drill oblloiinddodk
ilBthe hoow; eiM depone, diat the
MOfpieef theh«N«enidthtlthe do^ wM lU-
thiittfeokNiky and depoM that Ratfaikt'e inter
OMifeft aDd said, thai the pannallher brother
sras in ther house that niffht they searched
ftr the BMirderers, and thatUie selfsame pistoll
whiefa was taken from the archbishop's man
l^Hiam Wallace, was found in a bed in the
hense of Mortoim under the strae, with a litle
Khcra produced, said to be Rathilet's byble.
fait is the tnith as he shall ahswer to
God, aad depons he cannot wreitt. Depons its
theoooimonhmit andoppin fame of the haill
ooontrey, that Rathilet is one of .the murderers
of the arohbishop, and the deponent went to
the house of Mortoun to search for bim as soch.
Sic SuUcribitur, CluBiMSBBBar*
Jame$y Marquis of Ifcrnf race, beio^ solemnlle'
aweme, depons the pannall refused to answer
whither the archbishop's murder was a murder,
but said to the Counoli that he wished that
Ood by a streak of his iustioe might desyd
belwiift the councill and him which of them
war the greatest murderers ;* and depons that
* Thi TusiiMawf OP THAT wovmr Gentleman,
Datio Hackstoon op Rathillet, who
» AT BoiMBimoB, July SO, 1680.
Hit Intrnn^atunu and Antwen b^crt ike
1. *«WbetlferoriMftbadyoaai7baadiiitiie
imudcriwofthekie biafao^erm Aadiewaf
AntwiNdLiMWi
sabiafaoper
^^^ «_-•- ^il,- -^mS,
loa MnMi e« nie pnvie
wHhUMi
J wDum
OD, nor b*i hh own accuser* 2, Whit Uc
declare a» Iq the kini^'a stitbority ^ Ani''
l^thutaulhoi'iljfb&t disowns the IntifKii^
ef G^f and states iBeif ui oppositiOQ to Jmsi]
Obritt, h no mote tr» be ovrn^ i boi so it M[ 1
the king's authority is uow swcb^ th«TFfore %
ougbl not to be owneJ^ 3. Whether thv kill*
ha^ ei the {irclibtslifi{> of Ht. 4t)drctn wst mnt- 1
diff yea, or not f Answcreii, that be tiio«j{J»f
it no sin to dispateU a blood j monster. 4. If
ho OtvBi'd the new cot en am taken it tNf
QieeDd'erry, from ^U. Cargil, one of tbr#
pNBJShers ? Ansvi'eredf that ne did own it ia
ewetj particniyx thereof^ and would fkin inf
the mat I that ill consde&ee nnd reiLsi^ti wmU
debate the amttary. 5< If he were at li
■ai had the power to kill sny of the
oomicili and murder them as be did the M0f
efSIt Andrews, whether be would do It^ jtM, at
bot f answered^ that he ha^i no npnae tunc t9
ewer tjucih frivolf^us and child Lsli nue^lioof.
•* The chaiiceHorfold him, that if hewat wot
iu^uttoni in his aDswer», be itoidil |iie«
aaatly be tortured. He anewercd, Tbatkbott
little addition to Jtnir former eroeltie^^ ui^ t
luat that comfoit^ that thcnigli ytm toriurtmf
WOUbded body, yt^t ye cannot reaeh mv ^u1-
The chancellor iirgfed him with seieiJ odjer
qaaalionsi whidi he refits fd to answar. Bulf
aaid W^ t vrould gbdly s^i^^k a 1 title if I m^
have liberiv, which %vm alhfwed bioa. Ita
he aatd^ Ve know that youtli is a ftiUVf awl I
admowledge, that in my j^r^nun^ei- yiara I vi|
too much carried down with the upak ^ it!
but that inexhaustible tbuntaiu of ihe i^oodbm
aod grace of God, whielt is fri^c and ^Si'^at, kolk
redatmiKJ me, and as a flix^rand h^m p|gckt4
me out of the daws ofSmnu ; andnowi^nl
here l»pfore you %a a prLsonei- of Je&Ui CiMi
for adhering to hi* cause and interest^ wbict
hath been sealed with the blood of niiti*y w^
tbiea, who bav*? sntfered in these Iai4<6| w^'
bate witnessied to lbs trull** of Christ, tlM
few years byiront% and I do own all the terf^
mome« ^iftftibjr them^ and dejiireto put infljf
mite among their*, and am not only wilikBf ••
aeel it with my bloo^l^ but aUowith thethirp**
toKarei that you can ima^oe. lliea b«|
ilrterro^iite by the bishop of Edinburgh, *bK
he wuuJd answer to thul article of tite C*^
fesaion of Faith, that difference of rdigkwiW
not make vottl the magi&tratb's ri^ht And il^
thority? Heaniwered^ be woold not ta»»^
any perjured prelate : the biwbi-p n-phcd^ be
waa in ibe wrong' to hirof be<^use he
took the covenant, therefm^e lie waa n*i *
juredy and so deinrtd ntit that n^me.
of Ibem afiked bim, liow ht^^ wonld*^
luestion ? He aiiswered, ihstmiestii*
long' agf» by the Bolentn LeagI
CrOVenant, which binds us «n!y to tnatntii
drfWithehlDf in the detenceofdietrfc
5J
STATE TRIALS, 32Chaelbs11. iGSO.-^/arTreatan.
[854
frewi;, that d»y af ihe murder, but did DOt
H ill tbe act, Anil that lUtliiit^t tolil l\m the
urstia^' lie wum iaken.
Sic itiburibitur^ MofiJViost,
; but now the king having slaleil blcasf If
[i^riciuy to rc'lig-iou, Uknd all uiat will live re-
imKly, ilierdbre it U high time lo shake off
I f>t»hgalioo of alle^aoce to his autlmrity.
It ita^ thry asketl if lie bad any more Ui
\ T He an^viered, that which be had to iiay
I Miid already id every particular tbefeol';
3, said be, t will uot only seat it with my
UckhI^ but with all the tortures ye can iinagrne.
!»* (Ac £s tract qf the Procttding* of ihe
'r4vy C^uncilj Edinburgh^ Juf^ 99> 1680.
In pfe«eni^ of the lords justiciary, clerk
i" T litiary, romiieared
I Met, and deeltnes
s ai!iiijr>nty, the authority of
of justiciary, as his judges,
H .ciuses to als^ thii; declaration,
re persona who arr not his judges.
„ to anawer concerning the murder
bishop of 8t. Andrews, and says,
5 of fits declinetnent are, hfrause
t»ve ti^urped the supremacy over the
}}y bclonginjj alone lo Jeaus Christ, and
SaT€ established idolatry, perjttry, and other
'toitiea ; and in proaecutin»^il»cir design, in
[ig tbeTiiselves in thi^s usurped rights
d much innocent blood. Therefore
I Darid, adhering to Christ, his rights,
and kingly office o?er the church, declines
tVem that are his oppn enemies and competi^
tors for his rrowu and power, as eatnpctent
judges ; refuses, as f*jrmerly» to aiga this bis
dedaratioD, dated from his own mouth ; where*
fipoa his majesty ^s adv(K!ate takes instni-
loetitt^ and requires ihf rommissioners of jus-
' tu ti|?n the same in hit presence, as for
'and his mnjestv*s advocate takes instru-
pts, that the saiif David has declined his
fty's authority, find the authority of bis
bfoissi oners, and rei^useil to deny the murder
^Ixe late bishop of Ht. Andrew^, and requires
sri. John \as, James Balfour, and the
I of the court, witnesses lo the forrstaid dc-
on, Sic svbicribitur — Sir Robert Matt-
land, James Foul is, David Balfoufp
David Falconer, Rodger Hodge."
^ Upon Friday, July SOth,* being again
Ughl befort:! the council, it was asked of
k if be had any other t}iing to fsay ? Ue an-
fwcred, That ^vhich i huve said 1 will seal it.
Then tb«y told him, they hiui som^fihin^]^ to '
W^f lo him ; and commanded him to sit down
UmI reoc^tre hb sentence ; which willingly he
lUd, but told them they were all blo<tdy mur-
demr%^ for all the power they had wna dt;i ivr<l
Umb tgrfiTYiiy ; ami that these years bygone
ihnr bsveoot only tyrannized ovvr the Cliurch
flfOod« but have'aUo giind«*d tiie faces of the
pooVi to that oppressions, bluodsbiMl, pt*ijtiry,
mA maitjf omrdcra were to be louiid m ibeir
CknrUt MaUlandof Hattoo, LordTbeosoror i
peput, being aoleiimlie s r- ' -^ ' -i
ilack*itoun of Rnthilet In ^
the lords of his ai^esli^ ^*.u.^ ^.-,.i.v.,, ....vi'
fikirt!>. Upon which he was incontineat car-
ried awa^' to the si-aflbld^ at tbe market-crosa
of Edinburgh, where be died with great tor»*
tun^ iutlicted upon bis body.'^ A Cloud of Wit*
ue»s(s tor tbe royal prerogativen of Jestia
Chriiit ; or the Last Speeches and Testimonies
of those wbo have suffered for the truth itk
8<.-otlaud, since tbe year l^BO. Edinbui^la
laio.
In the same work, are inserted four Lefteri
written by Hackstoun, shortly before his desitli,
from llie first of which, date*! from the Tol-
booth of Edinburgh, July 26lh 1680, is ex-
tracted tbe following passage, giving an ac-
count ot the rencounter at Airs* Moss, (July
30th 1680) and what befel him afterwards.
** And now, knowing ye will be ansttous tn
know bow it vras then, and liow it hath been
since with me t Fii'st, we getting notice of a
party out seeking us, sent tv» o an Wednesday
nighl lute, to know their motion, and lay on a
inuir^iile all night ; and Thursday / t
hours ufc went to take some meat,
out othri' two, and desired ^h^'-^ *- -^ i
the first two, who bad ^ >
were lying down to sh* -i [
and told us, it was uo:
inteMigence, they h:i\
upon, after we had g. , we camm i
to apiece of grass, a II V i preseotljlt '
wt; were aJI alarmed liiat t^ik^y were upon us|
and so making ready, we saw them coming
fa£it on ; and that alK)ut three or four hours lit <
the afternoon ; and each one resolving to fight, ,
I rodr off aud found a strength ibr our advagl^
age, and drew up quickly eight horse on th^
rtglit haod with R. D. and fifteen en the left
With roe, being no more ; the foot not beio j
forty, and many of them ill armed in the mt«ki.
The eucmy advanced fa8t, about one huudrcd
and twelve, well armed and horaed ; who send*
ing about twenty dragooos oo foot to take tho
wind of us, we sent a party on frH>t to meel
them, and the rest of us advanced immediately
af^er, when our horse 6red, and wounded and
killed $ome both hor«e and foot ; our hora9
advanced to their faces, and we fired on each ,
other ; I being foremost, and finding tha
horse behind me broken, i then rmte Iti amongst
tbem^ and w^nt out at a side, without beintf
woundeil ; ] was pursued by sevcrals, with
u horn I fought a good jspiice ; but iit len^b I
wassirtken down with three on horaelwu-t be*
bind me ; and receiving three wounds on th«
head, and falling, submitted to them, Thejp
gtive us all testimony of brave resolute men*
What more of our men were killed, I did not
see nor know ; I was brought toward Dounflasi*
They used me civilly, and brought me iFriuli
out of A house by the way. At Douglas, Janet
Cleland w as kind to me, aud brought a furgeo*
S U
8S3j STATE TRIALS, 3^ Charles II. l680.— 7r/ii/ of HavH Bachtatm, [890
whither the archbishop of St. Andrews mnrder
was a rounler, he answered pontire that h«
God ; anil that I knew of no authority nor
judicatory tliin day in these nations, bat what
were in 'a direct op|Hisitk>n to God, and so
coutd neither be of God, nor lawful, and that
ther fruits were kythin|r it, hi that they were
setting bnggerers, murderer*, sorcerers, and
such others at liberty from justice, and cm-
plnying them in their senric^, and nnadeit ibeir
whole work to oppress, kill, and destroy tht
Lord^s people. The chanceHor and all raged,
and desired me to instance one of snch, so kI
at liberty and employed. 1 answered to tlitti
though *it were enon^ to instance any sorb
when I saw a judicatory to execute justice, jet
I would instance one ; and 1 instanced a b<^-
gerer, liberated at die sheriff court of Fife, asd
aAa-wards employed in their service. At which
the chancellor raged and said I behoved toht
a liar ; but I offered to prove it. Bishop Fi-
terson asked ; if ever PiCite and that jndicAtoiy^
who were diruct enemies to Christ, wcredisowo-
cd by him as judges ? I answered that I woaU
answer no perjured prelate in the nation. Ht
answered, that he could not be called perjoralk'
because he ne\'er took that sacrilegious core-
nent. I answered, that God wouM own ibtt
covenant when none of them were to oppos*
it. Thev cried all, 1 was prophesying : I in-
swered, I was not propliesyiii;^, hut tliat Iilmt
not doubt, but God who bad such singuter lort
to these lands, as to bring them into covcMift
in so peculiar a tnanner with him, would lit it
beseen that his faithfulness was enga^tocuiy
it through in opposition to his enemies. Somt
asked, what I answered to that article of tht
coufessiun of faith concerning the king ? } in-
s\rcre<l, it was cleared in these two covenanti.
The advocate asked, what I said of tbst a^
tide of the covenant, wherein we are bousd
to maintain and defend tlie king ? 1 deflicd
him to tell out the rest of it, which was, is
defence of religion, but not in tho destnidin
of religion, llie chancellor thrcatenfd m
with boots, and other terrible things ; and aid,
I shoiilil not have tlie benefit of a sudden ikaik
To which I answered, it would be but an addi-
tion to tlieir cruelties used ag^nst God*s people
before, ami that I was there a prisoner of
Christ, owning his truths against bis openeB^
lilies, and referred it to their own acts of |Mr«
liamentand council, to let tl»eir croelly aodo^
position to Citid and his people beseen.
'* After this, they called for a surgeon, MJ
removed me to another room ; where no drMrf
my wounds. In which time, the diaMtlkf
came, and kindly asked, if ever I said is •
siurpherd on the tlounthill, that if I tbooghl
iliey would not put me to a& ignominious dsitti
I would refer myself to tlie chancellor f 1 wdi.
No. lie said, a shepherd came to bia ■■'
said so. I said, that ne, or any other who Mi
so to him, were liars. I was asked by iflM
concerning our strength. To wbieh 1 taUL
how few WQ were, and how siirpriRed bj mA
be hade declined the king's authoritie in coon-
dll. The chancellor having asked the pannall
to me, who did but little to my wounds, only
staunched the blood.
** Next morning I was brought to Lanark,
and brought before Dalziel, and lord Itos^,
but I not satisfying them with answers, Dal-
ziel did* threaten to roast me ; and carrying
me to the Mbooth, caused me to be Iwund most
barbarously, and cast mc down, where I lay
till Saturday morning, without any being ad-
mitted to look my wounds, or give me any
ease whatsoever. And next morning they
brought mc and John Polk)ck, and other two
6f us, near two miles on foot, I being without
shoes, where that party which had broken us
at first, received us. They were commanded
SEarlshall. We were horsed, civiUy used by
sm on the way, and brought to £dinburgn
about four in tlie aflemoon, and carried about
the north side of the town to the foot of tlie
Canongatc, where the town magistrates were,
who received us ; and setting ine on a horse
with jmy face backward, and the otiier three
bound on a goad of iron, and Mr. Cameron's
head carried on a halbert before me, and another
head in a sack, which I knew not, on a lad's
back ; and so we were carried up the street to
the parliament close, where I was taken down,
and thereat loosed ; all was done by the hang-
man. 1 was carried up to the council, and
first put up into a room alone, where the chan-
cellor came, and asked if I knew him ? 1 an-
swered yes. I was brought in before the
council, where the chancellor read a ditto
against me. First, anent the bishop's murder,
to which I answered, I was obliged by no law,
cither of God or man, to answer to it ; and
neither to accuse myself, nor reveal others hy
indicating myself, or any other way. The
Advocate asketl, where I was the thinl day of
May last year ? To whom I answt*retl I am
not bound to keep a memorial where I am, or
what 1 dn every day. The chancellor asked,
if I thousfht it munler? To which I answeivd,
though I was not bound to answer snch c]i:e5-
fions, yet I would not call it so, hut rutlifr say,
it was'no murder. The advocate said, .Srr, you
must he a crreat liar, to say you renicniberiiot
where voii was that day, it being so remark-
able a iky. I replied, Sir, you mujat bn a far
l^reater liar, to say I answered such a thing.
Whereupon the chancellor rcplicil, My lord
Advocate, he said only, he was not bound to
keep in memory every day's work.
*^ The chancellor asked, if I adhered to Mr.
Cargill's papers, which they called the new
covenant taken at the ferry ? I answered, I
would know what any would say against
tbeni. He asked, if I owned the king's uiitiio-
rity ? 1 told, though I was not l)ound to an-
swer such questions, yet being permitted to
enieak, I would say somewhat to that. And
first that there could he no lawful authority but
what was of God ; and that no authority, stat-
ed in a diract opposition to God, ooald be of
837]
STATE TRIALS, 33 Chaelcs II. l680.-/<w- Treasm. [I
it WM iicil, I>ep<»ii5 tb«t l>eiiig icite-
rogAt, if lie wmi, t»reient kI the muidert he ao-
»w«red lliat kc was not Dbletdi't'il lo aimwer
•oy suck <|4ie!itioD, nor to accuse himsalf. De>
^qhb that Wm^ mtcrogat, ubrr lie it-as ih*^-
tllif4 <i«y ol' May ]<}79, be aiisH ciet] thai h«
^•Jt ii«t c»b)«<|ftHl lo kf#j> recl'oiiinn M dtyes.
I^pfms uba that Joho Pollock piLsoiier*d*d
QOiifviase before the lards of (tririe couucill in ihe
liitti>r, Uial he hrard Hack«touu of lEatbiitif
9^y that tie was with the uiunlerei's uf the arcb-
Jiop that day of the murder, but that be re-
ird tojo\ ne ui ttte actiou^ and ibis is ibe truth,
llie t^ball ans\iertu God*
ir,J>ihn rtfni^» keeper o r the Tolbttith^being^
'MemnUc suanic, j>uri^ of pariiall couucill,
iJgH»ait upon the truth and rehtte t>f Davtd
^hikatoun ol* Hathilet, bu Uccbuaturf 9i|^ned
^H the justice {i ufion the 38tb of July iusiaiit.
VljKtn^ tbbt the pail nail cotifcst, be was in hb
aisler'K liuuse )n 3kutouu, whtn he wasaearcb*
l/r by Uje ajibbMbo[**s serraDti» and escaiied.
Sic tuitC/iUtur, JoUN Va^SE.
ft M*Kenzu: umt-er of court, pureed and
r., depo!]s upon the truth aoQ v en lie of
^d 1>ecLinator in all po>ut!t.
l-Bic tubscnbttur^ J, 5rKEH2lE, Macer*
M^. J&hn rnn$€ imng farder examfned, de-
m itn>og pnrty, and tliat knotnng with what
* .^dera they cauie agaiu&t ua, we werc
iigbt« Atler drfc%!»iiij^ of uiy Houudj^
*ugbt back to them, and tbeae thtngw
written, weic read over to inc; to which
h£red ; and Wnff askeit, if 1 would aigu
I said not. The chancellor said, he
lid do it for me. Sonic one of tbeui a&ked,
the fir^t tiraa, concerning my being at bome
other btisiiiesa: to %vhom I suiMwcrod, that
tliotig'h I was n<>t obliged to ansirer such ques-
tions, yet 1 adliered to all that had been done
in bebalf of that c^use aguiust its eDcmiea.
Aflet which, 1 wan sent to the Tolbootli, and
faM« met since wiifa ail manner of kimlnes^, and
^Bpt for nothing-. My wounds are duly dressed,
^Beh, I fear, may prove deadly, they being
iM m the hcitd, the rest of my tni^y is safe.
w-** la all these trials (I bless the Lord) J was
^BMdp ttiilfM>vctl, no alieratioci <»f countenance
^Hiskist, DOr impatienoemppeared. Some
BBwil iKive eome to me, and regretted tliat
#ad] a man as I ibould have been led away
with Cameron. 1 ans\i«red, he was u faithful
Htjciister ol Jews Christ, and as for me, I de-
mtmi li> be one of those desjiicable ones whom
CknsKhaoHil, They said, it was a Uuaker-
lilee aiMwer. 1 told it was the words of Christ
aQ«l liiH apacUes, Bishou Paterson^s brother,
nnklfbwn to me, bad a k>ng^ rcajioning with
um^ but 1 Ihiuk not to truth^s diaaiUantag^
Be luld mc, that the whole council observed,
lllttt 1 gave theui not their due titles ; at which
1 ■Diltd^ and made ou reply. He sai|lf 1 wus
fllla tbe bishop* I tokl, tkot I veerted the
non« that the litiSe byble produced waa ae-
knowled^ed by the pannall to be bis Ujioa ihm
tirst %veive of it.
6Vc sukcribitur^ Joay Vanse,
Hi* Migett^^i Adtocat, for farder iirobatioa
producrd the DejKisitions of James Andei-son,
m 'IVtvcbets^ and olhtn-s taken belbr bis ma-
j^*sti<'s pi M ie cuuocill, and befor the sheriff
drmit of Fy If, theranent; whereof the tenorc
Ibllowe :
*' Edinbtir^b itie U^ of May 1679, in pre-
sencc of the conmuUec, for publict af!airs«
James Aodeiiion in Tewcheti in Lar^o aged
50 years, or thereby, beincr sworne and inie-
rogat tibat he kuowes of the murdei o( the
late archbishop of St, Andrews, depones, that
j upon tlie third of Mixy instant, the day nf the
t n*urd«^r, The deponeot being that day' at Bal-
coturmiln, and having returned botne betwiiit
two and tl»ree in the eikrnoon, Thomas Cowe,
the deponent's sarvant told ibe depooent, that
nyn armed men hade possest his barne, aud
sett out centries, and would not suQer any of
the people to gv>e from ib^ toun, untill I hey re-
moves I, which was about seren o'clock at night,
and at parting each of them shook handii witU
the depouf'nt, whom he knowes to U; these fol-
lowtinif, \ iz. David Harksloun of Katbilel, w bo
is a tall slender man, black haired and black
risaged^ who hade ana brownish gray lu^rse
truth. He said, that he ne^ar took the core*
nantf and so could not be perjured. 1 answer-
ed, Prelacy itself was abjured bv the whole
nation. El^e told me, that Ihe wtole council
Ibuud, I was a man of great parts, and also, of
good hirth. I replied, tor ray birth, 1 uas r«k^
lated to the best in the kingdom, i»fhich I
thought little of; and for my parts, they were
small ; yet I trusted so much to tlie goodness
of that cau»e for which I was a prtsoiier, that
if they would give God that justice as to Ivt
his cause be dii^puted, I doubtt- d not to plead it
against all that could speak againiit it. It was
cast 11 p to me both at ihe council and bere^
that there t^ere not two hundred in the nation
to own our cause. I answered at both times,
that the cause of Christ had been often owneit
by fewer. I was pressed to take advice; I
aniiwereil, I would advise with God and my
owj] conscience, and would not de^teud on men,
and r el used lo debate any more, since it was lo
no purpose, being tiuuhksome to me, and
not advantageous to the cau&e. At the cotm-
cd, some said, I was [ioasc«sed with a devil ;
sutne one things some another. The chancellor
iuud, 1 was a %iciotis man; I answered, whila
I was so, 1 had bceu accep1al»leXo him; hut
uow^ when other^vise, it vias not so. He asked
ine, if 1 would yet own that cause with my
blottd, if at hberty P I answered, both our fa-
thers liad owned it with ihe hazard of their
blood bdbre me. Then I was called by all, a
murderer, 1 aosii end, God should dedde it
betwixt us;, to whom 1 rt^erit, who were uxQflL
murderers in bis tight, they or L^
I
TrM a/ Dmid SMblon,
gt> fftiiii ii«
rwmam^mmaa my in tb« forctiotiirt BAd tint
1^ Sai^ «i tliKn Attswrr tci God. D»»
OstmttOMO.
itf'llke pprsmi* «nf1rr iNTitS«,
__ WUln- - ■ -^'-T.-
Jbmm ^r -»
« lieutenants And Joha
of tbeiudooQi*
nerr&fft to IMmki
Tnaryed tn&D of ^
Tug ■wfyme tsl
;> rMfWftp to Odd,
iras at the Wohst^r • ^
FHiLa^ Um, the Aeciidt) r
vbrr the Wobftter 15,
• i he went sm^aj wiiii
iiM4 l'*uiky* iii<»bt. Ueftaaftlio caftftoi
.*$«. ibMMBTiAi/MF, Wm. CAftMICtlAttA*
0(n// 4^il«l4» aemtrir to Jolm nulfrinf. ^f
^aiieiu >f the ag^ .
V, tma^ swm-oe ano . •
■-••, , r ►n Clod, ihii sliC tr. ; : •
< > ^he beard tbtii hvi m. i :;
atU flAtltilct «ras at R;ii
rotng, botalieilid ivnt 9*fe ti
: RaiibilK oti Sattpvil
'it w.'A5 tbtT ihctj, a I
bclong:si«'
U M. Cjuttfiauiu^
< u, )»uvtinx to tlM iiid iAt}4
•t^' lit 23 vHirsufii|pB arlfccic^y.
{Mill oatk, us ' Kjiiairer lalf •<
Fridfi% taat »i -
__ of iCw«iwii '.VI (SI It lib bstn, irri
aiMf m the rftri i^ioi), atid iftws^ •• n
lirr oamiBUii perv'riM wilb ibam. 1>«t
M rjfd Away oa a«M my bmt, tQ«i
j^te BalfiMif bad ULiip t>Bv UQraa« bii4 su^-
«Ih^ MS* b«i ^^Qr cbmlc Ijifld
«alisv4 cioalh ur't ttiji *n
w«a %ii
STATE TRIALS. 32 Chasles tl. l6iO.—for Tretittm.
CMi
fillt, pifitols and iwoKlf, tnd did ryd awny od
Fiydtftycs Dight together, Ratliilei hadf? anc^
vwvet cftpe on his head, and ane clock Untfd
red, and John Balfour hade ane cape, and the
Either young- man arte bonuet^ and the ccmt pro-
^Wd be the »oj<»r» ia KuUiUets coal, ilepons
^■caonoc wreitti
^K^ Su^nbilur, Wli. Casmicuabll.
Jomef KiH9tcir^ servitor to Rathilet, S4 years
^f a^ or tberby, depoua^ his master was at
Jiome Oil Friday last, and did ryd av^ay at
night on a gray hurt. , and John Balfuur hi!>
l>rother in lawe, aad Ge^iigc Balfour in Gils-
tow ti, and aiKilher periun who was liaid to he
And re IT Guilan, Wobsii^r in Baliuirinoch, bis
master had ariues and pistuilM^ t<ir the rest he
koi^wes not if ihey hade armes, U^m^ at a di$»-
teoc^ they did ryd east w«u-d, toward KiJmany.
OlB^aa he did tiot Kee his master since, nor
laK»w«snot wher he is. {>epous, be ennnot
wit.it ^ de[K)i]sJohti Baltbur was ryding on uiie
hay horse, and the VVubster on aoe whitt horse,
whicii they said belon^^ed to Georgt: Balfour,
And that John BaUoui- hade ane cape on hisf
bead, all which htr dcpons to be of verltie as he
shall answer to God.
PStc SitbtcnifUurt Wm. CaRMICHAelL.
ViHuim Botvmthit servitor to John Ijourie,
mi in Huthilil, of tbr avfe of 'iO years or
peby, Depone upon oath as he shall answer
God, ihat be did see Hatbilet on Fry-
days ni«^'lu last ryd away oi» ane gray horsse
John Balfour of Kinloch, aud other two
with tht'in i'3'diijg;^ un horses, the one ot
1 w»8 called ane \Votii9Ter, a litle roan with
kbounet, and Jolui B^Hour bade ane ca^e on
Read, they hade s\Tnrda^ ut least some of
, be tjemg at une di-itance, and their backs
Eluu, bcfor he did see them ryding away
ards the smiddie, about two pair of batts from
him. Depons h** cannot wreitt, and that John
Bilibor ^vas on ane bay horse.
SU Sub$crit}unry Wm. Carmichaell.
i Tif/^'i»» servitor to Raibilet, about
^B veafs or thereby, depous u[)on oath
! shall answer to GtMJ, that his master was
on Fry day las I, and John Baltbur aud
~alt»uriu Gil&tooti, and AuilviiW G oil an
in Balinirinoc'b, and they did ryd
ly 411 the evening eaittwaiYt, anil they b^d
vordti, and hii> mazier and John Ballour
sters on their horses, aud his niafiter^s
I |rni>, and Jobo Balfour bade ane
rbtJi hettd.
f &c Sv htcriitU eir , - W if . C AftMICH hSLL*
•t (tfMay. James Robiruon of
i man of the age of 4^ years
I itth as he shall an-
t fid ay last the 3d
II in bis own housci
n iDon, aod c»me to
>-ir MfotiJd bt; toUn, becauMi
thcT came a man ryding throwatbe ctosst wifb
(listoUf und swDrd,'aud then they told th« de«
mmeut that the bishop's cuach was new goo«
by, and ef^erwards silting still in the liou«e b#
heard two shotts, and then went forth of the
houaeand heard another sbott, the reck* w hertiC
covf^re«1 ths coach, and that he beunt greal
Bcrccckjn^of ane woman, which made him ap*
prebend if mv lord !St* Amlrewa wasin thecout h
he woubl betilteij,andthat hedidseeab<jut iiyii
men on horses that was acceisorie to the act ; ,
bnt he tuiowes non of them, and etterwards
they went southward from the coach a htle^
and returned sgaine to the coach, tmd then
went straight westward Us they came, lh« de-
tioner being at ane dtstaocc Irom them about
lalf a myle or therby.
Sic $tibicribiturf James Hobertsotvc.
\Vw. CARMlCttAELL.
Wiiluim Balfour^ servitor to John Milbr^
tcnent in Magask, married man, 32 y e&m of
a^, or thereby, being swome and examined,
de[K>ns upon oath, as he shall answer to God»
that on ftiaiterday last« the third of May instant^
bet wilt ten and twelve hours in the ilay, bt
was in the barn yard ot Magask, and ther cam*
several persons ther rydsng on horses, n«ar
twelve men, or thereby, and one of them canM
throwe the clos^ie of ftlagask, aud be tboughl
they hade been the king's guard, and he went
in and told his master vrould be taken, ai
they did ryd throwe the land hastily towi
the' East dyk of 31agaak, and dtd Ibflowe tb^*
bishop's coach, whom he did see they didsbufi
eftcr the coach, and turned the coach, and
killed my lord Sx. Andrews. Also tlie deponer
flepoos he knewe James Hui^ll in RingskeiUcy
was one of them, and did ryd throwe the closse
of Magask, on ane bniwne horse, and G«orge
Balfour of Gtistoun was ther, he did see him
also, it was ane brown ami aue grey bori^ that
did lurne liic ctach, and George Balfour was
rydingoo ane gray horse, iind I be peiM^nsdid
let ther cloaks Sie irom them at .^li^uask dyk^
and etterward, v»hen they did the mui^CTi
they came and took np their chiaks agam,
tut the deooner being lerntied, coDvoyod bbn*
self out or the way to tbe house. l>ep<yiw li* ,
cannot wreitt.
Sic Suhtoritihir, W. Cabmiciiael.
The panodl Da?id naekstovo «f Halbilct,
being interrogat by hi* im^Um idfotat as
uidor to bis own tiDilicalioii, svhcr be ir«i» Ibfl
tymt; the arch liishop was mtirdei^, and wbtf
he first beard of tJie munler, and if he wi»ii
his sister's house in Mortottn, the night be iv«s
searched for, refuiies to answer, but AilbeM» It
bis ibruier Declinator*
Efter leading and addnceing of the wbtl%
Probation, ihe lords ordained the Assyse, t^ i
inclose aud reiurne tbet- verdict, who accprd*
ixiglie removed altogether furtb of the oour|.i
■ — . — * '
* Smoke. Jamleson spelU the vord m Afft
ways, Reiky Hcek^ lUk*
•43] STATE TRIALS, 32 Cif ARLBS U. l680^Tm/ of David Haekiiayn, [814
to the assyse bouse, wher hario^ reasoned, and
voted upon the poynts and artides of the Ij^-
beil and probation, they re-entered againe in
court, ancl returned ther Verdict in presence oF
thesaids lords, whcreot'the tenor IbUowes. ** At
Edinbui^i Uie 30 of July 1680. The persons
constitut and sworue assyisers, be the lords of'
his majesties juRticiarie lo pass upon the tyrail
of DiKVid Hackstoun of Rathilet, for severall
horrid and treasonable crynics particularly
contained in bis indy tinent, they be the plurali-
tie of voices choised sir I'ali-ick Threpland
Chaucellar and'tlie said Mr. William Nimmo
Clerk to the assyse, and tbercaiWr having- con-
sidered the lybdl and contenls thereof, with
the depositions of the wholl witnessiis upon the
respective articles of the lybell, and being ful-
lie ami ryplie adwised tberonent, doe unani-
mouslie, ami in one voice, be the mouth of
sir Patrick Threpland, Chancellar, fmd the
pannal, David Hackstoun, of RaUiiJIet, guilty
ofbeinpin the rebellion, against his majesties
anthoritic, and at the conflict at Ayres Musse,
bctwioA his majesties ibrccs, and the rebells
defiitether, and for onrneing the treasonable
papers mentioned in the dittay, and thereby of
the treasonable contryveing^ the destruction of
Ilia mi^estics lyff, autboritie, and ^emment, '. *
ud also of bis treasonablie declinmg bis ma- * Lowrie, John Halliday, and <»ptaiQ Jhm
this thretieth day of Julv, instant,* betwixt
three and fy ve o'clock in the aflemoon, and or-
* '* David Uaxton of Rathilld was ood-
demnod, July 30th, and executed the aaaa
day in a most severe manner." 1 Foontaia*
hall, 119.
** There has been (says Hfr. HunMt vol* ^
p. 344 of his Commentaries), a variation of
practice, in the article of naming a time ftr
execution of the Doom. It is only in theeomsi
of the present century, (the eigbMntb oentmy
is meant) that any special order on this hmi
has come to be a necessary article of the mb-
tcnce : for, acconling to the oMer atyle. the
time was lef^ quite at lar]^, to the will or the
inferior magistrate ; and it anpears that not ib-
commonly this direction bad been carried tke
length of executing the sentence on the f«y
day that it was given." [According to a nols
M Jan. 1624, in the MS. Abridgement of Ao
books of Adjournal, the ordinary course wwti
proceed to execution on the day afler the sci-
tence. I fmd this entry in the Diary of Ro-
bert Birrell, Burgess of fidinbui]^, wbosenn
to have been an exact observer of mddenls of tbii
nature: * The 8th of Februar (1597).
Windiezcttes, Johne Moecraip,
jesties autboritie, and the autboritie of his ma<
jesties privic coundll, and justice court, and
also of his being art and part of that horrid,
barbarous, and sacralegious murder committed
on the person of the Ute arch-bishop of St.
Andrews, primat of all Scotland, upon the 3d
of May, 1679 years.
Sic Subscribitur^
P. Threpland, Cbanoelar."
Efter oppining and reading of the whilk
Verdict of assyse, the Lords Justice General,
Justice Clerk, and Commissioners of Justi-
ciary thfrfur be tlie mouth of Adam Auld,
Dempster ol' court, decerned and adjudged the
body of the said David Hackstoun, of Ra-
thillet, to be drawen upon ane hurdle back-
ward, to the cmce of Edinburgh, and ther uiion
ane high scaffold, erected a litle above the
croce, to have his right hand struck off, and
efter some tyme, to have his left hand struck
off, and then to be hanged up and cut <lown
alive, and his bowels taken out, and his heait
to be shown to the people, by the hand of
the hangman, and his heart and bo wells to
he burnt in presence of the |>e(>p1e, in ane
t^re prepared for that purpose, upon the scaf-
fold, and afterwards, to have his head cut off,
and his body devidit in four quarters, and his
head to be afiixt on the Nether Bowe, and one
of his quarters with butli his hands to be affixt
atSt. Andrews, another quarter at (jlasgow, the
third at Leitli, the fourth at Burnt-island, and
that non presume to be nioumiug for him, nor
he tf» hare ane coffin, and tliat non be on this
scaffold with him, but two baylies, four offi-
cers, the executioner, and his servants, and this
aentence to be put to execution a^aiusi him,
* Lowrie, all hangitt at the Crosse, for cmh
* terfeiting fals wreittis, quilk was gnle pilii
' to sie.* It appears from the book ef Ai-
joumal, that their sentence bad been pro-
nounced that, same day. ] *' This bappiawd ■
the case of lady Glamis, July 17th 1S37, sf
Hackstoun of Kathillet, in 1630, of BaiDierf
JaiTieswood, in 1684, and Kichard RumbsU,
in 1635.'' [Sir Thomas Hope, in his Mijsr
Practices, makes mention of an act of ocMUicil
in 1604, against the sudden execution of m-
tence; but this ordinance, if in truth any sodi
was ever passeil, does not seem to have bsei
comjdicd with in practice : and indeed it ody
enjoins to delay tilt next day, or longer, if ikf
judge see cause. See Iloyston'a notes, ad. p.
289.] ** Nay, by the express appointmeat sf
the law, a murderer taken in the fact, orn^
hand^ as it is culled, was to be tried and esa*
cuted by the sheriff within three sons ; andliy
the statute 1695, c. 4, this priM^ipitation wtf
only so far corrected, as the time i4 executiHi
was now lef\ to the discretion of the juilge, art
exceeding nine days atler sentence. That
are, however, obvious reasons in tlie sitnalini
of Scotland, a country so n-m<.te fntra tbesrtl
of mercy, not to mention other verv poweifrl
eonsiderations, why a more liefinite rule ou|kt
to be prescribed on this head, anil the unbappf
convict be allowed a longer interval betwect
his doom and execution. Yet no provision «tt
made in this behalf, before the lltbol Geo- 1,
when, among other salutary rsgulation^
thrown into the statute of that )ear, for dif-
armiiig the Highlands, it mas ordered that at
sentence of corporal pains should be excciil^
Hithin less llian thirty days afler its ditr, if
pronounced to the southward of the Forth, MT
STATE TRIALS, d2 Charles 11. l680.— /or TrflfwiK
ilslux his name, fame, memory and honoiir^ to
lie cxtiectf and bis armcs to be rireD, ami de^.
lale f urtb tfl tbe bfM>ks of armes^ solbal tiis pos-
inlhin less than forty dayii, if pronounoed to
the nortbward of that river. As far as con*
cerncd th« inferior corporal puoisb meats, such
am flCDOrgiiig or pillory, this Jong delay of exe-
CQtklii waa found troublesotne, and a discou*
OtgeoMiiit to the trid of petty offeoders. And
^^jfaa therefore abridged by statute 3d Geo.
^K. SS> which allows the infliclin^^ of any
npbiiliineiit short of death or demembration,
ttAar tbe expiration of eight duys, or of twetFe
4sy8» fn»m the dale of the judgment, according
aa It is pronotim?ed to the southward, or to the
northward of the Forth ; saving alivays the pri-
ttS«)it<^ of applying to the judges of the Court of
iustictary, who, or any of them, may stay the
execution of any such sentence of an inferior
jutlg^, for the Kpace of thirty days, if there be
c^iMe for such an interposition.^^
As to the caaest of murderers taken red hand,
f; Hume, in another place, notices, *-^ that
t enlargement of the period for doing justice
the ort*enderf from one sun to three, neems
10 have been owing to the erroneous narra^
live of tlie statute 1491. c. ^8. which speaks
of 1* the three tun nes contained intheaiddiaws;"
wheiwft, in all of these, the allovi^ance was U-
nkbiii^oe day only. Farther, it was provided,
gtfiwnitv. by statute 1695, c. 4, with respect
to ^il crimes wherein inferior criminal
COM hitherto restricted, to try and «x-
eut^ witiiiu three suns, that this time shall
li«real^er be restricted to the trial, and sentence
^y. but out to tiie time of exec u lion, which is
limby left to the discretion of the judge, not
^Eoeeding nine days after sentence/^ It ap*
pnrars from lord Royaion^s notes, that the occa-
I €f passing this law was, that a person had
ittled murdsr when in iiqitorf and was
condemne^l, and eJtecuted in the i^ame
Riy condition. But even after that iro -
pofcmeiit, there still remained this serious ob-
jictimi (beside others of some weight) to so
pfncipitaie a form of process, that there was
MistaSctenttimt: for applying to the king for
laercy, nor even to the supreme court, for re-
?iew of the proceediivgs* Now that exception,
tho^ was obviated by the statute Uth Geo.
1st»c, V6* '' Under these restrictions, therefore,
(for ought that, says Mr, Hume, 1 can see, and
to judge by the face of our books) "this
Testlg^ of barbarity is still a part of out law.
Ihii tl >s difficult to imagine, how any trial can
pMribly be absolved, with (he obserrance of
•Ibose lirms, which are now esteemed materuil
to justice, within fiu short a periml, as ttiree
da}*s af\er the slaughter. Probably, statute
fpould before thj«> time have interfered to cut
fijf Ui« appearance even of this rude nriviiege,
if in truth it had not been so effectually ab^-
gated by the manners and sentiments of later
lames, which have hindered any attempt,
Imn being made, towardii tJia use of so pas*
( A course of tfisl."
teritie may never be able to brnik or joysr^
any lands, heretages, oflfices, titles, or digoitiea^
within this realme in tyme coming, and to have ^
Fouotainhal), under date August 15th^ 1684^
says, " The Privy Council are resolved, that- <
any ^1*0 are condemned far Bothwel Bridge
Rebellion, or disowning the king's authority or ^
any other treason, shall be allowed but toreai ]
hours, and shall be execute that same day tbd <
sentence is pronounced. The French hava {
<some such custom."
" Nov. 24, 1684. The Council being inform-
ed, that tliLs day three coffins wer*-* carrieiV ;
down the sti-eet, for the persons w ho were this
day ordered to be executeii fur treasonable prms*
tice«, and owning the late treasonable Declan^ i
tion, the council recommended to sir WiHiant
Paterson, to enquire into the maker and painter
of them. So very low did their zeal against *
the sufferers creep/' 2 Wodrow, 350.
Fountaitihall mentions the same thing 7
*'Nov. 13, 1684. Three fellows called Wai^
Semple, and — ^-^ * who wer? suspected
and apprehended, as owners of the late Apo*
logetical Dcclai-ation of War against the Kjog«
and threatening to murder all their [>ersecutor9v '
(which was affixed on the 8th of November last,
on Lintithgow market cross and church-door^
and sundry other places,) were brought in and
examined, and I hey owned the contents rf ,
that scandalous paper, and did obstinately bida
thetortui'e of the tbumbikins without shrinking,
till they were taken out of them, and then
they fell down.'*
Nov. ^4, 1664. At Criminal Court, the thre# j
fellows mentioned supra, viz. Watt, Semple,
and ■ — ■ are arraigned on this ground.
that there being now a declared war by that re-
bellious party in arms, and who had ali^eadyi
executed their bloody declaration of war, hf
kilting two of the king^s soldiers, yet the pan-*
uels refused to dbown the said paper as trea-
sonabte, and so were guilty oi'neutr&Uty ; which
was not to be tolerate * iti statu belli* t For they <
were either on the Lingo's side, or for these Re-
bels ; if on the king's side, then they ui\.^hl
and ought in duty to declare their deteslaUon
and abhorrence ot it ; if they approved it, then
tbey incurred the pain of treason ; aD<t to '
stand indifferent trimmers ^ in hoc statu belh*
was impossible, seeing those that were not fov
the king, were in such a ease against him«
This not disowning^ (though a new case,)
yet the justices I with adviccof the privy oouucil,
found to be treason ; and this was not con* '.
demniiig men for naked opinions : For, Imo,
They had been tortured, nod yet refubcdto dis-
claim it, ijdo. They were found with these tie*
darations of war in tlieir pockets, 3tio, Thej
were certified of hanging, if they would not
give a positive categorick answer ; but if
they would seek a time to he instructed, thejr '
should have it. Some thought a proclamalbii
should have preceded, advertising them of th#
certification of htmging if tliey did not disown*
Thus wbsn ttempk ss^w hs could not aroi4
Ufi STATE TRIALS, 3« Charibs II. l660j~-Ttu,l of David
^
*
I
i
fbrfiialt, uminitted, and liat all pnil cuoilrie liia
knds, heretagta, tudcs, itCMiiDg»» romne*,
htoging by his cmuttons tcrftJ^ef^niTf ^^ ^^^"
oponK' owned anil Jivovred the said pttiu'r ob
, MfSliiiiiDK' nothinv: Uiil^hanKey ivtfie bomid
W. Tlie other Iwo shifted, that itu wna ti^rct?-.
i^etio thv vnnl of Qofl, ^hun tUey were lor it ;
fcttt b«ing ur^r^ to uriv« un instance where
Om1'9 word allo^rH inunJer) Ib^ were 91-
Imt ; thoag:h they ini^ht have wn^ted Moftaa
bis killiTier the Eg-ypfian, Phineat mnniog'
ZiDiri and VaM tli rough the body, Ebnd*s
stabbing- king l^lon, 6cc. but theac wvre he-
nick impuUps, t^prraaty allotted bj God, and
lluj wnere maj^stratea, at Umxi the two tirsL
The aacis* found tbein gysWty ; and they were
mm&*atsktd ak>tU three o'clock, and wtre im-
ncfUiilely earned down to tlie Gallowiee be-
fnpeeii Ldth and Edinburgh » and hanged Ihi^re
Letbiv five at hiip^ht. It is £tranfl|e to ttad thta
obatinacv hate count^nancrn* ; for pood black
coffins followed them down Leiih Wynd, and
wnuien privily in the night stole their bocUes
ffnin lUiiKT the pbbet, and carried tbeintolhe
Kte of the Grayfriar s Cbiirch-ymil» with a
ii{^i to have buried tbont there ; but the
priry council ordained their corpa to be drawn
Mck aif^n to the GaUowlee, and the writrht
Who mada their oofiins to be imtuired after
and afpe^iended, that he miffht di^coFer who
bad emyiloyed him ; but the ma^ristratea of
Edinburgh eommonl j furnish cfaesla to the poor
maletaetorav — On tbia occaaion the ?3d act of
parhameiit 16BS was made.'*
The practice of *♦ warriojg^ with the dead"
aaem to hare been extensively adopted in
floailatid in Ihese times. Worhow,' i ol ij, p. 4a,
after re] at! li)^ the discomfiture in Glasf^ow, of
the conventiclerB, procet<is, *' Whi^n ihey are
ftirly niwrched off^ the kind's forces came out
af their barricadoe. Great wa« the inhumauity
«f the foldiers to the dead bodies letl in the
aUlBtt^ I find ftorae papers assertin;^ thut
ClaTertmiise and NWne of ttie officers guve
Ofrderathat none should bury them, but that
the butchers duf^ ihould be sufiered to eat
thorn. 1 cjm scarce ptiivail with inyidf to
think there Mere any s4ich w^ttn ^iven \ but
K J9 certain thatUie Ecreti dead bo<iie^ lay upon
ihaatreet from tleven ofthedm-k till' night
came on, and the eonimon noldierv would not
permit them t*» be carried into houses, yea,
QCtually hiotlcrcd by force people who were
l^yiai^ alKHit this ael of humanity : yen, which
^rther disaorerfl their nauiehty barhaiity,
when in the etentng they were taken into
houses, and dressed up tor their buritil, the
aoldiem eaofie io and turned the bodies out of
tlieir dead clothes, and went off wilh the linens.
** An^l when a kind of cortnivance was ^vcn
to bury thein^ none durst a<ipcar to do tliis last
<l^ce but wom4*n ; yea, when these were car-
rying them up Ibe street to their burial-place,
•iteh was tlis unpamlklcd rodeness of the sol-
diers, Ihht th«y attacked the women, cot the
fbtha wnth their awards, nod fbroed
t
pcMkseasions, cvKids ai>d |
pertainin^f to him, Ut ^mtr
l^la
away the bier-trres from thrm . Upon tha tbr
women turned off some vf tlicir uwn piaidi,
folded them by Uieir lengths, and put thfs»
under the eolfiiiB, and weol otk with them, Itt
the mereilesB aoldiets, after they had maBwsi
f hose wha w«te tiot c^rrybkg^ c^tue aad l«h
the plakis fmm themk, ailrii wwiihl nnt n^m
tham to carry the ro^ia to ihmr grmt a^ •
ihey were set in the Alms* iMtuce mm lit
Hi§rh Chan>h« and I think caotiii<ii4 thsvafl
Mr. Welsh and some of their friends in a fsv
days came and burK*d thetn."
And in another place speaktnipr of iha a^
ra4[^os croehie* of the soldiery injthe rm
1685, he says, that on May 4th » ♦* 1
he« and John firyee were C4ifri«l d«wa •
Mauchlin, and, %vilh some (»thmr», wef« tii*
mineil by tif*ui<! t • ' ^~* imoml^ aid
an Aitsize wa^ i ,i' fioldifT^
and an Indictment was givcu tcien^ Hay ^
It may be« some of tny readers may dam IS
know Uie form used in those suntiftar JvdiciMf
courts ; and theiefbte, it haiof aWt, is ia>
sertecL
€ Feter GillieSi in l^f utrend-aiici| •
} John Hryce, in West Cal4ar.
* You and ilk one of yon are
contrary the lawa both thunei
the laws and prortic^iS of
several acts of pai'tiament, aHilonf H
bumble suhmisMion, by all pvraaoft, to mA
power and authorial and nn aolmowlf^
ment of I heir just power an '
of their full c<Jnseiu to the law«
their jurisdictions, and inriog' i
monstrations of their to) vUy, an4adlMraMats
tlleirpr^fv•^^ -^^ '''^ff head and mnmig^vi
all thmg . vvUrn recjnireft; aadtU
opposer<h I . . . .\ 1 [ t d reiuac rs to |pis* sniK
eient testimony of their loyally simI «onssSEt
as af«>re!M»iil, fn>ins: ju«tly to Ite repiiiad saa.
mies, and ont iriends, reWlsaod Qotaiih|ec0i
and, by the same laws and ordimiMiiiai aitt*
be cut oti from other loyal, oMienl, Otm
conforming bulijectJi,
* Yet true it is and of rerity^ thai yon, iss
manifest contempt of those laws, iiions^
living^ under n prince and adiS4««((iii
having cast ol ! God, tety and sw«
g^iancetolhe ' not <»uly, i ^
the word of < all I aw and '
most traitei'oufe. , ..:.,> .ijtjuon-*!)
lore and obedience to Icin^y posse
lonqp time hoino|oi;>ilin|r wrth' tlie
of^^oac rrbeliious traitors, andbh
God and thr liinjf, jf)^^fnif with theca (
wicked r v%mn^n^ oalhii^
but an li I < > and ttnailiili
hi« majesty's i^ubjtUs i4 the ea^lrafy sfi*
nlon ; hot also npenly anti aviowerffT dtoa^a'
uig the ktnflT his juKt »ll.^ nA i^ttfa*
ment, adheityl to the c« i*o<taf saJ
approving rising in iiriii^ agwivsS 1^1
] STATE TRIALS/33 Charlbs II.
uoe pcrpetoalUe vilb bin liyness, in pro-
c, IB tymeoooiiDg'y which wai proounced
TTie MBtenoe," iayi Wodrow, «« was
■ted with great aolenraity, and severiry,
jrfa he was a gentleman of good descent,
Dent pnrta, and remarkable piet^, and bis
' temMv mangled, and he dying of bis
ads. Aner his hands were cnt oft, which
Bdufcd with great firmness and patience,
IS drawn up to the top of the gallows with
I thoae commtssionate by him, and refuse
ny for the king, whereof, and of the other
jnes specified, you being ibund guilty by
■SHze, you and ilk one of you ought to lie
Mbed with forfeiture of life, lands and
idi, to the teiTor of others who commit the
ibcfcaflcr.
Ifra are summoned to compear before
Unant general Drummond, commissioner
Jaslieiaryy within the Toibooth or court
I6ai.— 7m/ ofCargitt and otkerv. [950
a pully, and, when choaked a little, let down
aliYc within the hangman's reach, who opened
his breast with a knife, and pulleil out his fieart,
which moved uimni the scaffold. Then the
executioner stucK* his knife in it, carried it
about the stage, and shewed it to the spcctOd-
tors, crying, * Here is the heart of a traitor.'
And then the rest of the sentence was executed
as ahove. This barbarous procedure did very
much discover the malicious temper of his per^
secutors, and imbittered the spirits of a great
mau}^." See the Account of the Execution .of
Harrison, vol. 5, p. 1237.
* place of Mauchlin, this fifth of May, to an-
' swer toyour indictment.'
'< We ma^ be sure such an assize wonlil
bring them m guilty, and they are sentenced
to be hanged at the town end of Mauchlin,
May 6th, which was done accordingly. No
coffins were allowed them, nor dead clothes ;
but the soldiers and two countrymen made an
hole in the earth near bv, and cast them all
together in it." 2 Wodrow, 504.
r. Trial of Donald Cargill, Walter Smith, James Bom,
William Thompson, aud William Coothill, for Treason:
33 Charles II. a. d. 1681. [Now first printed from the Re-
cords of Justiciary in Edinburgh.]
tt JssnaARis, S. D. N. Recis tenta in
no Burgi de Edinburgli, vi^csinio
die meiisis Julii 1681, iier Nobilcm
d Poientem Comitem Gulielmum Comi-
tem Queensberry, Justiciarium Grnera-
IsBicthonorabiles viros, Ritchardum Alait-
Imdde Duddop, Justiciarie Clenciim,Ro-
boium Domuium de Nairn, Dominos Jaco-
loBi Foulis de Colintoun, Davidem Balfour
ieForret, Davidem Falcnner de Nou ton, et
Rogenim HogedeIIarcauss,Coniissiona-
fioi Josticiarise dicti S. D. N. Regis.
Curia legitime afiirmata.
Intran
c Jkmald Car^illf* preacher,
r. Waitrr Smithy preacher.
** A stcange spirit of fury had broke loose
ntof the I'resbyterians, called CargjHites
\me Cargill that had been one of the mi-
ll of Glas^w in the former times, and
then very little considered, but now was
h Mkweil, to the p-cat reproach of the na-
Tbeie hdd that tlie kin^ hud lost the
(if the crown by his breaking the Coyc>
, which be hail sworn at his coronation :
§f Mid, he was their king no more : and
i famsl declaration they renounced all
iVMC to hinif which a party oft hem affixed
■ •rOHoTDanfrds, a town near i\w west
■*• The guards tell upon a party of them,
m iktf wnd in arms, where Cameron,
Mr. James Boigie^ [hereafter in this Record,
flenominatcd lioig, which appears to have been
his pro)ier name.] preacher.
Witliam Thomsmiy servant in Fresk.
William Coothill, seaman in BoiTOstunoes,
and prisoner.
X £ are indyted and accussed. That wher
notwithstanding from the law of God, the law
of nations, and the municipal law of this king-
dome, and the allegcance of the subjects there*
of, ther lye great oLli^tions upon them, and
you, to maintain and defend the ro^'all and so-
vereigne power, and authoritic of the king's
majestic ; and be the common lawe, the law of
nations, and act of parliament of this kiogdome,
and constant practtrpic thereof, the ryseing of
his majesties subjects, or any uumber of tliero.
one of their furious teacliers (from whom they
were also called Camcronians) was killed •
but Hackvton, that was one of the archbishop's
murderers, and Cargill were taken. [Crook-
shank observes, that bishop Bumct was misin-
formed in saying that Mr. Cargill was taken
here.] Ilackston, when brought before tho
conned would not oivn tlicir authoritv, nor
make any answer to their (piestious. lie was
so low by reason of his wounds, that it was
thought he would die in the (juestion if tor-
tured: BO he was in a very siinimary way
comlemned to have both his I'lands cut off, and
then to be banged, i^ll this he suffeivd with
a constancy that amayic d all people : he soewed
31
851] STATE TRIALS, 3SCHAELEsU.l681.^7Wilaflki«tfflmr0lkrj^ [8Sf
the joyniiig and assenihleiDii^ togither in
wituout, and cootrair to his nu^^estiea roywHk
command, wanrand, and autbontie, and the
abaiting', assistingr, reoepting^ intercomoning,
and keepiny teiTOaiiwidauw wilb mmIi vdbdK
and soppheia^ of dwm wkli Wmt of mcb,
hone, moue^, armea, and funiahing IheM
xWth meat, drink, powdcr^ball, are moat bar*
to be all the while as in an enthasiaslical rap-
ture, and insensible of what was done to him.
H'hen his hands were cut off, he asked, like
one unconcerned, if his feet must be cut off
.likewise : and he had so strongs a heart, that
ttotwithstaudinif all the loss of blood by hia
wounds, and tne cuttings off his handi, yet
when he was hanged up, and hia heart cut
put, it continued to palpitate some time afler
it was on the hanffman'a knife, as some eye-
witnesses assured me. Cargill, and many
•tfiei-s of that mad sect, both men and women,
•ufferad with an obstinacy that was ao JpArti-
4;u]ar, tliat though the duke sent the offer of
pardon to them on the acafibld, if ihey wouhl
only say God bless the king, it was retiised
with great neglect: one of them, a woman,
aaid very calmly, she was sure God would not
bless him, and that therefore she woukl not
take God*s name in vain : another said more
suUenlv, that she would not worship that idol,
nor acknowledge any other king but Christ :
and so both were hanged. About fifteen or
■ixteen died under this delusion, which seemed
in be a sort of madness : ibr they nerer at-
tempted any thing againat any person; only
they seemed glad to suffer for their opinions.
The Duke stopt that prosecution, and a^^nted
them to be put in a bouse of correction, and to
be kept at hard h&bour." 1 Burnet, 511.
Of this mitigatory interposition by the Dnkc,
>Ir. Laing intimates a doubt: *' No example,'^
says he, " of the fact exists : on the contrary »
executions for private opiuion continued to
nmltiply during his whole administration and
reign. It is asserted, too, by the same author,
that the Duke indiilgeil, without cmotinn, in
contemplating the torture of State Prisoners as
a curious experiment, while other conniiellors
recoiled from the scene ; and on one occasion,
it is certain, tliat he assisted, from choice, when
tSpreuU (see the Case in this VJume, p. 735)^
was twice exposed to the que&tiou almost with-
out intermission." Hist. vol. 4, p. 111. ^!jee
also a subsequent Note to tlila C-ase.
Wodrow, Book 3, chap. 5, sec. 4, says:
"Upon the last year [1680) 1 gare sonii^
account of the condemnutiou and execu-
tion of severals of Mr. Camenm and Mr. Cur-
tfii*s folio wei-s, for disowning of the king, and
tearing them at Field • con vuiticles; and upon
this KLH^ion 1 shull put togi:ther the accounts of
near /wenty more, with Mr. Cargil himself^
who nuiVur Jti this y ear, just in the ordei- of iini<^
tliey fell out.
** Anil \%licn onti'ring upon this ineluncboly
subject, 1 cannot but regret the cunning and
unpr»:cedeuted soierity otthe iicrseciitors, with
a great uiafiv of these pe<iuie u ho came be-
fore them. It is certain, the managers had
mort; to say in iheir own difiBBce u to the trett-
munsr whw mtmj us ■
rould know, tWhy
poor people ondv-
ofall&alwudoM
ment of these now voder ther hnd, tfau io
many prooeases before and afUr this,
persona wore taken in actual veaialBnoc, \
the beck of a tdad of declaration of war I _
theking; then the prelalea and [WiaeciUni
triomphed in the nectisily and jnatico of cal>
ling tooB mS, and yet it was but a very km
wM were thus taken, two or three at Aub-bsi^
who were attacked, and obliged to deM
themaelrea ; but the grcatot part who loflnd
now were such who were diBoorered bylblk
bribed mfonMra, and alMged to lMsrcba««
iield-mcetinga ; and when brought balbrothw
at Edinburgh, a conlcarion was cxiorlii W
boots and thombkins from somo of tbea,«i
the rest, when brought before the josliany,
cooncil, or committeca of it,
by captious qtiealMns, uponi
people could not be snpnosod to \
and upon their answers tney were i
and executed.
** True it is, thev did disown the ldiw*SM-
thority, wherein 1 hare alrtady deem la
vindicate them : hut the reader who may bet
stranger to those tines, would I
ownmg the authority, tiie poor
stood a vurtual appnjbation or all i
by the king since his restoration, the resdnA-
ing of the excellent laws and cooilitiitiaB ft
once enjoyed in Scotland^ and the sersnthi
against, and the persecution of the peofAs if
God following tliereupon. And this was ialhi
poor country women and men now pnttodetfh,
a matter of ouinion and conscience misinftwMd
indeed by the unwarrantalde ez^resBDW if
Kome who were soured by the rupdity of the
times, and, it may l)e, likewise by aono oa-
guarded expressions they might hare bend ri
some sermons in the (ielSs since Bothwel; hft
then it is certahi, this waa such a misiaftms-
(inn and ignoram^ offsets, as they could tents
ever be brought from under ; and indeed, ci-
crnt in an instance or two, no care was tikes W
inform them, hut they were hurried from tin
liuncil to the justiciary, from tliem to lbs yii-
son, and in a few hours into etcruiiy.
''Mean while the govenunent conMbeii
DO manner of hazard fnim a handftil of thsiP
people, and if any thing of this nature esali
breed disturbance, it was the barbarouaoHis-
metiesthcv ran to with such of them si M
into ilifir hands: but it was easy to have l^
cured tlie peace against ten times their noiiWi
by gentler methods, than butchering so oMf
scores of otherwise serious and religioni p0»
sons; this with many other nnaoconotw
measures, now taken," did rery muoh kmm
the king, sully bis reign, and made the admir
nistratiou burdensome and giieropa to wA
tudes of his best sulgects.
^^ Sometimes indeed the cooncil in iheir gMi
mood, would offer th» eounti/ pjeopleiWi
89S]
STATE TRIALS, ^^ Charles U.'tS^U'^for T^eanm.
[85*
rid« hyflouif and nbomiosble erytnes of r«M-
Mh\e with forliuhape of Fy^, lands, h^RitAM,
mmd e«clj«at •f tUer movthles, and hj ilie Irit
ltl«, u^i04i aeknowleUi^inentii m»4 declarftljoiifi^
itliiob U first view oeeni ▼erv low mmI rcAsctn-
*ble ; iHit if uarr<»w)y coMiiHirei^ \h&*ti were
impreiiable by tbe paople to wtou iLey w«re
QW0, is thdr present ctrcfitintmiiees^ niu) under
ti« u^taking of aiau^rs wim li lliey biii i and
|. IMiat ol»6orve, thai jt was only to the ifttriiMsr
^ i^orsQt sort such uneti were miJe^
tander lli« pro6|»ect they wutiM ooi tie
Hi liiice the gense the [leople took the
I iw, did import a rewsding^
ring wttoeas agtiMst the evil ol' the
rea, aoost ef them did ihiak tlie acccp-
Be managers proji^^sgls included aa ap-
i of what ihey b^J heen, atid were at
ling. In sbort, the cruelty the 9ul'
larked in one prooesy &Ker aaother,
hole conduct of this time, and Ihe
tfetchca and eunnin^^ uat-d to carry
i4ieir fe^, made them jealous of every
j; pro|H^f4«d ; aud their warru Keal for^ and lore
CD the truth, the «uiaU prospect they had of any
esid to tiHir diiilj cnarea aod troubleft, together
wUh a g4^erous kiod of tadium vUg^ in such a
itkkfid age 2s this, did prevail witti them to
fliaiid oin. And all these aoine way heightened
the wickedness of the managers^ in putting
them to dMtbi of which I cotiie now to give
mum ac«ouiit.
M f^ inatance of the trial and exectttitm of
I tw^fmof women* with which this year bcgiuf,
I iiSQWiiing proof of the iniquity of thit period.
^ l^poothe nih of January, [ find Imhd Alison,
I • JlittC tttunarried woman, who Uve«l in Perth,
Harvey, a servant intud in Uorrow-
s, where M>a]etiuies Mr. Cargil haunt-
HI, ilaged for their Ywes before i lie justiciary.
Tbti la an evidejiceof what was jti6t now said.
Wh^ hazard could tlie gov^'rument he under
fNaa iWQ such persons, a^^tADiat whucn nothing
eonkl be adduced but their oijiniouM, which they
hftd tiketi Up from the severities nf the clerg^y
it Perth, as the lirst owned, and the viidi^nce of
ibipoldiarai' Their private «entimeiiU, ( am
I ptniwaiM, GDidd have a very auialt ijiHu^m'e,
isd would acai'ce ever have been i»oticed, hcid
not the severity of the manatrers brought tiiem
Qgioo the itage, evidently to their own reproach
Mdahame.
^ Their interrogatariefi and 8i>6eclte9 are
pmied in the C'loud of VVitncuses, and 1 sliall
gi^mhmt of their tnxil befocvlbe criminal
CMVt, from the records^ if once I had iM^iced
m few things Goncerning them tfid iheir treat-
naoit befare the council,
w Ifobd Albon lived vefy nrivajtely in the
Uma ofFenhi and waaof a saber and rdigioiis
omfiKlioni the had now and then heard
Mr. C^npl fMtch in the fieUa, and mm^ few
•lh«n hmm Btthvsl, bui loi wy uilt^, Aehl-
w twlipclet ntl bcMg eommtm m that country*
IJ^Ht her DttikiotifonuUy at Pirtl), aad apeak-
aist IB pariittnent, king James 6, the egtntee of
perltament faithful He promise, perpetual lie to
obey, mealawe, and defend the prerogative
myall, of his sacv«d majestie, his airs and sdc*
m^ against the aeveritv used upon aome ie«
Ijgiuus people them, she was seized, and ne-*
tmng ebe could be laid to her charge, till ahe
WHS brought belbre some of the magiatrateip
aod in her simplicity ▼olimta.riiy contest eon*
terse with some who had been i&clared rebels.
Hlien tiie aoaBagers are informed of this a
party of aoKliecs seize her, living peaceably lin
her okamber at Perth, and carry lier into
Edinburgh. Whe»she is brou^lit before th«
coMDcil, the interrogntonen were invidiyns and
enknano^, and knowing they had no probation
hut from what was ehcite from her, they^
essayed sometin>cs by commcndatioDS and
iMrofDisea, and sometimes by threats, to briitg
her toconfesi atie had converved with Rathilety
Ballbar, and the two Hendersons, said to be
coneerned in the primate^a death; and whc«
aofoe very trivial tilings were owned by b«r«
they jested her, and acted the bufihon mher
than privy coonsellers, as may he seen ia their
iuterrogatories.
^* Parian Harvey was taken up In the rood^
when going to aeme aennon or other, and wae
soon ensnared by tlie questiona pot to her.
Shu was scarce twenty yean when brought
into Edrnburgb, and sisted before l)»e couocil.
They had nothing tu lay to her charge but-
what she owned, to wit.lier being at field eon-
venticles.
declaration,
knew nothing about (
to en^^aare her, she aatd she owne^ tbeift, be*
caitseabethon^ht them agreeable to the scrip*
tares. Mome of the oounsellers told her, A
rock, a cod, and bobbins, would set her better'
than these debates, and yet they cast them up
to her, and murder her upon them : and by
the way it may be noticed, that the biahopa
were the great pruposem of questions to these
poor }>eop1e, which helped to cxaisperate thcnav.
especially when urged to give them their
titles, they looking un them as at bottom of all '
their persecurion.
'^ At^er they were examined before the oouti«.
cil, they are brought before the crinttnal court.
This was tlie curistaut pnictice at thiti Lime, the* t
one day to bring siidi us fell mto tlieir hand.
before the council, and there engage thfm
by captious questions into a confession of stft«
tiitory crimes, sikI next day to paonal thent
before the justiciary, where, if they were
silent, they were asked if they would quit the,
testimony they had fi^iven yesterday. Both of -
tbem were indicted for heacing at tield con veil*
tides, harbouring Messrs. Cargil, Cameroi^.
Oougbw, and Welsh, ibr owning Ruglend «ed
Sampihar declaratiouii, Queettsferry cevenaoti'
and tteaeoiiahle opinions. For prohation^*
their ooofesatoD before the oouncil is adduced*
Uobel AlisoQ, being interrogate on sererml
heads bdiM-e the teaise^ ioaweccd, she wtt
)wneo, to wu.ner ering aioeia roif
When interrogate aa lo Sanqtihar
Q, and the Queensferry pftper, ibt(
ling about them, bet beiog rteed to her.
»
855] STATE TRIALS, 3.1 Charles II* l68l.— TrW ^fCurgiH mmi oiktn, [6
erawrs. and pfivileii|^ of \m bj^nes crown, triiifoti for the sabjecte ^flliit re^laip^ «r i
' ' ^-^^ Im? the
lie's tir^t
not ohit^ed to iiusvf er, lor she did not look
Mm ll»em as judgts, ilediued ther uith<i-
y, mid itie l«in>f'H, by wlmta thry sat there,
tc'^auie they cany the sword a«fnin»st the Loni
In thdr iiiterrvi^toi its tlicy t^umv, and ^^
Bd ftc^t like ]teT>i»Q2i thit-)iiia<v' n(cer blurjdf who
n|r<s he- shaU be ifnillv. Shedwiicd coutcTse
tv " ' 'V ' ■ , ile*s
r tiori^
Slid I'iMUi ::i lOUMi. i^linni siK»K<' <il lilM J> "^'^^'t
. Aoii Qut^iiKtcsTV covtnnnt^ i^heu reud to her,
befati^L', she yajil, she s>f^v mifiiiMji^ in them
iijrjttinsi the Iid»le, and refused to si*»"ii. Marian
lim vey* befort the justiciary, rt»*ii!i tli*^ t'ouilh
liriuMfor the Uuee«i!*terry paiier, di^wiis the
kiritr's atitboiity, abides by the Saiiqidiur De-
ctiintt.:oii, s«y8« it was bwtul to kill llie arch-
bishop ol St, Andrews, when the Lord raised
up iri!^trn(iunts for that effect ^ adding, he was
as inistTiiljle otul penured a wretch as ever be-
trayetl tlie church ; blesses God she heanl ser-
mons in the fieltls, and approTcs of Mr, Car-
ps!' ' 11. She refuse* to sig^
V 'I protests ihey ha^i no-
tl it, itr , i\ti.\T^\\ hut her opintun,
»i Christ nnif his ju rw^oiiifd tniUii.
.i. ., ihi? aiuijce was sworn^ U wa:* <>b-
aerteil that some of them trenib!fd nnd w*>tjKJ
not a VI ear, thin proiM^as a^^uini^^t two womeu
beint; c%ery way extraorffinary : howercr they
(pot as many as served their purpoKP. The
two c«tnfpssions, as wHt by the cleik, were
read to thf iivpifut, iinil, ina discourse lu thetti,
thetrli --iivated every pa rticniai% and
eiii)ea\ ovo ihcm »?iiihy o* treason.
Nome fit til t)*-*<ii^t» II ■ ' was no fact
proven a^faiiiHt them, ifj nfit*<i»ned
their c*iofe!>&ioi»3. Tin- ip^v/rjie arnxfcreff,
what they tmd siiiJ was trt^ison, ami chargjed
thejn to .vet Recording to law, othciuise he
kirrw what to do. Tne n«si/,c fioil ihcm hoth
gt\ihy of treason by Iheirown contession, *rhe
firtinouurini^ liieir 5oam is dtlaycii till Januury
21, wlicu tlK-y iifL" both sentenced to be bunged
in tl*e OnisjK-innrkct npon ttie *26lh instant.
*< I ttmt the cOnueil allow l^rea^b^^temn mt-
n(»tcn« to cimvei-*te with these two women ;
ti'int to rub oft* the odiuiik
1 licit <hd not wi tilt r.fler
t, ttiev could have no
bfnk^ftl to tite wonun
- ronvcniJition, the nii-
■ u. V l*> thcni bccaufiii s*-'nt
hy the caunnL anil icusonins^ could have but
vt»ry little inrlnent-e in thrir circumstances, and
lj|)ini siilijtTiN ftlktve lUeircapaeity.
*' Thf-se two young- women were executed
U|Mn the 'idth, acc'»riliui( to their sentf^ncc.
The f -loud of \\ iuie^si?H narrates a passage,
ithich, if it be YOuc)*tjiJ^ givts an odd idesi of
Uabop I'literson, and i« not diiBgreeabJe to the
opiitton n«t a lew had of hhn at this tune, in a
hut thi«
wns only
(I
ot
th'
r^
\^ '
llii^ii. . n
Tt-H 1,IIJ.|
»■
Dumber of tbein, more or lette, 'aym
ip-ound or }>i ete)ci whatnoTeri f» f7ae, or f
tiuae in amies, to tnake (kcttceor urare, or i
matt of a H^htand profane irmrwr. Jii-l fi!k?i
they were g^«'inij out to ih'
probably in the laigh c«»i>
maletattors used ti) flti to <
bt^hop came in and «nid to 1S\
yon wotild ne%er hear a en rate, tiu^
hear one prny hrfore you die, niuJ •
who " ' /pray* TT
thn>, ti|d not rttt
said tu lilt' uiHC'j^ i M V ' ■
Psftim, which they •'
bishop "ii ourute, empl-j , ,
vex tnese poor people, 1
were executed with some i
women guilty of mnrdcring ti
dreoi and other vilhiniev, u I :
grievouB to the«e two. One oi
ministers of the town » who w^
others on theacafFold, r^ileil hittuU
sufferers, and assured them ttiey '*'
msd to danmaiion » w hile be| w i <
dente i>f penitence, waa aeti'
wicked wretches straififht to Hr
Isobel .4li^iun and !ktdrtau H^j
conirnovf d, Init sany^ iMime ^uiLt-M.-
the ^icatftdd, »nd proyed^ and died with i
com po y ur e and joy .
** In SXvitvh I mcH with a new pme^aa i
some nicJio of ti»e [)eop1e who adhfprd to Mf,
Cnrgl!. I need only ijife a lew hints fnm
the records, the coui^e now with all of then
being' much the niime, Tpon the 2nd of
March, John Mutray of llorrf»tounne«st, «
iudiotcd of ireasoQ in common form« Tlio id*
vocatc now ^!Te» himself nO ftirthar Irtiab^
than to adduce the confessions v ' ' '
pcrJionsi xvh* n examin» tl bclore
presence of the ju.^ri ' "
fhey are e\;iniined »!i,
the confrfi^ions are *...> ,.-,. .^. ,,,,_ .tj,^.,.,^
who brinjjf them in t^tiiUy by ih*ir own coB*
fr slnn lod so tley tire stnieucrd, In John
< ase, he* had confest he wa* al tW
• I' at Torwood with arms; and in*
deed Mr Carj^d's followers beinij djiily huotrd
for, were obht»ed to carry armj* wiih \hafi
wherever they went, for their own
When be is mterm^alef if be owns ...
authority, he aDSWiiis, he owns nil tUi^i i
God, anil to be ofinetl, und adih, that
the king ohfterved the co\<
God, but Jsincc be has hi
not what to SAV. As to i1
iler, be ^ays, it they wcff
cute jud;^niieut on him, Si
tlieui i;Mr their action:^. He
ht9 confei>-sI*»n, htit ri^f*u<;f"s to
having" a pnni*
vennntand Sani, , i
consider on, aftt-i -x
♦* The same d:jy < i
in Gorgonuucki \a inditi4jd o^ abovo^ hii i
STATE TRIALS, 33 Charles H, ififil — /or Trtaion.
\m
^W in!
or letfaes ivith foraig^ne pnDf.e«, or
eft, or bmofi^t tliemselves, uitlir>iit bis
ie^s spectalT author it ic and approbation »
interpKieil ll»erelo ; and aH his majestie**
99imiim Wore the council is atlduced* where he
•ckliowlal^^es he wjus in ajrtna at Bothwel*
brid^, and thinks he may la^rfully i-ine in
aims agvifist the kinj^for ihr CorenuRt; de-
^U^d he cannot vtrite Before the rentofing
^^■Ke assize, the advocate tlir<?attrns them (n«
^■hedoe^s uow) with an asiize of eiTer. They
' Mngf both in g^niity by their own confession \
1 the court sentences both to \m han^d in
Grass- market ujwn the 11th instant.
Upon the8ih oFMarcli, Hillitim Goagar
vfitoiinneas, and Robert Sangster a
llilve' manv are indicted, afl above,
he justiciary. Tlie probation is their
Tire finrt ucknowledp^^s he was ut
vel*hrtilge^ and refuseii to take the bund ;
I he was at Tor- wood, and owns Mr. Car-
] excommunir^tion, and says, he lhii»ks it
1 to kill the king'^ servaiits, iieciitise tiiey
eeoerniei) to Christ ; owns the Sanqnluir and
iilferry p«iper» ; and refuses to siirn.
Sangsler owui Uotliwel risini?, and
b wood excom mil nicar ion, as lawful, disowns
*■'« authority, aiiys, it is lawful to kill
d the judire$, in as far as they are
nut God, and adds, he thinks they are
Tat enemies. He refuses to si^n. The
' l>rinjr in both guilty, and Ibcy ar« sen-
1 10 be hauled at the gi'iiss' market, tlie
1 instixjit.
►lin Murray, June 9, is recommendeil by
unci! lc» ifjc kind's demeiicy, a*! In^uig
' mistetl than malicious. The* other ihreiJ
' executed. William Gou^ar had a short
iii hi-H bible, wliirh he designed to have
tefed as his speech to the ftpeitat^irs ;
Titbt;that which is printtil, and goes
' hiH namCf J know not ; for \ find it re-
1 at \\\\s time, that Gib and hi* foHowers,
put some well-meaning prisontrs to
} they would not othei'wlse have sfone
k]porrnptcd anil mude aJditioiL>i to papers
W^wi under their name. This paper, it
"til mUv the hand«i ofsonie of the sol-
he bidder- r>ot, and t^'oriigt'd tticm, and
hem treat him very han*hly. They
I hw hands very strait Ijcforc he' went op
I tadder, and when gone up» and bei;innitiqf
pe.tk, the dnimn were rumLd, and he v\as
I otr the ladder, without time ko much as
l^pmy: such was their barbarity upon the
kM pttfTucatioD,
** Atvotber proces? is intcnted beforelh« jua-
tieinry, July 11, acfain^t three coniktry people
ID FiK% Adam Philip, Ijiwrence Hay a wea-
ver, and Andrew Pitttl)oi!h land -labourer.
t\ktf^ was no act o4^ rebellion, nor field-con-
^ntides atlcdged against them. These three
Ind jojfied in a society for prayer and con-
tlteooe in Fife, w hen tney had not the gospel
mtebed lo them by any they could hear.
Tbeir fockly^ in /uii« fait, had agreed to^
lie<lg« are discharged npon any pretext what*
»oe*er, io attempt i^ny of these things, under
the pain of treason, and be the scTinlh act of the
first seaaion of hia majestie'a first pari lament ;
and signed a paper, which they called A Testi-
mony aj^ainsi the Evils of the Times: whether
thev piiblishrHl it, or how it came into the handi
oftae manap^ers, 1 hare no account, but 1 find
them indicted for publishing nn in famous
paper, the 1 llh of June list, called by them the
sixth month, disowning the king and all the
tninisters of this church* excepting Mr. Donald
Cargil. The paper whs prinluced, and they
acknowledjjcd they had sicrned it. They are
found guilty, and sentenced to be htini^cd at
the Grass- market, apon the 13lh instant, and
their heads to be severed from their boily, and
affixed to the Ttdhvoih t»f Cowpar. The last
two of them ai*e named in the Clo'id of Wit*
nesfes, and their speech or testimony act
down. I know no further about them. The
paper, by the citations from it in their process,
»H very wild, and scorns to smell of Gib aod
\m delUMnns.
•* I come now to gfivc some account of the
trial of Mr. Donald Car^il, and four others
With him, who were executed the 2 7 lb of Jufy,
tlic day before the mcetini|: of tmrliamcnt, this
year* It hath been notirctl in lli«? fornaer part
of tills history , that it was not unusual to grace
that solemnity with the excctUion of some of
thtr pei'secntcd party*
*^ We have alrraifv licard much of Mr Car^il,
and I shall not otfeV here any accotmt of this
ijood man, and successful preacher of the
^n«pel. It is but a hint ur two at matters of
Sict concemin:^ him that I can ^vp, leavtn;^
therimlication of several sinj^nlar and pecufiar
stepK he took, towards the end of his niini^try,
to sueh w ho approve all that he did. Th«re
were not a few remarkable steps ot provi(V>noc
in his call unto^ and Kettlement in the pari&h of
the barony of Gfasgxiw, some time before the
restoration, which l»eiiic' out of my road here,
J paas with a regret, that none have been at
pains to collect and publish a well attested ac-
count of remarkable providences towards mi-
nistcra and Christians in the Church of Scot-
land, since our retbrraation from Popery,
Many likewise were bis wondcriul preserva-
tions in lili wandering?' and suffering's, since
the turning out of the body of Pres>b)tenan
ministers, and under the particular spite and
malice es:erci«ed a^^ainst him ; of which, with
those of othen»in this period, had I goo<l attes-
tationa, I would reckon a collection of tbem
would be a very agreeable and useful appen«
dage to this work.
1 »* Mr. CargiPs sufTerings are what 1 am
I now concerned in. We have almdy heard,
I be was, for his freedom in his sermons, alter
J the kiojr'^ restoration, aud refusing' to aolem-
I nize the anniversary day appointed by parlia^
tnent, particularly the object of the persecntors
rage, and continued under many and tnex*
prcatibte di£cultie» till ailer Bothw^. The
FDiN'nuROH, July 15, 1681.
'* Mr. Donald Cai^l, being interroj^tc if ha
OH OS tlie Lilly's authority, and the kiiig ms hit
lawful priuce^aaswors, as the uM^piitraftes au«
of his majertie's first pariiaant; k is
statutaad ordained, that if aay fiansn or per*
sons, shall herefter phUI, oaninf e, or mtsady
death, or desknictioD, or any vatraiat upon hii
tliority is now established by the aot of ptr-
liameat aocnt supremacy, and expfauiatoiy act,
denies the same. Ykmg again iDlerrijgali^
if he owns the k\u% as his lawful priaoa, ircssv
no, he refuses to give any other answer tbaaai
aforesaid ; confesses, that in Oolober JOSO^ hs
preached in the fields in Torwood.
tcrrogate, if he excoouinicated the Jong I
answered. That being merely a 4
an ecclesiastical matter, he oaasot answer il
before the council, being a civil judic^lHy;
and thst hewasoontent privately to give si 8^
count of all the reasons of all his <
STATE TRIALS^ S3 CuAELttlLlfiSi^TiWo/Cb^Mtfalikrf, [MB
the late Sokmne League and Covenant, or any
other covenant, or publict joath, is diachairged,
tu be taken by any of his muestie's snigects,
upon ther highest perriU, and be the 2d act, Sd
measures he took afler that, at Queenaferry
and TorvvooJ, have been narrated, and it is
evident the government via^ particularly im-
bitterad against him by these steps. No sooner
were any notices gut uf his beiag in a (dace,
but presently all tlie soldiers round were in
arms, and searched all tlie country about for
him. Upon the 5th of 3Iay this year, he kept
a tast m the fields, near Lowdon-bill : the scu-
diers at Glasgow getting notice of this, inune-
diately seizcu all the horses ia town, and about
it, and mounted in quest of him ; but he got
off at this time : yea, such was their haste
and fury, that one of them who happened to
lie behind the rest, and furiously riding down
tlie street called theStockwell, in tlic middle of
tlie day, rode over a cliild, and killed her in
the spot.
" llowevrr, Mr. Cargil c.4ca])€d them not
much longer. The circumstunces or place of
his seizing 1 have not ; but I find, May 1,5,
next year, Jainei Irviu of Uouaihaw pctltioxis
the council, for the reward iiruniised in their
provlaniution, fur hik taking Mr. Cai^'^ ^"*^ i*
recommended tn the ti-easurv : and some tune,
July this year, Mr. C.'ars^iiwas broucrht into
Gla»i;ow by a party of Mildiers, in gn*at tri-
umph, ami put iu the guard -house there.
Multitudrs cninc iu to ga/.o upon him, and
among others, one John Nishet, an hater of
godlinc-^ and the uuL} nlitrious, a besotted
drunkard, and mocker at piety, and at present
the airh-liisiiup'^ factor : 'fhis profli|^te
ivrilch addressed himself to Mr. Cargil in a
way of mocking, and said, Mr. Donald, will
you give us one word more? alludiug to an
expression Mr. Carcfil "i^ in liis i^athetical
serious way of preaching. Mr. Cargil looked
€»ri him a'llttle \^ith regret and sorrow, and
theu aildressed him thus. Mock not, lest
>our banils be made btrong ; the day is com-
ing when you shall not havo one word to
kiiy though you would. This came very
shurily Ui pass ; not many days ailcr, the
l.ord was piouNod to l:i y his hand upon that ill
man : at Gbs;;ovv where h(' lived, he fell
siiildiuly ill, and tor thive days bis tongue
swclUd*; and ihou^fh he ^«.(;ine€[ vi>ry earnest
tO'*|>rak, vrt he could not command one word,
and ilitMl in great uinneut, ami seeming ter-
ror. Miome yet alive know the trutli of this
pas8S|j;e.
" From Glasgow, Mr. C'argil was carried in
to Kdiiiburt;Ii, uhcrf, Jidy 15, 1 find him ex-
amined before the council, and his (/onfcs&ion
theu, in aiuiwer to his Interrogatories, 1 ^t
down frutn the recui dn.
taons that ever he maile or pronouaoed ; hm%
pressed to a direct answer, refiMes to mb
any further answer. Being interrogate, wba
he saw any of those who killed the aich-
bishop, or if he khew any thing of the is-
tentiou of it before it was done, dedares he kosir
nothing of the intention before it was daai ;
c(>nfi>sses lie knew Balfour, Ilendersea^ ssd
Hussel, but thinks he did not see Bdftar
these two years, but did see the other two witb-
in these twelve months, or tberby, to the tart
of his knowledge. The copy of the scraoi
alledged to Iwve been by him preached st Tor-
wood, being produced, aad he asked if thst
was tlie copy thereof, desires a time lo i
dcr thereof before he answer. Being ini
gate, if he thinks the rising at Bothwel-bri4gl
was a rebellion against the king and his sn-
thority, declares he owns dclensiie anns ii
case of necessity, and thinks these who roie SI
Dothwel were not rebells, and thinks they
were oppressed, and rose in their own ddsaoiL
Being uiterrogate, if he was with those vbi
were in arras at Airs- moss, refuses to answv,
and <lc6ires it may be made out against \m*
The same answer as to Bothwel-Mfpii
Being inicn'ogate, if he was at the
the pa|M.T at Sanquhar, denies he was. Bsisf
interrogate, if he had any hami in drawiog ii
that paper, refuses to give answer
but (leciares he did not see it till aHer it WM
proclaimed. Being iuterrogate anent ibrt
Jiaper, if he owned the prino4)les therein, la-
iises to answer, and dcRires a time to coasiiff
thereof, nut being uuu illing, upon time givft
him, to declare his judgment thereof: fiw
tlie same answer as to the paper calleil Csml^
Covenant, or the Fanaticks Covenant, wM
read to him. lieiug internra^, if, whsn hi
preached at Torw^, his tocture was upn
Ezek. xxi. 25, 26, 37. confiossca it w»
Being interrogate where his text to bit miM
was, declares he remembers not Being ii^
terrogate, if he thinks the killuaif of iha aicb-
bishop ol'St. Andrews was murder, dcd««h»
cannot give his sense thereof; kait Ibal At
scripture says. That the Lord giving a caD H
a private man to kill, he mightda itiawMI^ I
inJaelaiMm'
9rAT£ TRIALS, 33CltiiliLRill. l6SI.— >r
of this remtme, or any c^iert, km nwje^^'n ifm^
ffiiwoiw, OP I* iD»|ieiNl liwn from th*^ es^rcbt
of biff rck)/all gQ<vlmiiieiil, or to leviif witrc, or
take ap iinocsagMil bis majestie, ar aoj eoni*
iwyill |i?ffoii, 4tf amy MMii^lM iiftfiiii
' mA^ m dvAtmcikiii, «»r *.
I kiltglio umtto of tli« ini)*rntiri cnmii
iftift thinks Ibtt Iniir, l;iy \m MVmg
tiwuaim^ hath lo«t Sk civil rigfbt us
Jmt* hft thinks thin att eccl«siiiitietil
id ctu*md ftii4^Mr«r bri>e,^t»itt that he is
] ta o^y Utr kin^s goyeminent^ as
' ||« flic Mt'uf iuttrismacv, .
wiMfe b« w;m Aiv m^lit
■Hwr h« WIS At QoeciMireiT^f de^
btvniajiow remenher; hutseerngp
^Mlom oihert h« tbinkft he 19 not
99r, B«uif intcrrogute, when
i m f iir, omJkimm h^ was iMnt Pry^hj
lA tixBty dijt or month y Em! pTe^be<l
IMti|p hiltfniftte, if ajiy
JvhiL Hcmiefsoii, a Aui about
^»vi ^f an^ Boitt^ tntairogmle, wheil
oifiliHHi^hiivar CmgniAd^, declaim
ool there ihise ehnreo muntbs, and de*
9 mwm in Ao^us Ibtst) thrra or four
C*. JMAmAw, 1, P. D.
Bo oroo ^9^^ ealM helbrr the council,
I9« asidhs Iniofugilorteo and Answers
f Ia council bi4ii|^ [fiU?TTo^te , if b« oiroeii
m al Torwood, iti irbich the king,
aficomiminkalcil, he could not an-
if, hut Mbre an ecchisiiisiiciJ eoui-t,
D i«ljiilHticat act. Bt^ing^ asked , ff
^omioliio ctOMDioimicarion o4 hh majesty
ti^llM^ name f^Db«rt«s Stuart, tnd aaa
fiwiumeit to aitswen Beini^ interropfc,
priodpl«i b tbr Qu<?mBt<*fTy
he ba.^ not y«t bud Ku^^tent
it, Beinsf lutcrrogote, if be
* nrioeifilM in tlie paper called tbc
roeciaratioif, h«r ivdl noi fmt
I ho did not ace it l>eri>tv it -h-
■tSlh «fti«le of tbr \^. v
b<e f^fosfs to rti; ,'■■';':
' hK^rrogare, wbo wh^ tbc avuhw
who wrote it, refusct to aa-
^ if bot very btilf$ tccount I can give of
*(>eir Mpccehetf af»d «oo»e other
ipwbHjilicd in tt»e Clond of
Iftr. CarKit botl a drsi^ti to hnrc
bM Im a )ar^.' p^
^ bi |«fMi^|ilv« nod ;
iitte |Vt of it ; hut tb^^y Wlic all buit'^ncil
^Hmrttj^ «*oncr tb?iu any body alniosi nM
ti^B0M|f; fiofi the iii girt attrr h» MDteni?e»
ii^ ^^^KWi ^Mid all bit iiapen fldjted, and pen
^itk dniM him- Howercr umtc way or
t4w h« ipoi wrowt to writt% tiad si|rn tbi^
^Wl paper f bjve insrrtfvf {>^*p ti'il), F
* no rt4kctouti9 ou il» the jcaiJiT ^^ill
m ia» hi* aloHicts tnncb irmn [oibbc
%l|iiln» iMi fltvmm ri||«n«ralaon atui the dc-
erciao of ffodUneoa ; and wh«n he cornet to
stale hta tmowniog the kinff, as be bad dor»e
in ihia oxaiEdnalioo, so now he puts it on thia
bottom y the magistracy I have rej«?eted, is that
foumled on the sopit^tnacy, and that becauso
itifeiied with CImstV now^r. When be waa
Npoo the icafibM, he uitcoursed inuoh to Iho
same purpose, with what is in the ibr«$aid
paper, lie naa frequently internipced by
beating of the drums. He declared his tuU as-
stifoooeof foith« as to his own overlusting bap-
pineas^ bis fears of a stroke coming upon Scot- '
kiMt, bis cheerfulness lu sufieringf and ctya,
be is ffoirig np the ladder with tcss tear and
pertiirlmtion, than ever be entered the pulptt to
preach* He forgave all wrongs done to hiin,
and died in the I^rd with a great deal of sweet-
ness and composure. These hints were taken
from his mouth, and printed shortly after hif
death ; but the confusion pt'ttie »obiiera was so
great, tlial naudi was lost. In short, he was a
person of very deep and sharp exercise in bi|
youth f and had n very extraordinary outgato
froin it ; tho account of both is too large to
be insert here. Ailerwards he lived a most
pious and reli^ons life, and was a zealous
and useful minister, and of an easy sweet na-
tin-al leint>er. And I am of opuuon, the sin*
gular steps be took towards tbc ond of bis
€our^« were as mucli to be attribnted unto
bia riffard to the sentimenlB of others, for
whomue had a value, as to bio own iiidifM.
tionsL
<' Ader Mr. Catrgi), Mr. Walter 8mitb ww
next executed ; hestal^ bii$dtsownia^of tbo
king's authority unun the ^tatna foot with M? .
Caxgil. At bia lost he spoke, without that
Heat, ami ibese beigbts* which, in some casra,
he bad discovered m the ibroier part of hi*
life. I pon tlie acaflold he was freqnenthr m-
lerrupted, and there he repealed OMieb m Ibo
|.:i|>-rhr !rt\ in ^Titing. He disclaimed the
1 * . e and tyranny ofautboritT*
inA ^uvc \ti\ .ivlid and plensant advices to Ike
spectators, as to their practice, and makioff
Ibeir calling and election sure ; and as in hit
testimony, so now he presses them to bewam
of a spirit of bitterness, perenptortnees, and
iptoront T^eal; and refers, fbr his judgnient
in mnn y things be wouti! not uow mp into, to
vvuupbj^ y time a^, eo-
.u^stcpiol S:c, and caii-
tiii^::^ .loiu^st dii'isioti, in adhering to boq^
(yoiuis, uoent wbicb^ bebinisdf, ilseetus. ooee
lort piiotested. ,
*^ mr, Janrca Botg was next dtsnatobed. \
harenotbmr *' ^' *'"nT him, m»n what ts
cofttftiued ii, 10 his broiber» the
it (i3»et p. omr.j Both he and jHr* iMxttt died
STATE TRIALS, 33 Charles II. i6si.— Trw/ oj OrrgiU i
miamoQ&t Uy bim, ar, shall iAtyseaay siratigers |
to iDVAik any ofhU iuaj<;stie's doniinianst and
bMIUv wreittiag, pnnting^, or other nialitioiis
%nd ad wised sp^iking, tixpresse or declaire
such ilier treasoutkble tut^ntionii, ^saty tiuch
person or ptfrsons hein^f upou sutficienl pn>t»a-
lioti, ie^aUie convict thereof, siiall be depuietl,
declaired, aDd ailjiidj^ed traitors, and shall siif-
r ibrlUuUurc of Ijff, hoDoar, laii»k, and ^j<hIs,
\ ill thi' cases ot Ireasuti, atid be the 129 ace
iiit king Jamei; t) it is statut and or-
ftt the king'ii (iuije!»tie, bi^ aires and
b€ tbeiii«sekes and tber councill,
are^ and in tyme to comf, &ha11 be judg^ coni>
[leteut to all persons, his hig-hnes (subjects, of
whais'>mever tstale, ile^e»\ or condihon they
be off, spiriutaH or ttjuiporuU, m all matters
wherein they^ or any of tbrm shall be appre-
Ueudit, suminoaed, or char^j^ed to answer to such
thiii^ 89 shall be f'nquyi't^d at ibem, be our lio-
verajj^ne lord, and bia councill, and that none of
them wbilk shall happen tc» bea|)prehendtt, sum-
moned, or eliairged, m the rHect fiH'waid^ pre-
tume or take upon hand to dtcline ibQ. jud^«
mcnl of bia bighncs, his airs, or succestnrs, or
ther couucill in the premises, under the pane
•f treaM^o ; Ncj^crthelesse it h% of veritie, that
§*e the said Mr. Donald CargdU Mr* Walter
Dttbi and Mr James fioij^f shacking off all
under much comtort, joy. and full »«5urancc,
and the reader \f ill rifumik a cousiderabtc dtf-
feieocc Ijetvvixt the paperg they left behind
tbeiu, and timny uthei^ un^Tarlly publivhed m
the book 1 last cited.'*
In another place, after callings the Torwmw)
Etconiiniinication (which, it (i**fm»t he did
not €hu%i€ to insert in hi si ivork) * ua]>recc-
dcutcd* and * phiinly disa^reealde to the rules
of thiii cliurch amf our knovvu presbyterian
priaciple^t* and i^iyiut; Ht was approren by
Aon^e that I know ol but his own followers
who now set up ibemselve* in distinction from
the rest of ilie nretdbyt^iiaos in Scotland, and
refused to parttuic in ordinancef dispensed by
any presby lerian minis^iter ;' he adds :
» Thiss step of Mr. Cargil's h«ith been matter
r much reproach and I udJbry to the enemies
(f'the church of Scotland, whereas they do Init
^pofie themi?dvefi in chHrgint; ii upon other
prejiby teriacs, since etery body knew Mr, Car-
Jil wafi perfectly alone in ibis matter. How-
everf 1 cannot but remark here, that the jeer-
lig« iind scoffs upon this step^ came very auk*
rardly from the moutbb and (lens Qi' the as-
sertrrif of the hierarchy and eanous^ and ad-
ro€!ates for Uie practices of the cburch of Eng-
laud.
" Both our Scots canons 1636, and the Enf -
liab canons begin with Anathemas against all
*rho do any thiufir against the govei-nment by
archbiithops and bishops, &c. by which » not
only the parliaments of both k*irigdoms, but
ttten ibeir blessed martyr king Charles him-
self, €4- pottJuctOi comes in under their iiotemo
encommunioatioD. And m irdaad aod ols«-
fear of Uo<), conacicnce Mid «Mi9e sT dn^t*
lea^^eance, and Joyaltie to your «u>ti-nkl*rtir wit
Qaltve prince, ii|»on chr an;
sacred person and mantifiaai^
raigne authoritic and princlic i
Juyetoes, stahiliiie and bafipieoe^ oi
oe depend, bave moat |»cHlclioiiailM
sonablie presumed to commit, mid -
the crymes al»ove luetitionod, i ^
and each of you, and ttie hl«n
legious murderers of the lati .,f . . i
Andrews did p»e unto tli- i\ i ' i
and did f ■ -• -Mip it>VMt' '
Robert H mother to t
toun, and ,iy. /^ rSi^^
tious per>
upwards ^
May* 16? 9, a day app<
than ksgi ling for his nu\y-
the ix>yall government of this ^
to tlie' burgh of Ruihc r<jlen, -cl
and treasooablie <dter reading act» of y Q
coyninfiT, shacking off your alle
tnajcatie, ye roost trcaaotuiblie aod
burnt sef^eral acta of parliament
maiesties prerogatives, and efitai
^vernment of the churchy drowned <ru»<-
tyres aetton in comn>emoratioii of ^'^'^*
and tbei^fier continueing ami abydi
where, they did actually excommur
worthy ministers^ and others emin<
gion, [earning atid usefulness ; to s ^
of the slur Ihia oasis upon nil tl
chorchcs. Neither shall I add
these pccTples commoi) prosti
awful anil tremendous sent-
which ndatc to the smallest tr
ters, while in the mean tim*" lue kr.
communication, th<i riid our Lotfl
about the fioly mystery of bis
ftclly neglcctcil, and j»eojde ^_
forced to particinatc, as a ii^i .
mission to civil places. I know liv
lous prostitutions of hol^' thiocr^. ^
to the better sort in England a
the rejection unon them, and i
in contiiiuitig^ these abusea, ought, i
to silence the high Aiers, and ^
from their invectives upon presliytemnM
this matter I am now upon.
*« These observes are not made to
Mr. Cargirs practic«»f hut, if poiiaibie, iti tiioe
coming to prevent railmir "ri"^ * thii ebvd
upon this score, who arc « way ns*
oerned in ii: and it was {h-^..^u,,.^<1 uponpt^
sons of a quite differeut character and ptaotfcc*
from such, whom tlie {ieraori» tKt v jitlmirt
have anatltt<natized. Alter aM
that most of the persons eiit:
tills time, had somewhat remarkable in Utaf
exit, though tliat may be far better I '
the door of their own lucae Htcs i
tliaii of this sentence. This atep d»^ \^
exasperate the government ag^aiful tllej
cuted patiy, yea, though very
agaiost all px'sbytcnaaa/'
^ YTATK TRiAtSi 05 CHAfttcs If. iSBl^or Tr^eam*
liiAitdi and immg
tivusoiiiJ»1ti till-
I fntbiii tki: tuup of Uloagow, b% mIiuw
I vol \mm tmmnt^A Md it»bi»u
I Urn mmiMT m ' t - t*^j<«ik« ut your
t BiintlMr of ten i^ i ^ i i ^ iiioasanJ, yuu
b, itilkfif mm! «ear€b lor im^\ urines.
r, Mt, Slid otlfter uiMniiueiits of wsrtf,
I tk« tftt^rcMt oiLauirrk, Aire^ Rot»f«t*%vt\
F«rlJi« auil oUj4^ thjreii uaiuTi this
J roliM And platotlenMi Uk mnjeiliii
•iMi gWMl ftu^eet»« and lre«iMNittl»Ke
kOli ttoQ, Mid tlMJ isut»plk\ slieltci',
Mi. Jdui WeUi, Air, 8aj]iu«l
iiMI «ii other Aoriauli tiid ^i^ckired rvln^lls
■i iriikity fur Uic n^bcUioD ICfOO^ with the
McralcfrifHts murdi^fvers of tli« late
» ol' 8i« Aru)re\vbT uiH ye aiut your
^ bctemluiviiig luarcUeJto HaruKtouu^'you
iMt Uie fcwklff tipoii y^Mi to issue pro-
i md prat dickraiioiui bearing the
rgrouod* cd' y«nr nsbelliofi^ 91S dtd
1 giv0 jt««r r«beliioi]i Msa«uil«« tlie
!•£ ttmr Army J fofUMing und fr»tti^ingr
I Ml tJt}e|i« com puny* «ad vcgiroeiirs,
rctlofteibt of re^imenrs^ r^i)>lattie« of
com mn riders ot *i-oo}»s nnd olljer
f ItoUcrt
'* miir-
rtiiciiuiii^
«l d4 aib» te Jitldiiea au
.;«vf ti.
tM^ilA art tu-
fittii ilid muM, u i
1 da.',
at rvuii^
f«^UO, III I
m your iri::k.HnLi.>
ty# and ihe dec(\
^% and otiieTH your
u and
liurcli.
ie uiUiii the
•tit, that 5^
'tig urn-
a
..r lU
iatuf tiHta,
and suardmog accotiipficest did drairc
coil try ve, detise^ tbnue, and dlsperiM^ two ii»oift
aiidat sotue occa^iuin used to atlend ibeaar-
moiis of the lodul^ad niioislerv^ ag be liad wp*
portuuity* JUL length it |ilea»ed the Loixl to
fitrlitie hiiJitogo oat to the Jaeld-meetitiga ;
* when llw curate* unikriAoad, t^ ati (
iibn, partly hv tlatt^rke, partly by io#-
' * ou, aiMJ at hnif^, by mom dtraol
s to catiM! hho forbaar atfmriiiig
ButaocU yf^ the pa««rral
V 0] ki^ij^ of the Lot a by hia
A|)irii upon inny^ that h« eotirdlv cieacrtrd tl|aie
j*rcltttic cuiato*. Laving: q:ot a Jirdy ^ikwrnwaf
of thi; im aad to^^nl of that ahoMiinaUe pne-
bcy . And ho sooner was hecol^btciaed ameat
tbeovil ofj>relacy» but beipAMa^ more tiar*
ro%^ ly to si^iuvh jiiio tlie ataie of thtiiga« tl^At ht
Tu%bt know what i«ashiKfNrO|»eraiidsieccaiafy
duty, tbt Lord was pleaml to diaeorer to hivt
the sinfulijcRs o\' tlio iiutut^eacis, a« fiowu^
from that 1' Llf»ii[>remacy, twuruoil by
the king j ^ _ zealously ttlfe<'ted for Ibis
honour of Chroii, wronged by that ErastiaQ
acknow lodgment of the raa§fi*itratc*a naurped
powur over the chiirdu be loured for an op-
portuuiry to eive a testimony againat it : and*
accordioglv, being iii the family of air WtMiasi
SiHit of llurd^^, who attended the iadolged
meetinj^a, he took opportunity (aotwithsiand-
in§^ cnany strong temptatiooti troni Satan 1o the
cofttrary) to w itness in hjs station iM^'ttinst the
indulgence : particularly, one 8ab£ith, ailer
he was called to attend the lady to the ehan^b,
he returueil fix>tn the entry, refusing to go that
day, and spent the day iu his chamber, %vhere
he met with much o* the Lord's priiijciict; <aa
be leKtified) and very evident diBooveriesof the
nature of these temptationa and augpestiooaef
Satan, whii'h had hke to hare prevailed willi
* 'rifore. And upon th« ^T > ' , . gtvtiitf a
I to the *i^\A uiv \\ t aud m-9
M...V, uhy hewent notti>cLuii ij ^wili theuit he
took ciccajjion to he ptiilu and rxprew, in toalj-
f\ iFK*- nir.Hi,^! tL, J-fiilues* of the indnlganoc,
'I -, ami original rise ami
■ ■ ■ i: flowed ; aod tlier&iipoii '
■'■4j; thai urrvice, beinpf no further accm-
lo til em, because of \m raithfulneaif »e
cjuui^to tlicaouth, and haun;; wet with the
Eei . Ml. Jcdio Welcli, he staid in hit canipaoy
a ronsiderable Itme : ivho Aiuhng him a man
*|tj:iJKied fa/ the minmiry^ pra»ra luion him to
rt'cdv. M'each« firli:. ' I'liaail
for^ii uponthUi ^ ho
huTUit;M< -^^ . iiindliepi
ol'thl? indiil ryiigiiait
\t r.x,.s.;:i ^^^.^ hair« tlitt
■flit ri^aidtir
;enii. who kacf
U4^ai th«Jt»ol in ptibJici he was ajrajd that h^
heing singuLir m it, con^rdt^rtni* hir youthf
aitd his bei'i ^^IMpSi
of the miiii ~ htf'Ot*^
S671 STATB TRIALS/3SCHAftLES II. l6Sl.—TnW^C«r^7/ Mi 0lkrt, [8GB
treasonable papcn, the one called the Fanatics newe Cnrenant, (which was tiken horn jroo.
trine the less useful amlwcif^hty to the people.
But the force of this objection lieinjir remored,
Tiy Mr. Welch's serious solicitations, he was"
prevailed with to accept a licence from sonne of
the outed ministers, who had not complied with
the indulgence, and were as yet preaching the
gospel in the fields, iind 'having preached
occasionally with Mr. Welch and others, in
Keveral places of the western shires, and find-
ing the people warmed and affected with his
doctrine, by the goo<l hand of God blessing the
Word ; he r.dvcntured sometimes, as the Lord
assisted him, to be exprt^ss and clear in de-
daring the sinfulness of the indulgence, and of
joining with the acceptors thereof ; whereupon
the ininisters who had licenced him to preach,
conceiving it prudence not to be so explicit
Anent that step of compliance, began to prose-
cute him with censure for his freedom in
prfachinqf against it ; and called three seveial
meetings upon that account, one at Dunscore
m Nithsdale, another at Dendough in Gal-
loway, and a third at Kdinburgli."
** Afler his return from Holland, where he
received ordination to the exercise of the mi-
nistry, he went to some of these outed mi-
nisters, inviting and pressinjy them much to
come out and preach in the fields, as they had
done befiire the overthrow at Bothweir; but
the persecution lieing then very hot against all
such as had not ucccptcti the indulgence and
indemnity, they lefusf cl to adventure upon
that hazanl. \\htTcfbre,not\\ithstandin(r such
sad discoursigfinents from the profcssei! friends,
and ^ lolent persecutiDn by the duelarcHl one-
niiesof the nrfbnnation, ho ndvi-ntuml upon
all hazard to nreai-li pufjiiciv in tiso l«elds, in
order to iliHilmrjre the dispeiisalion of tlie
gosjjcl, i\hieli ilu' html hadihinistcMl liim wiiji.
AndheconliniKNl so i\ohyr (ill Ik- stalcMl that
cause and testimony with his l.lood. Iltinjr,
after some valiant fi'sistance in his own ile-
fence, kille<l by a party of soK!i«rs uni'cr the
command of KarUhall/und his hoadant! \n\nU
cut off by one Robrrt Miirrav, wvm l'n:ii-l.t
and laid before th«! coiiuoil, Who onlorc*! rhtrin
to Ik- placed ujMin tlie Nethcrbow-porl of IMin-
burgh.*' *
Crookshank, ITist. v« I. 2, p. ^jh, sriv, :
'• Uhen Mr. Cainin.n i\as kllln!,* his brad
and hands \v<re cm (iffby Hubert ^lurrav, an^l
carried in to the mt-m-ir, uhu *iTt> d tlioni to
Oe setup on the Noihrrbenv-port in Ivljsd)iiri;h.
It is said that Karlshull ^twc a ytjinea for (his
piece of ser\iie. John l'ovvlir\s ln-ad was
•truck off, throncrh mistake, instead of :\Iichael
Cameron's. Uhfii Karl.sluill rrune to Edin-
burgh, he ordered the heads to be takm out of
the nag in which they were carrioil, putthrm
upon a halbert. and carried thorn t<t iW oonncil
Kobert Murray said, ** There is tho head am
Kobert Murray said, ** There is tho head and
bands that livinl praying and prc;iohin;rf and
died praying and fighting." 3Ir. Cameron's
tatherbelng in the Tolb«)Oth of Edinbnrgh, they
Miriefl them to him, ti> add to his turruw .and
inquired if he knew them. He took bis son's
head and hands, and ktased tbero, and said,
« I know them, they are my son's, mv dear
< son's. It is the Lord, good is the will of the
' Lord, who cannot wrong me nor mine, bat
* has made goodness and mercy to follow as
*all our days.' Mr. Cameron's head wu
fixed on the [lort, and his bands fay bis head,
with his fingers upward."
The attachment which was (eh for Richard
Cameron, by those who maintained his opi-
nions, and the high respect which they enter-
tained for his character, caused them to be dis-
tinguished by the appellation of" Cameroniam."
As to this, Mr. Laing, (4 Hist. p. 107), nji,
" A party now appeai-ed amon^ the Pta-
byterians, prepared to renounce their allegiioei
to the cn)wn. The oriq^n of this new Kct
must be ascribed to the rigours of government;
its extravagance, to the sufFiTings which tlw
intercominuned had endured. When pra-
scribed and driven from their abodes by gs-
vemment, they were pursued by tlie military
like beasts of prey ; and their fanatictsin «ii
daily exasperated'and confirmed bv their wf-
ferings and their despair. While tfiey roumi
or hirkrd throughout the c«>untry, heated tad
mutually iidlaming (*ach otlier, with reli|fioai
pliivnicy, their preachei-s bi'gan to coiwidff
their king as a tyrant, anil to separate frtim the
^at body of the IVesbyterians, who, acoord-
insr as they enjoyed his protection, or ackncnr*
lodged his authority, were involved in the ini-
cjuiiy or defo(*tion of the times. C'argill and
Caniemn, who hail esrnped fn»m Hotbwelli
rotnme«l from the rontinent to their vagnnt
Hook, which aot|uii-ed tVum the latter the naaw
of ramoronians; a designation still apprp-
priatod to a rolivfious se<»t, and to a regimcol
of tiie lino. A pasty a]>pfured in arms at San-
quhar, \ihore C'ai/ioroii i-ead and affixed t
fleclaration to the innrkot -cross ; that althoagfc
dosi'eiult 1.1 tWuii till* inoe of tlioir ancient kinpi
('Imi-hs Siiiru-t, by liis porjuiios in the breach
«»f his ornonantodNows, by his t^-rannical ga-
voi-HMiont, and by his usurpation over tbcv
citil and rolii: ions* liberties, hail dissiilvcd their
Hllogiano«', end t'orfcitod all right and tide to
the crouM. Thoy wvra surprised at AinlsmMi
in ihodishiot ofk.}k>. C':inioronand hiska-
thor, li'^htjiig backto ktt k, obtained by tbor
gallaiitry nnhonourablo doath. Jlaokstoo if
Hathillot, and fiOoon horsemen, wore takes
prisoners ; but ilie foot, a despicable band ef
forty peasants, n tin d into the morass (n0
tlio pursuit ot the guards. Carjiill alone COO-
tinned to ])reaoh in the lields. .\t a convea-
tide held in the Tor wood, he pronounced i
solemn excommunication aipinst their pene-
cntors, the dukes of Luiiderdale, Kothei, M«a«
miMith, York, and 1I10 king hinuself ; a sen-
tence ludicrous at present, hut productive thCA
of a deep and indelible impression on the whok
sect. \VhiIc we pity or deride their extrawa*
90Sf] STATE TRIALS, 33 Char
the kM Mr, 0on«1d Cai^iil, iit Q.ueensferrief
- • -- ■
Snee,' it m difficult to condemn them entirdy
disowoini^ a government under whi6h they
lifid enjoyed no reciprocal pnitection^ but by
iviiiefa they were utiifbrmly persecnted and
See i!«o, *' A short ^lemorial of ttxeSnffer-
icigs And GrieranceSf pnst and present, of the
Fk^esbytenans tu Hcotland, particularly i»f those
of them caUed by nick-name CtiiueronmDs.
Printed in ihe year 1690/*
f Wodrow* (voL i, p, 136) says it was taken
not fruDi Car^ill, but from Uall of Haugb-
htsad ; of w'bom he hud g-iven in the two pre-
l (Jflges u short account as (bUows :
Henry Uall oJ' Haug;h-he«d in the iiariath
"ckford in Teviotdale, upon whom lh« un-
ribed paper was fu und^ whk'h made alt
Doise^ was a friend and relation of the
of Koxbnrg^h. He Jiad been Tery reli-
usiy educated, and early bcg^an to sihcw his
1 for what he took to Le the strictest side,
in the time of the fnmeotable dilferences
? public refloU»tions, he was a violent
er^ and used to leave his own parish
bister and ordinarily heard Mr. John Lmn^-
sat Ancrum, wlio, as liutli been noticed,
\ very bealing- spirit, and tar from cu-
ngsuch practices.
Br the IiU'storatiou he was a strict non^
conformist to prelacy, wldch brougfht hi in
uuder many hardshijig, kq that he was obhg^ed
to leave his estate, aiid to retire from the storm
the North of Kou^land^ about the year
In the year lt>dr>, he was taken when
ntng' towards Penthmd, and with some
I imprisoned in Cesford castle, whence he
^<Hit by the favour of the earl of Roxburgh.
^^" ill again to Noithnmbcrland, and wis
ch uebveil there for his care, and the
he took to get maoY rude and ignorant
pp\e instructed, and Win prociiritig ministers
' ajid then to preach the Gospel to them.
In the year 1673, when colonel Strut hers
i violently pursuing alt Scotsmen in those
s, Haugh^bead w;is in that scutfie near
okoom, a village upon the Kngtish border,
w1»ere that gallant and religious gentleman,
bioraiu Ker of Hey hope, was killed. This
""ifed him to leave EnixUnd, and come down
iuoUand, where he was with Mr. Homiltou
>rnTnclog, and the wt-st country army at
tiwel. After which, being very ddi gently
•enrched for, he wef»t over to Holbud, but did
not stay there long, and ventured home again
Ihkye^r.
** InJUay, and the beginning of June thisyear
he was mostly in company with Mr. Donald
Citrgi), lurking as privately as they could,
«hout Borrowstounness and other places, upon
hoiU sides idHhe Firth of Forth. The curates
of Bnrrowstounness and iJaridden, very soon
■MUriJiii nut Mr. Cargil and his i^mtianion, and
pfwetHly tent information to Middleton, Go-
wwmt of BladneH, who wa« a Papist.
LEs II. ISBI .—for Treitim, [87(1
upon the third day of June 1680) and the other'
*• By the way here, I may repeat the re- "
mark I have once and again made, that a greats ^
part of the pei'secution and informations agfainsf i
suffering Presbyterians, came from the epis- ' '
copul clergy, who, upon all occasions, Uid'j
themselves out to cfet notice of the wanderers, |
and to hound out the soldiers upon them ; and' )
indeed these two are justly chargeable with'
the blood of this gr)od man. I Hnd in the oorm-f I
cil- registers a good proof a« to one of them J
"^JnneS, 1680, Mr. John Park Miniiiter of*
* Caridden, for his good service in delDting and-
' discovering ?Mr. Donatd t^are^l, :ind other va^ I
* grant preacher*, for whicnTie is threatened *.|
* in his life, is recommended to the Lords of*
* the Treasury, to gine htm some aUowanea
* tor this good service/ No doubt he hail-'
hifJ reward, and when these people wer^
rewarded for what they were so willing to en-
gage in, their diligence would l>e the greater ;
meanwhile their native virulence nee<l^ scares
any spun He was deposeil 1689, for gross ins-
m<iralities.
** The governor of Blackness immediately
took the scent given him, and having gotten
some notice where Mr. Cargil and Haugh-
head were, dealt subtilly enough. Upon Jun«
3 licordereiJ out a party of- soldiers, to march
at some diiitance, hv iwos and threes, care-
lessly, as if thej haii been upon no design ; at
length, by some of ihem, he found Mr. Curgil
and Mr. Hall had taken their horses, and wai
told the road where they were riding. Tht
Governor and a servant upon horseback, pre-
sently traced them out, and ke]>t at a little dis-
tance from them till they came to Queeuslerry,
where, after the servant had noticed tlie houM
where they alighted, his master sent him off in
all haste to call up his men to him, and put up
his horse in another house,
*' Within a vrry little, the governor cam^
into the liouie where they were, as a slrauffer^
and pretended a great deal of respect for Sir.
Cargil, and hrgged leaveto take a glass of win«
with them. \Vhen they were in friendly con-
versation together, and the soldiers not hke to
come up, the Governor wearied, and threw off
the ma:ik, and told them they were hi^ pri*
ioners ; and calhngthe house to assist him, U^
offered to lay hands upon them : There wa$
none in the nousc would assist hiin, but oum
Thomas George a waiter.
*' Haugh-head was a bold brisk niaUi und
struggled hard with the Governor, until Mr.
Cargil got off; and Iheu when he was going o^
himself, having gut clear of the Governor,
Thomas George struck him upon the heatl
with a carbine, and gave him his mortal
wound ; however, he got out, and hy this time
the women of the town got together at tha
gate, and conveyed him <mt of the town. Ho
walked a little way upon his foot, but being
very sore brui^d with the stroke, hesooiitniut- .
©d, and was carried into the next count ry
house ; and though fbiruigteoDS weroUrtHigit^
871] STATE TBlAlS,MCaAmhu\L\6ti^Trkd of C&rgOl mi Mer9, [S»
calied the Deckntion of tlie true PreibytenMi
Antiprelatick and Anti Erastian* persecuteilPar-
tie ip Scotkmd, which are uowa printed and
publiahed, and herewith gif en in to yon ae a
part of your dittaj ; by which wicked, irea-
eonaUe, and aeditious papeca, ye and your
traacheroiHy bloodie, and morderinff accou-
plioea, have plotted, oontrived, and intendit
the death of hie nu^esties sacred person and the
mine of his govemment, and authoritie, and
the deprivation, deposeing, and suspending of
hin, from the style, honour, and kingbe name
of the imperial! crown of this reaime, and sick-
Irhe, ye the said Mr. Donald Cargill hate
onuk in poj^h and jesuiticall principles of
exanterating and killing ofkings, and to tnake
them the Getter take with your zealous and
ignorant disciples, ye did most treasonablie ex-
immnunicat f your native sovereign, and seme
I am told he never recovered so fiur as to speak
any.
" Gen«al Dalziel of Binns, liTing near bv,
was soon advertised, and came ver^ ouicUy
with a part^^' of the guards, and seized him :
Such was his inhumanity, that though evo-y
hbdy saw tlie gentleman just a dying, yet lie
would needs oaiYv him iu straiglitto ^inburgh,
and he actually died among tkieir hands in the
way thither. His corps was laid in the Ca-
nongate Tdbooth, for three days without
%nrial ; and though Haugh -head's friends in
and about the town, M'ere very importunate for
liberty to do their h»t ofl&ce to hiro, yet that
eonkl by no means be granted. Such was the
fury of those times, that it reached the bodies
of tlie people of God, ai\er tliey were killed
by them ; of which we shall meet witli more
ittstauces. 8ome little time after, his corps
were buried clan<lestiiiely iu the night."
* Eraste, or Erastus, was a physician of
Switzerland, who slrenuonsly niaintainrH, thai
the Church was subordinate to the Civil jtower,
and dependent upon it, and that there was no
regular erclestastica! authority to excommuni-
cate, exclude, censure, al)soIvc, decree, or the
like. I am much surprised nut to find in
Bayle an article to Erastus, hut Morreri make^
brief mention of him. Fountaiiihall under
date yov. I7th, 1681, relating: that the Privy
Council ha<l dfclared vacasit the places of foirr
ministers ol' Kdiulnirgli, nho had refused thr
test, obsenes, *< This was an instance and
practice of the kinjL|;*s supremacy in occlesias-
tjcts over churchmen, whcrras properly thoy
ijiould be only deprived by their own peers or
thcbi8hop.''l'Dec.l6?.
f (>f this most extraordinary transaction, I
have extracted from Crookshaid&Vs History and
the '^ Clond of Witnesses," the following par-
ticulars:
" Mr. Cargill ivas now the only persou who
ventured to preach in the flekis, notwithsuind-
»g the sanguinary laws against that practice,
mi who praaecuted the testimony for raligkHi
md libtrty ia that BMBMr.
of hie
at Torweed, tht
October, 1680 ^ears, or ane or elher ef tte
dayea ef the said moneth, and ▼» hnve ky that
contagnm poysoned and iatected ma«y ptar wm§
** Among other parte of bia
aguust the enemies of truth and £
which eacaaperated the enemies noet, waa the
Torwood Excommunication ; wboein he
moved with zeal againsi die ^ndigmtiBi
done to the Son of God, by ovcrtonnflg hia
work, and destroying his pe«^, Mivcnd vf
to Satan some of the most scandakmsand prin-
cipal promoters and abeNon tff this immunwif
i^ahist Christ, as formally ae be oouM m ki
cirenmatanees, who baviae eamaaily iefl|kl
the coBcmrence of bis brewren, onali lul s^
taiu it; and therefore, was left tti d» the wMk
himseir,
no means i
sorts of weapons 1
save that of Ecdesiastieal Cenamre, and mm
neglect of it might bring open tbia Cbwihthjjl
severe reproof given to jPergaiiiQa« Ber. a
14, 15, for having in ber eomuunion the Nisa*
hdtans, and them that held the deetrine af B^
kuun. [But I have a few things agaiaHlfcsSi
because tbon hast there them tfant kUiha
doctrine ofBahuun, who Uugbt Balak It sssi
a stumbling block befiDse the chiklven of Inri,
to eat things sacrificed unto klolay andleessH
mil fomicatMHi. So hast thou alao then Art
hoM the doctrine of the Nicobutanas» whUi
thing I hfOe,] and that sore animadvcnioa i
; ana inererore, was mc m oe we w«s
if, or leave it undone, wkicb bn ooiiM ^
mm think of, coosidering that aH slllv
f weapons biid been used agaiaatthsM»
come and tight against his Church, with il»
sword of his mouth, on account thai such woe
not expressly cast out of her commuaiaa.'
Wherefore, in September 1680, afWhehii
lectured upon Ezekiel, xxi. S5, 36, 37. *Aaj
thou, profane wicked prince of Israel, whiH
day is come when iniquity shall have an cdk
I Thussaith the Lord God -, Remove tbediads^
ami take off the crown : this shall not be the
' same, exalt him that is low, and abase hisi Ibil
w hi^h. J will overturn, overturn^ efveitaniili
and It shall be no more, until be cqbm whan
right it is; and 1 will fj^ive it him.''-^Aid
preached from 1 Corinthians, v. 13. 'M
tliein that are without God judgeth. ThsfsAn
put away from araoug yourselves that wisM
[M'nion.' And having made a short and f»
tinent discourse on the nature, subject, osM^
and ends f )f excommunication, and declaitd hii
motives ktading him to it, not to be any prinU
spirit uf passion, but ccmscience of duty td
xpal to God, he pronounced tlie SssHSertr h
follows :
*' We have spoken uf ExcoMttonieatei ■
the causes, subject, and enda tbereei; weshil
now proceefl to the action, being cemtiaM
by tlie conscience of our dntv and aaal far (M
to excommunicate some er these wh* htfi
the committers of an gieU
authoraaf the graai iwiirhirfi ef J
ytHII
fTATE TRIALS^ 93 CiiiBLSi II. l€tl.-^/ar Ti^mmu
yOW ill
-A .:, \eh^fe
Hi iiiu^ if€ iibftll k«ep lh« nftmet by
bfjf am ordiaiurily odtad, ibit they
sine A fii4iitiU«r (»f JwOA Cbri^t, and
imkofitT nn'l pmver fram Um\^ flo, m
Bi ftti4 y^ bu siMiit, Excotnniunicalc
II*1mii^, cVe.-'iiud ibftt upon tbeikc-
wu'kcilTir?sP!5, lut. For his
mI*^ * ^t*ir be bftil ac*
_ fi ^i JiiT^ii isiiM> bis
f idukiry, aaii bmi soleiimly eitgaeed
Wfiii Ht • ticiclaLnuioii al Duoiermitne
ilf Ani;usi, 1650, Ue balb, mmviili-
«f aM Uiii, y-une on mai^e urowedly iti
• ikwi aU lii^it wen t Uei ori^ hi m . liilr •
mat perjm^ iti Uinl, lifter h« btitt
liiMtt •okoifily su^k- '^il>^<t ibateovi!*
! cHii>fiiMil ii to lie ibe hiiMl
legman. Jilly, Btaiiist; Uv h^th i^es*
11 lawn ti»r estaSlinhin'jr ttmt relifpou,
HiMi Imwm far •■^Ublinhiii^ iu cutitr«ry,
itil) working for tUc iuiroducinjp of
bo8«kiuiK, 'iM\\ Fur coaim«ti(U
to drulruv thu 1 Ami's pi-ople, wbrj
in ' ' I nee^ untl
, r4&iiiiie«4
ilHl iiuurirn tM turn ^ »ri«i ^ Olt'
bolb iihcd an fieltk, mt flcaibbk ami
•% ot Ui« pvoDle ofCsoi], npo« Mvuoui
I ami rif^hUiwiiflne^, (they bcini^
if in nit iiiImt tb'uigi to i-«nUer bim
i1 ci|ftied ami ruled tlwtui
I ' riatit and oatb) tthjre tbon
t a bitvtj been l>«fore bim io
L w Tbat be b«tb been iliH an
]»t A |i«ik»2iitor (H' tbe true RroleHtaDfei,
r «Dd bel^ r»f tJie PtipiilsJ^tb at
Malirxiaii, adiJ IiaUi liiitdered tu tbe
lif hii imwer thu dii« exeeiitian of jtist
them* f''-' * or bk r«la%ui|Br
iVi by li itffrmntof rt-
parcbfiiB i*n .Mi..«j4Hers (wbtch is
ol ma Itinft #» do, Ijeioff expff«ttly
ftm^lmUmi^ 6ml), wbl^i wai^ tbe
■y IB emhttkleo nieii tu u of
lblftlb#4dlIaivAlflbehn Um\.
TaftiMaliy ttlVnilicfr lbiti«r*f bmL^renf
■itftn tiiiOfa7tnf*n of Adidkr^ anil m-
f libit bnee*. ii. 17».
J ^Ainiil 4 UmiHm, 9»y^^
tbe aORit^mus bii&od of I
■luMiflbrtUi bvfutUn < :
M «l*lii» MiMKlwile mtiliiiuaii tu vr i»trres
■4y«fc«f biiowo «iilcrtoo,
« «Mi0» p«)lnm, and bad tbc tin-
liNviilaf •• >tM, wtihoui a muueior^
%km muidefBi him/ llr. Fo« in de-
iJba cli«^«pl«r of C'b«rki nys^ * His
<br Kw larii 11 of OrloMn leemi to
iM8Br»«4«ff4ieii And UMiigb Bur-
tbcM jemiiticvil nod trniMliiHl JRiiid|taf 1
wberby ye we giiihy oftNir bl#cM| y#Qcf«1
mlmuieed ihet to wbi<3b ye pv«lendit ecitl*it|,1
Mid tfc»lroyed (a« tare e» in you Uy)tb»il»]
I lid Lsdiwrr mare opeulj^-*
'IntM for iMt fuler wai of 1
u i^d.uiiw »i»vutL, » itever owrid iad tbat iktft }
Mid I
,AieC!
was iijty gfroutjd tbr stldi & »ua|iiaioii;
rtcsl VVork, |^. 7 1, Urge 'Med* of 1608.]
drunkcnnejfl, bis dii^^inbiiiig iftith God
mail, and perforimiig bis promises where j
engnfiremeats were siDful, he*
** Next, by the tame aulliority, and in tb« ^
aametiame, Icxcxmifnticiicate^ &c* Jamc^Daka I
bfVork, ^c. and that for bb idotatries (f«*r jl
1 shall not i|»eak of any other sins but witai 1
Jtaye boett perpelrale by bbn in Scotland) ao4 1
<<»r vetting up idolatry in Hooilaad, to deHie I
i4nrd*8 land, and bis tnticing and i
otbcfs tu do su, *ke.
*' Next,- in tbe b-ttme name, ^c. I eivoaii»* ]
mntkiaaia, he, Jiime» Duk^^ of Monhtoutb, (
for aataing inti> Scfitland, uinm bis faibt^r's t
just flDHiftiaiul^ and leadiag' i\rmit*s agaitml I
ix)rd'« peopb*, wlw» were c«iistraiiied ta riia^ 1
bvinof killed in uud iw tine rigbt wuribippcii^i
of the true God^ and ihr bis n " '
nioriiinj|j^ St Butbwell-bnd^r, a
artiiK^ lor beiu-iug^and radruMMttg ibeir injuris%j
wrcMip, ui]d oppraiM0i]9| he. 1
'*■ Nciit, [ do, by the same autboiity, he^^
cx€tirniiiiinia»te, he* John Ouke of Liiulcr* |
dale, Vt% for bisdrradfulMasphomy» <'^periadly 1
that woi^ to the Pidate ol'St, AmlrewM, S4J
ibou at my i ig^Ut Imtid, until 1 make
enemies thy ii>«]tHt')id -; bitt nthtn'iiical drolli
on tltc scriptures td' fMHl» fifcolhn^ at teli^i
and reli^iiius perwns ; bis itpo:,4iie^ fi'^^m ili^l
covenant and rdbrtnation, and his per^c'cutiti
thereof, after be bad been a ptutestKir, pb
and prueacr thereof , for bi^ ]»pruiry in the 1
n^ss of Mr. Jame!i >J)t€bel,* for nis
and undpnnnes^ ; ifjr bi^ counselling and as* ^
sidtiuif tbe kiiii( iu all hii tyrsnttiex, overturn*
ing and ploltiii|^ agsitiBt the true religion^ fof J
bis g^iintu^ «m tba liord's day, and for
iHual aiitl ordinary euraioff*
*Mn tbe ssDie manner Ira pronounecdi
teuoe against tbe duke of Boibest •i>' ^^i
Mackenzie, tl>a king's Aduncate , and Tb
Daljriifl vf Btnns*
*^ AttiT b9 bMl pranotuHsad aeaieiica
abiivr, be went on as follows; «^ t tbink aoi
that aeknowledsfe the wordrof God^ tbe poi
deputed to tbt? church « and tba reason and aa*^!
ture of that p'»wttr, rn(i ju*b:« fbts seoiance V§m
be unjiiftt. The prri ' H(fiti|^uiiformal^|
witb*>vit wumings. ik» 'Nttv in ^"^^1
anawetiKl, in that llurse itn^n iiava placed tbe
iaivaa abort tbe adanaaitiooa ^ ntinisiers^ bi
re|Mlled all due warnirriipi, and wickedly put 1
cruai deaths tbe srirvanta and niit>islrr«
thinai
adullcnaii
his]
* As to this, see tbe CUiscs of IIIitGliel, i^ .
6, p. I'idOT, and of Maitlaud^ ful. 6» p. 13at> aC
tbia Collection.
875] STATE TRIALS, 59 Charlis II. i68l.^7Vttf/^ Cargitt amd tpihtrs, [87(
which ye pretcniHt friend, ye have wrested and
•trained the Gospell of peace, which teaches
obedience to magistrates for conscience sake,
Christ, who have, with freetlom and boldness,
adventured to g^ve them waniings and admo-
nitions, and shut up all access Tronj us that
remain to do the like; and as tor proof of the
fact I liave here charged upon them, it needelh
none, the deeds being notour an<i known, and
the most of them such as themselves do avow,
and to their shame, boast of. And, as the
causes are just, and such a^ for wliich the tiii-
nisters of Christ have in all agrs proct-etled to
the like sentence, so, it iH'ingf now done by a
minister of the gospel, and in such a manner as
the present circninstauces of the chiircli of
Christ, with respect to the present cruel pt-rse-
cntions, will ailuiit, the sentence likewn yc3 is
nndoubtetlly just also: And there are no
powers on earth, cither of kin;,>-s, princes, ma -
gistrates, or ministers of the gospel, can, with
out the repentance of the pei-sous openly and
legally appearing, reverse these sentenceK*^upon
any such account. And us God, who is the
author of that jiower, is the more engu&fed to
the ratifying ot these sentences; so all that
acknowledge the word of God, and believe
themselves subject to his government, ought
also to acknowledge them.
'< If any shall object, as-we hear they do,
that these proceedings, though not unjust, arc
foolish and rigorous; we answer with that
Vfon\ of scripture, which we have much more
reason to use than those of whom it is recorded.
Gen. xxxiv. 31. * Should he deal with our
* sister, as with an harlot?' Should (hey deal
with our God as with an ii'ol? Should they
deal with his propic>, as with munlcrers ami
roale^ictors ? And shall we not draw out God's
swortl against GotPs cncinios?"
Crookshank then proceeds: " It is not my
province either to condemn or vindicate this
action, which not onlv evposed tlie suflcrers to
the gr renter fury of tlicir persecnlors, hut also
to thti censures* of the ir friends, nay, and ex-
posed t!ie wh(de body «>f lh«*. IVesljyterians to
the i-idiculc and scorri rif their enemies ; tliou<rh
nothing is more rorlJiin, than that tlipy ^vne
neither cousiiIimI in it, nor ap[<r«ived* of it.
However, the tollowin;: queri<^ are submitted
to the reader. Had not the persnns nsfainst
whom the stntrne** was pronouuce-d l;ceii ijfuilty
of all tliat was lai<l to tlicir chapjie? "Was not
Mr. Cargill an a|ipro\<»<l minister (if the gospel ?
Can it be said that kings and priuecs are not
subject to the ceiiNurcs of the church :' ft is
plain the church of Knpiand appi<>\cs of the
excommunication of royal perstms if they de-
serve it, as may be seen tironi their homilies,
^thich aro recommended by the (i.'ith article.
Thus, in that ** homily of the rii^ht we of the
church,*' part 'i, it is said. [Ediiioii printed at
I«ondun l()87, p. 172.] * And. according to
this example of our Saviour Christ, in the ])ri-
mitiye church, which was most hoi v and godly,
and in the which due discipline, with severity,
unto rebellion and diaobodience, to th^ great
scandell and disad wantage of the Protestant
reformed religion, the professors and preacben
Mas used against the wicked, open ofiendert
were not suffered once to enter into the house
of the f lOrd, nor admitted to common prayer,
and the use of the holy sacrenents, with other
true Christipxis, until they had done open pe-
nance before the whole cliarch. And this w«
practised not only upon mean {tersons, bat abo
upuii the rich, noble and mighty |»ersons, yes,
ui>on Tlieodosiiis th:it puissant and roi|«kif
Emperor, whom, for committinjg a grieroni
' and wilful murder, St. Ambrose, Ssliop of Ui-
Ian, reproved sharply, and did also excomiw-
nicate the said I'^mperor, anil hniught bin li
open penance. And they that were so jorfy
exempted and hanishetl (as it were) from tM
house of the LiOrtl, were taken (as they ke
in«leeii) for men divided and separated Iron
Ciirist's church, and in most dangerous estiML
*• YcA, as St. K^iul saith, even given untoS^tu,
the devil, for a time : And their compiDj wis
shunne<l and avoided by all godly men mi
women, until such time as they, by repentance
and ]|iublic penance, were reconciled.' Here
then IS the excommunication of a puisnot lod
mighty Kmperor, and his bein^ broogbt to
o|»en penance, ajiproved of by the chureh tf
England.
** From this the reader must judge for him-
self, how ill it becomes the higii-flyers to make
the Torwood excommunication a matter of re-
proach to all Presbyterians, even upon the sup-
position that they had approved of it, and wbe*
ther that action was so unprecetlented as some
would represent it. And for the formality ted
seasonahleiioss of it at that time, I mnst kAt
him to what Mr. Cargill says himself, and ts
his own reflection.
'« Next Lonl s day, Mr. Cargill preached tt
the Faliowhill, in the parish of livingstose,
and, in the preface, said, * I know I am lodl
will be condemned by many for what I bare
done, in excommunicating those wicked men;
but condemn me who will, I know I am ap-
f»rov(*n of God, and am persuaded that what I
lave done on earth is ratitieil in heaven; ler,
if ever 1 knew the mind of God, and was dear
in my call to any piece of my generatioo-verk,
it was in that ; and i shall give you 'two ai^
whereby you may know I am in no delnsiaii
1st. If some of these men do not find that aei-
tence binding upon them ere they go off the
stage, and lie not obliged to confess it ftM
their terror, and to the ^rightment of otheit.
2d. If these men die the ordinary death ^
men, then God hath not spoken by me.* T^
first of these was verified in the duke of Rotbci;
and the second in the remarkable exit of mort
of those who were exconimunicatcil.'*
fVlr. liaing, afler oliservingof thisexcommt-
nication, that thou|^h ludicrous at present, it wai
in the time of its denunciation, of a deep i
indelible impression on the whole sect, |
" ^Vhile we pity or dendt their i
STATE TRIALS. SSCraklss TI. iGsl^or Trtasaa.
[875
tlirr (JetrstAtion of snrii oplitian^ and
' fy tor ili«-
n, but hy wbicli
nlvtt uwi pro-
ill
Vol ,\L
ih*^ little rea«)n la
of ibe vusi iiuralKjrs wlio uoiiltl
rledgnt* ihc kiny'i* tttifhoiity, many
to ill at re.«jo1utiin. and many
Irmetl in it by C an^jitr^ injntencu*
lilts were the prosecuttonu for that
l^in! it is curious to oli^orte bow of
br . . . , ,^ : .i
ids, ami a feiv
\ 9i\ I wilt here in-
F^imtAiutiuU two Mbort reports of
km J,' nY Spnin in
*>1 GagjCt com
"i
>rk
birrd from* lh<' (hike some of those
'■ t oftheirrelijfion
-V witli him, us
. The ihike calleti
an«l f^yx- of them,
, Lii|}&U*v, Nte^wart,
4, the most ol th^in yonng"
rf'ticlit M lib u jutrp^^se to sen*
^1 ! to him ; but Ihey
initiif ♦^^^ kin;?, the
such
^'in i'^viiy, they
d «t the tTiini-
riminal Court, the six i^rr*
I dc-'-
iiute,
C^li^^ f Jtllt (jtnl M) «'. lllit I
veil), ind 5irV>»rr!n» } iJ me
ottcif. Ill I : ul vUi»a ibey
ifr tbi? (111! eonriril, th>*V
^1'
V oot
11 t tlicy were ng bttous
the ftune on thcii-
takm Umhiianikn** motto, borrowed
pwicdres c*^mrnitted by perBont, and owned by
wreitterss of the Roman profeasioii, ye alv>
teach yoor di^siplcK to il^e for tliai which y»
from lb« ptsat Emperor Trajau, * pro me, fin
' mcreor, in me.**- ^Gaitiock bjivinfr-^ at 9
committer* of council, railed at general OalzieJ^
c^lfing biiu a Muscovia beast, who used to
roast men, the general in a passion struck him
with tlie pomel of bis sbahle on his face,
tiil the blood sprung. Garnock tjare in ft
testimony and protestation, all \irttren and
signed with bis own band, calUojnf tliem all
bloody muiilerenj and Papists ; and ebarg^in^
all the parliamenters (as lie called then\)
quickly to reverse and disannul their wid^ed
' '' . y bad made, and thai Popish t^ they
II taking:, and to put away tliat sinful
*.. If iitieanific' the duke of York) or else the*
jad|Lrments ot God were ready to break upon
the Iftud. — — ^LapsJey i^as wiser than th«
other five ; for he owned the king in so fiir ntt
he owned the covenant which he swore at bit
roron alien at Scoon, and would neither g©
back uor forward, nor lay any more ; so ihej
not being able to reach his life, the diet wn»
deaerted against him, and he wqjj sent back to
the thieves hole, to be fettered agrain ; but
while they were on the pannets th? ordts were
taken off "ibem, so * non dicclmnt causam rr
* vinculis.* 5<'<ore inclosing the assize, they
fifave in an^i'' ^ - -- rr, subscribed with all
their IoumIk, < m /r blood on tht^judjff^,
and summouiu^ .,. .,. to answprat God'n tii-
bintnl, and rvflectinij on tlieir iiojusl and bar*
barou« denliusr with Mitchell, Me^ieurs John
Kid, and Kin^, and alledgin^ Mr John
Kllies, for pursiimfx I hem, died with horrors^
iind for kilhngjwnies I/cnnonth only for be-
ing present at a field convenliclo, wheVe a man
wa^ killed, ike.. — Thif five w<?re found guilty
by ifiejury, and condemned to be hanged in
the Gal low- lee bet »ivt Leitb and Edinburgh »
on the loth of Ortcil>er ; their heads to be
Miuck off, and f^nt up upon pricks upon the
pleiisance-port or Edioburg^li ; and Forman*«
hand (who bad the f* ■- • ^ ' ^'- \ to be cut oflT
all re ; all \vbiilt w tiof»c ; and
tliey <lied obstinati ^, Luowledging
any fault, or reirueting their errorSf or allow-
ing Qiinisters 10 pray lor thciu ; but reviling
and cotHtemulag tficir judges, and aJI that
differed from them. Their iHhlteii were stolh^n
up by Kome of tlteir party lW>ni tmder the
gibbet, and reburied in the West- kirk-yard,
♦* October 11, J6ai. The duke of York
called a couneil extraordinary, to send a way
' ' I " * lo of so de-
to Flanders,
ifij^u iiiL't i>«tt I'l'ii-iji ii., hjicy bc^an in
that wimererv slraui apd dialect wi^th their
neighbopr'i **fiA ^i, r*' f nt b !n<riul iht dftv he-
fore: bi: '),
that tht ., '^
thti ues.^*
^i■ . ■ vol. 4. note IV. calls tliii the only
instant, whi«h Urn btt fouad of an •quivooaJ
I
•hiit ftwl aliutie to ou uf ^anil ^ve Iwintf tijka
tib n I ', * aiul kirds of
Privic ' , 'i nt q4* July, ifl*
«taiit, au€;nt your tr«a8on»ye |>raolicei mui
i>n(i4^7pl<Bi aUrve mentioned, ye ibr saiJi Mr.
bon&ld Car^ill, >lr. Waller Soiiih, anil Mr.
James Baig'tTiave n>ostt4'ettMMMil^e denied mod
ilioowned Uie kui||^'« iiia|«slici B.uttinHtie» ma
aowe csudilifliad, ded&riDg tUM ye sre oat
' V ' !;?cd to obey it, and ye the wid Mr. WatWr
I does «xpreJtB»tte iliMiwn the king's auUio-
i '%M *qA power in makettig onudges mid calling
of parlmneots^ afiseitiog^, iml if ye dicmla
owne tlie lamtv ye should own the toketi^
away of your own lyff, dcclairiiig it tberby to
b^ your oj^ioion, that tha ovraetog tlie king^a
aotoontae m us mat a cryme as self murder.
And ye the said Mr. Jaiuos lioig did refuse to
ttgne Tour declaraxion emmined befor the
coundU, and tliai Utcauiie it would supply e
«ie aekoiiwledgemaiii of the kin^^s authoritie
liuinatiity in the duke'e adtoiiiistratioiii whicli
therdbre it would be mijusl towarda his cha-
cacter to suppreas.
**IlM8Wier 11, 16B2. At Criminal Court,
lltree BolhweUbrld^e r«hela, called Cochran,
fUlajt aad Rot^itton^ are pannelled for
bemg; were, at least far Obownin^ the kiog'i
^ittBonty, and ciiUin|!^ hiai a tyr&ut, and re*
teil^lo Oill Both wei- bridge a rebeUiou ; tii^y
were vxmtmmd ta be haoffed on the I5th Do-
remb^ff. Robertfloii aaid baldly to the king s
advocate, that lie was maintain iu^ no more
tban what he had sworn tu in the test ; for by
iU they bad all a worn to Knox's old confession
of faitu, and »o by it were bound to suppress
tyranny as well aa he/*
Aa to tbifi flee what Foitntainhatl (i 1>ee. 149)
nys in hk account of the p>roceedin^ in tha
parhament of 1681.
•* In the act of ibis parUanient^ aneot the as-
ierting the succesiion of tlie crowii, these
words {which are twice repealed) arercry ma-
terial, and deaerv€ deep consideration j ** That
it abail be treaaon to alter, LaTert, or suspend
the nest heir from the admmistmtion of U»e
ffOfarnment, aecordiog^ to the laws of th«-
kingdom/' Ergt>, the atledgeanee ceescs, if
the next heir administrate contrary' to the stand-
ii^ laws for the Pretestont neli|non« or seek to
ililrovkioe Popery : Tliis consequence is the
•ame with what ib deduced from the 15th and
^Mh atliclea of our old con^ission of faith tn
1507, limiting our obedience to the magistrate
whiJe lie dotn tlie lhtn«^ appertaining to his
Mc^f duty, and charge."
* ^Mjtaking of the duke's coming^ to Scotland ,
Hkidn (Hind let loose 16 T), says «' Aoti-
dbrvt^ began to blaze bis bravery in the »obtan
and shanaieftil rece|itio«i of his harbjn^r, that
-pftnip of the llmmah whore, the duke ^ York ^
who bad now pulled off tlie mask under wbich
lie had long covered his AaUchri&tian bigolry/'
87dJ STATE TRIALS, 33 Charles IL i6Bi.— Trial i^CMrgiUmml^i€r9, [(jgO
(which ye rtBotuiiie and oliauiMilie dsofirtw),
and that to such ^t Uu* ht ri«; \ *• xi'Al uai iW Tt.^
Wast act that v
est ackoowtecf^' i
which ye most trt:
dij$<jwiie anrl rtrntrrn
Mr. Iloui , Ml \\
l^)r, Jami vejntwfttre
of his royiUI lii^jtiuet, his
nuM^iimei , and torda of ci
tied, and rB&ib.iii^ * '
bridgf, ill Jiiri
t)iat thcj' wcT I
persuit ofthct:
tbat they rose
said 31r. Doiur
St ilic Ibrsaid i
in October lOHU* but inovi
1ii«4 »^.. i (WO
• OS UiwVtill,iaA
^^*\ aiid>tlb
ve iirtieM
^ Tanroid,
ar-nitT whither ysdU
or not, 1^
iri*«irt ais« «och»
- -..via.
r Uie cotuniaadi|||f
d\ ueo^te, wboiir
thw pfitv
' hffls*
cliue^, and tx-fu^*^ to
excommuoitat the '
preteiMT^e thst i' h »<
staatic iM
catorie, ii
mcuf
aod
thiiik the reasons *y
oalioojufttjpAHi' III
thekingis&tiil
armes to de$ir
standing in tber owne i!
led£pcs and rightv rtj;;ninci
au(i injuries ot
thed in fields, n
of the people of God, u^^
ligion, whirli ground oi
botli most i^fie and tref«v>r>»i
treaaonablie decline tlie judtri
diction of tmr soieraigoe l"^ '
in s^yeiug that tliat m i
jwd»jfi-d by the council, b«'
judical one, and ye the s:i>
.ind '\Tr. Walter Haiitb
kh ihe biu<
d^x^jsitf the late archie ^
particularhe with JoImi
ilenn sons sons to Hriit _^> u^u ;
and Jamek ltus«il in Ketle, ii
partiVnUrlie in Hot'i > '
tide holden at the
the -t
said Mr, Doh
preach yf^'"^ ' -..
and ye til bafttris
owDed auJ . . laifOtuiUe
above meouoncd , called the 8anqtihAr 1
tiou, in the hujil lit;ad and artic&BB iLamit
having read it of ur» and liaving svta mad Tm4 ^
former! ie as ye cotifcKse, aud ye tjie uid
Mr. Walter docs al»o owne and adl^KV 9s Iki
sameo with a certain ghjsae myl ioti
of your owne^ but meat trea^HiabUe <
tbat lie cortainhe knewe the k^Dg is alK' i
and ye wish he wcr nui a ty iiiai, thereby 6p^
eluding thai he U a tyrran ta youcr naiiiw>
and that ye ffe iorie he la aae, md llto^dl d
[)aUlCai|ia j
Mfi 10 answer aoeiit the muixkn* com*
inart^ upoa tbc lat* arehbi^iUap of Ht. An-
ye-i 3^e tlie said Jllr Dfmtiiil <io^ ftsaeft
f
^ATE TRIALS. 33 Chaklbs IL 16Sl.-/or TttMon. [M
who w^ inifrigOTieil for tber tcoMciofi to the i
i^id rebellioD. Lyke a§ b. :' ' '
oivnvtl and derlin^d Itie ki
and his autboiitte^ ^e the H.4iM - 'm-
aon haying^ that \e* would l:t^t ! \ rt'at
BO dear a rate as by Miytiig Gotl ,. , ^. ... i-m^; j
aud ye have decbired it flft lawtull to kilt the j
officers of his nnvjestie** nrmj, ai it is lawfuli
for his tnajeslie'sjud^e^lo exec lit justice m|M>ii j
rf'hdhous traitors like yoiiret*ff, whom yr call ^
jfive yiiur sense
natiJe and Jesuitical]
"It and murder, and
[\^ a call, Diav faw-
lo case of Phmeas*
sidtTatifin ye say ye
f the archbishop's
SKird^r^ thereby insinimtint^ tliat the murderers
f a Cftll and did rimrdcr f awful lie. Of the
frhifk ti^as«Hiah(e crymes ^^hovetut'ntioned, ya
•lid Mch of yon areut'toi^, artaud part, which
Mnpf found !ie ati*> assiir,e, ye oiig-ht to be
flUaished wrth foi hudture nf I v If luads and
giMidKy tfl tho terror nt" othris i*» coriiaiit the like
ScraDer. And ye the waids \Vm, TliotTip?*ou
•ml WiiK Coolhill, ure indyteit »nd accused,
l^^it will**' r.ntnaii^.irv.i,!lMi. [j(. fi,.. fms !ind
ttett ' ' yt^t ye
^feacli ^ ^1 iud ns-
nrd 10 Ilia in;i|t'*»tip'a autlior^tie and lawc^^
K«rfr prr'-.iimcd t»i ry^se and joy n with the fw*
%' ■ ^ in ariji«S| ut BoihweH -bridge, in
J . , . and to emitiuiie with them cotn*
WoAthvL^ all nctsnf hostdity, reMHon, and hi^i
n» Idl they wer delitte^and sickly kc, you
M iifmn tiie day of ,^ assist to
tikin^f of two [wisoncrs fiirth of Airtl^
Mi^c Numb, chap. JUV^
if K(*r*JmWs, chap, ifr,
—Many pilgci in the He*
i other Hcolch tflsev ins^ed in
CaNee^tm^ tiMt^ prools of rcmarkatde
I ini tiM!firn?fStiteai in the liecord*
IjiMlidary frtNH which flnfy w«^ tranicrih^d.
Htiine, in h\u falunhfe and instructive
^ ha^ mentioned mitnr tni^tances
ecliofi in thesr It^^-cirrlii/ The fol-
f I hate nnfed amn»i^ others :
I thttt certain commissionf of tOflg^
in the biiftks of Hdjonrnaii as if
llKf limes of their en try , which are
\ later tlian the true dates of the corn-
See of Description and Putrwhment
» voIp It ^p. 2. 17. Ho he metitinns
I of abrtdg'tnent and mutilation. Bee
cription and Punishment of Crimes,
. 1, pp, '14^, 550> 26 1. Of Trial for Crimes,
^1, 9, pp. 8^*5. t\99, 416. So omi«dons. 8ee
TiripOoTi and Puim*«tiuienl of Crini»'», vof 1^
, 25S. 534. %bb. So omissions of the whole
See Ilescri()ttmi uttd Punishment of
, fof . 1» p. 351 . Trial for Crimi'^, yol.
\9t, Wl. 417,418, And oitm^ons of
rdie libehr^ where there were more than
f Trial for Crimes, vol. '2, n IvSzt. I*m>
one of the whole Reconls. Description
^imisbnflcnt of Crimes, vol. I. n r ., So
on of Arguments aud Jf on
1 povnts. DescHptiftfi at:; \itttix.
^ Crimes, rot. 1, p. 43^. Trial ior Crimes,
2, pp. U9. 159, 160. 169. 18t, la-^t 18a.
>494. Hoiiu > I of only short notes
#ra label. Tria! , toJ. 2, p. 45. So
WMiof mnfofrnny in mt.* Hee»r|fl*as to thvia*
youreef
the people of God; and ye the sai i i
Coothili has most trciisonahlie deeL t
ve think the king' deseiTCs to dye because Ltf
lias hrocken the covenant, and presics othei^ <
}iersom} to doe it hy his forces^ and has int»st
falslie usserteil that he lias caused take the i
blikMJ of many upon tliat account. Lykeos ye |
hute must lita^iphcinouslie dccl aired, that those
who murdered the urch bishop of St. Andrews
hade the i^loric of Go<i befor thcr ^yt:&^ in Ihut'
act, the whilk cryuicH ye hate not mdy cO«-
fesscil in pjvscucc of his mrijestie*s privic coun^
cill, but ahrt in prrs^«uoe of h»s royall liil^hnes I
his majeM t^ommissimier, and krrds^
•f privie L u the l'2th of Jaly insUin^
ana of the vibilk ny mcs abore speciAt, y^ aaa ^
ilk one of you are actors aK and part, whiclk
t ^ ' nd be anr j^^ht to be]
. ith the p;: I itrfiinlture ,
;i.... .....1 ideation of i.^.i<.^ ..u..i t.«w...i4fs, U\ tbe^
terror of others to commit the Uke heretW.
PcTictecr. — SirGuorg^e M'Keujftie, of Rose* I
hr^ugh, our Soreraigne Lord's Advocate.
His M(ije»ties Advocttie produced the Indyt*
ment and Precept, therupon deulie execut a»*d
iiidorsat* togitlifr with ane Act cvf couneiil,
wherofthctenorfolloweBj <* Edinburgh the li>lU
day of July lOKl, his royall iMsrhnes his ma-
jesties high commissioner, and k>rds of privie
councill doe hereby g^if o order to bis mujesfiea
adrocate to persewe a proe^ of forfauUure be-
for the Lords Coinn" •■•""""- -*' ;.,,,„,.,.
agrajnst Mr, DonAld <
Wr. James Boi;j< Vv ....._.,
Ham Coothili, |
behiswarrand.
r which «
1 y me. Fa. ■ -
Theljords fmdfi the Dittays relevant, and i^-
mitts tiie same to the knowledge of the Assize.
Asaizc
Hugh Rtair, vintner*
John Aitkin, goldsmith.
Jainc« Oruhum, tintner.
RohertMiln, mason.
John Colcndar, smith*
Ale>:ar\der Isack, plumber*
Mr. Alexander Rohertson, brewer.
aertion of particular matters. Trial for CrinieSi
vol. 2, pp. 15a, ltk>. 171. 180. IRn' •!!%.
Moreover, it appears thai during son
the Records are uot extant. See U
and Punishment of Crimes, vol. 1, p. liU
Trial for Crimes, vol t, pp. 4«, IQO. \m.
143. 543.
3L
883] STATE TRIAXS« 35 CuAUSS IL iQKi ^Truit t/ CmrgUi mi ^kert.
Ctpl. Andrew, rvrreder.
Williaai Bruc^, italil«r.
limes M*Cubie, merchafit
WitlUm Uunbar, of PaiUinak.
[iCsjHilin Aoilrew Cajsie.
Alejcaad«r CrutcUiitokit merchfttU
George Wf ir* Urewer,
Andrew Joboslauo, lOmliler.
s Assize UwfuUie swome, uq ol>jecti<m In
.J cootrstf .
Hi J* MtjeslJcs Adfocat* for Probntion, ail-
dticctl ibe p>ana»lJ^8 Exammations and DccLa-
ratioDS, wberof tb« Uiior follotrei:
EoDiBVKCEf , tlie f) iteint of J uty* 1 68 1 . In pre*
seoce of bis ro} all big^btu-s, bb luojcsUus
iiigh C4>nitiibsiuiier, atid lionk of bis ma-
joitlet Prine Councill-
ExaMiMATiON of Mr. Donald Cars^UI,
Prisoner.
Mr Vtinaid Cargiil bemjT e.xanuueJ and
Dteiwat if he owntfft tbe kind's autbonlie,
and ue king as bis law full prince answera
as tbe inagistrates aulliorilie is uowe esta-
blisbetl by tbe act of parUament^ anent su-
pn^macy and explanatorie act, be iJenjjs tbe
same. Bein^ iiitcroifat if ht <t\\ us the king^ as
tiis bv^-ful pnnoc, I or no, rcfuites to ^ve any
olber Aiiswer tlitn as aluri^aid. Beia< iutero^at
if be keept a t uro tiittcle at Torew ood ia Oc-
"Iftber 1680, Cinifeases be prcacJied in tlie Tore-
in tbe fields, being* inlcrogat if be ex-
ntmiuicat the kiug tber, an&wers, tbat ques-
beittt^ a que^ticm mcirlie anent aoe ecclc-
^osticall inattei,dechureslhit be cannot answer
it bf(br tbe couudll bein^ a ctvill juilicaiore^
autl tbat be wils cimtait privatlie to gixe aiie
account of all tbe reasous of all his txcommu-
^JJJcalioiis that be ever matle or prouunced;
einpf pressed to a direct answer , I or no, idu^es
> make any fardcr answtr. Being iiitcio^t
ben besawe any of Uioiie ubo killed {bearcb-
..sbop, or knewe any thing of the iiittutiuo of
' dofcing it l>eibr i1 was duDc, detlaires be knewe
nothing of ibe intention fiefor it was done being
tbtiti oi Glasgow^, and confesses he knew Bal-
Hmr, Henryson, and Russill, but thinks he did
♦ ** In parliament there was an acciisation
uraishcd agtiiiisi the king^s advc>cate. lnir»,
?or reflectjijg highly on the parliament, by
tying' be saw scciiucios Bolhwc! bridgx! faces
lilting as meuibetTS of pavlianicut, w hertaa be
illedged, he spoke only u[tou a siif> position, if
|he burrows liad liberty to vhujie w hoiu they
please to repix'scnt them, faetious aud dislo^ul
sons might prevail to g*il thenisolres t)< l1-
I,' But I hopt , en* they t!iilei'i.'d, they i>c-
i>f ed to take the oatits of ulM^eance, siJpke-
nac)*, 4*0. Silo, He was accused for sayin*^ at
be tnal of Mr, Donald Car^dl, on tbe v:J of
July last, that tbe per milting' the coiumoa jieo-
r^le to read tbe scriptures did more ill than ^uud :
L^'bicL WHS a blasphemous popish crrUF.'* 1
[F^^ntainhair^ Dedsious, K'O,
1
\m^
001 see Ballbar of KtnMb* ibew tir<i jofs,
bin did see tlw atlisr two ^fitkm ihtmt li»cltt
months or llMnvb^ I* the l»csi of lus know*
liidge* Tbe c<^|iie ciC ibe •ermofi alt^^TH.
preached be biiii at Titrwvo^^ beiuL'
and he u^kt^ it ibat ^^^ ibe oo^vf^v^ ^
sy t es a ly me to cooshider tlitf%r« ^ > ^ wn,
tteini^ irilerrtijpil if he ibiiiLs ug it
Bothwillbridj^e was a rebeiif<m Sj^aJiist iSk
king and bis authoriue, deeUircfl be o«M 4s*
feihiif e ariu«s in case of ueoessi^ sod ikisb
those thai rose at Botliwd linil|;v ««r Mt
rel^etU, and tbat he thinks cbey wir offR*
and n>«e iu ther oi* ti dclenee. Bekuf tirtO«frt
if be was ^%ith those wws to mnmm^ H
Airdamotte, refiiMs to anmrcr, and MB}m
it may be mwAe «nit a^sicst bim. B«mf ii»
terogat if be was with lb«se ircr in Mwm
at Both n el bridge, be makes tbe %»me wnmm*
Being iHterogvt if he was at th > - >/ tbe
Declaration at SaiHptt^^r, den^ s \ ioB|
inieroqrat il^be bade any aoceaairm lo ti^r (
m^ of tbat dedantMMt «r pentied lb«
refuses to give answer tben>|fon, but
be did not $<*e it till efter it waa pt^
Being interogat aoent that papiar calM Ik
Declaratifm at Sanquhar, and if b« owmi ik
piinciplfs therein <:ootained ; refuses to rvlkt
aus*ier and desyres a tyme Im
not that be is unwDhng upoti i
to declairc his judirment then i ;
called the Fanatick*a Newe C
^11 '^Coienant, being alMirfa^d -
interogTil if be ownrs the pi
contained, makes aaswn
intei-ogat if at his prest
his lecture was u]>oo tlie t i ^rn. :«^f, ^n, md
sr, v.; confesses it wa« so, beuw intuiMt
wber bis text was to his stTradn, £clalfHr»
remembers oot. Being intenigat if be sbiib
tbe killing the archbishop of St. Andrews, nn
a oinrdifr, declaires tttat he canttot gi^
sense llictof, but declaires that the sen ^
baves the Lord gilding a call to a i>rivat maa^
kill he Qittrht doe itlawfuHie, and in^tacof^ik
CS^ of Phineas and Jael. Oeiiujr inltriv>t
whither he thinks tlie king by bin tailing inm
the drill right as km,
be <: matter ecclcsaaatieiif
and i..uiuipi. au^««ti iMii litdt he is ii<^t vbtctdgii
to oU?y the kint^^fft government as it is nowess*
tablislied, bv the act of supremacie. B<iK
interogat wh^r be wb« tbe ttigbl bafoTi IH
tfier he was al Queinsferni-, det^l aires be dofs
not no»e reiueiiiberfbut i ly <
oiiicrs, he thinks be ia nca i ^ i io
Bcin^ interogat when he wa&iu Fyl^t
he wan tiier u{kju iSuudav was a tw<^tte diyis
or a inotitb and prL*acbei1 in Dt-rait > '<
tbe fields. Beiii{r inlcrro^at if
ilenrysons, sons to 11*'?'
bja(!hmout, vias present
lesses tber was one Johu airm\>Am mr-r. wi
whose son he Ih, be kuowes not, be cbinla k
was a nmn about thrcltte yeiuv. Being in*^
royi^at \^ ben be was in Surhn ahire^ qr Cr^-
madfi dcdaireihe was nut there iLvs^l tmUf
35J
STATE TRIALS^ 33 CHARtES IL iSfil.Wof TWaitm,
oiiethf, dtdj^B be was in Angus these tUrec
> four J ears pftst.
Sit Subicnbifur^ D» Cargill.
Cn. Maitland, K P. D.
EomBDRoir, the tmb July 16BI. In presence
of his royall highnes his majesties hijrli
coinmtiislotiert ^lul Jond* of |»rii i« council.
Mr. DonattiCargitl, being calletl and cxarain-
'cdyifhco^rned his sermon preached atTorwijod,
iii wliieh he excommunicaU hit majestic, and
^biA to^al lii^^hnei ami oihers, anil it" he ownes
^^be cxcomtnunieaiion cf the king;, and dudn^
pVii uodcr the name of Charles Stewart, and
m& a tyratme, answers if tlier was ane exeom-
municatioD, be could not ausuer for it, but be-
^*- ane ecclesiastick court ; it bein^ ane eocle-
-itick act, Hein|: aikecl if in that cxcomruu-
ation, he named his niajestie under the
DC of Cbarles Stewart, and as ii tyiiuie ab-
iTWt from the excocninunicatiout refuses to
iswcr, Behig- loterogat, if be ownea ihe |nin*
plea specjfit, in the iia^jer called Carg-ilPs Co-
Qani, and the wards ihcrin rclnttd^ de-
uresbeJms not yet huile sutficient time to
filler therof, and cannot ansner. Beiujn* inte -
at, if he ownes tlie&e ])rincij>ius metitioned
that paper called the Declaration at Sao-
ibar, and if be sawe it belbr it was publisbed,
to the first vnll not answer; but declaira be
did not iee that Declaraliun befor it wa« pub-
lished. Thcsixtarticle of that paper called Car-
gill'i Covenaat beiiij^ read to bini, be refuses to
maiie answer. Being' interograt who was the
ftulbor of that paper, and who nrott it, refuses
^ laniwer. Mr, DooalJ Car^ill dedtiirs in pre-
pceofthejusiices and assy se, that the Mor4
"ila&atorie in his confession is to he iinder-
I thus, that the act explainiii£f the king^'s
eniacie, gives him a rig:lit to the nutbo-
lic of Jesus Christ, and that zinprenmcie
^en by act of parliament is ut^nst rig:hr.
Donald Cargill fariJer declaire«, iJiat those
|l ros»e in arms at Boibwelbridg^e wcjc not re-
Jls, and that they wcr raised by oppresrsiou.
kCharUi Maitland^ of HnHoun, lord Tbe-
irer Deputy Imvjn^ heard a Conff^ssif^n, enn-
Uetl by Mr. IJonaTd Car^ll, paonalh in pre-
W3e *^f the priTie council, w reilten by
IJuj^h Steiuiion, and sub^trribed by the saj'd
Jl|r. Donald, mid by the deponent as pre-
liiieDt of council I, depones that he did by
warrand of hij« royatl htghncs, and lords of
[tciTie council], as tben president of councill^
examine the said BIr. Uonald t^argill, upon
tbe interrogators nienlii>oed in the said con-
Maiid depoui;, thnt the answers made
ke saids uiterro^raiDr^ wer trnlie and
Emmitied, and iiinde by the said Mr.
ai* ibey are sett down in the said paper
ibove mtfolioneid, signed by the pannall, and
\d^ dej)Ooefit as pre«ident, and wreitten
m
;;h 8leinson, and tliis in the truth as he &liftll
ler to God.
Sic Suhtcribiiur^ ChaRLBS MAtrLAKD.
IZm^A Sittvinsm^ under ckrk to tb€ etmiMtl^
cited as a witnes against Mr. Donald CargiHiJ
upon the a bo le wreitten Conte^ion, enimittea5
l>e him be For the council I, and the deponerj
ha» in^ read over the «aid Confession, as Btr,
Donald Cargill emmitted the same, be depotit
it h wb«illie hia barrd wneitt, and thai it wa
eniitted hy him at the councill table, and tbd
htiill interrogators, and answers therto
trirth to the bt'sl of his knowle^lge, and that th* \
margins and amendiaments wer made by the
said Mr. Donald's s]ieciall ordor^ upon readings <
over the confessions befor the councill, and tbi***
is the truth a^ he shall answer to God. ^i
Sk Siibscribiturt Hugh Steivinson.
Hii Majesties Adfocat for farder probation,^
adduced the witnesses efter deponing, fii.*"-
Jamet Huwiitoun,in IIamiltoan,calJed Ne|K)a * I
aged furtie three yeai-s, inaried, purged and' J
iworne, depons he saw Mr. Donald Cargill, [
several tyme* ryding in armes with the rebeHi' '
in Hamiltoun and llainiltoun Muiron a gmy^ '
horse, beivvixt the attackque at Drorocloge and.'
the defate at Btithuelb ridge, and that he had^'
sword and pistolls, and lardttr adds that to th#
best of hia knowledge, the said Mr. Donal^i
was Dl the croee of Hnuiiltouu, at a proclama-
tion emmitted by the rebel i<i, and this is tht
truth, as he shall answer to God.
Sic SubscribUurf Jas, HAMaToux.
Gavin trcn)/, sou to John Wood, in Smid-
dieayd, ageil twenty yeai-s or ilierchVi uomar-
rieil, purged, and ^iwom, depone, he sawe Mr.
Donald CargiJl in c<»ui|>«ny with the rebeHs,ryd*
ing on Hamilioun Muir, on a gray burse, in
armes, and heard him preach to the rL^lK-lla nt
the jtark of Hamikouu, at the back . f iMi%
Jnmes Naesmith'ii yanl, with a swoni about
him, depous, this was a week bctorc the rcbells
ilefate at Both wel bridge, and this is the truth aa
he shall answer to God^
Sic Suhicribiiur^ Gavin VfOOD.
Wis ^lajesties Adrocate adduced against Mr.
James Boig, Uia Contessiuu efter iipecilit ;
i
Edinburgh, the ITi July, 1G81, Inpresenceof
his rnyall higbne*«,*his majesitics high com-
missioner, and lords of liis majesties priry
council.
The ExABiLVATioN of Mr. Jamea Boig,
Prisoner,
Mr. Jomes Boig^f son to James Boig, mer-
chand in Edinburgh, being examined, confe!,«68»
he was taken in the conij«iny of Cargdl, de-
clatres, he ownes the princtptes of thuse lliiil
are persecut for the truths of God, and tlm.%e
people, that were heat at Bothw* T" '
weie the people of God, and were i
for Go*l, Being intei-ogat if he oMiM<» u,v
ryseiug in arroes at Boihwelbridge was law-
Hilh be decUires it was forihe deteucc of tbo
truth, aud tb»t it wa*» lawfull,aud tiiai these
are his principles. Being interrognt if he
thinks the killing of the archbishop of 8t. An*
drew^ was a mutter, deelairee, be thinks he is
not io answer laa the octionaof other tnm :
867J
STATE TRIALS* 53 Charlbs IL 1 6% U^Trial oj CwrgUt mi 0Uun,
daelairet lie owncs ibe declamtioDatSatKiuliarf
£L(iJ ha^ dbco rt in print^ fttid bas read it over,
:U)d i\w same bein^ rt'ari to hinif he ownes it io
c<mndli> in :>n iln hrails and aiiideii thereof,
Beiiiw' iies) ! it, he declare**, b<f ciitdd
not doe itt l>v ere utie ack»uwleilgiiient
ofihekio^'tf utiiUiittUe, uhidi he ituoivueik,
and hi|iduiii^ of it would in)[ily a contnidKiion*
(6bit ii«6fcri6<fMr» C. Maituino. I. P. 1>.
Ml*. lamtt Biii^ having beard u Confessions
eimiiiittt^d he hitUf upan liie fyftvint of July
iuiiUuit* ia pre84<iice of the litrdi^ cif prtvte
oouxicillf reuu to hiui, he coufcst, judiciailif m
pr*-f "^ ^^ ,,♦ *u.. ,i.._.,<m^4r(j ^,f Justiciary
ji; le lilt said Confcf'
ft I sjlow lies all the •€*
vi . atjd words* uwi'n-
1(1 : ' ^^** Majesties Ad -
viH^aic louk itjsiriittii^tiUij and refM^ited his Can-
ft-R-^i^in, TTiatJe irr prt^fncc of the commissiooerB
<)i '% as a probation of the
It 3St hUD,
His Majesties Advncat adduced agaioat Sf r.
rfValter Htnitli, tlie Probation uuiJer*wreitten.
^' - fyaeint of July, I68h In
liifi foyall hi^'hues,
bifi ma-
lords of
tb«liAf
aoiweri, he
EmNCT
k'^ i„ ...p,ii commissioner, and
hia ini«)estie*s [jriric councill.
The EauMc^ATioH of Mr. Walter Smitii^
PrJBoiwr.
Mr. If a/ffr 5vu7A» son to Walter Smith*
m the parish of 8t. Nineans, in Stirlin-
tshyre, h<Hng intero^at howe long^ he has
beio a frequenter of Mr. Donald Carg^ill, his
ct)inpiniy, and has heard him in the tields,
declaires he hiis heard him seviti yean agoe»
Qird si'veralUymes witliin the«e twelve nionetb»»
and heard him at Devan Murr,kt3iein Fyff.
|i«i(i|j iaUsiTi^gat if he was at the coD?eDtkle at
TorMt^9ik/eaS, in (X-toher, 1080, conJesacftbe
irif tber, confesses, he lieard the kinir and his
roynl bi|^tMs excomunicat tber. Being in-
t#rtf|pit it be waif at SaiH|tikar« wher that de-
•lifftlioft wa3 emmitied, at ihn croce thereof,
r efuaes to a n« wer . Bei n (^ i u t er«§fal i f be tl lin ks
tIawfuUto ryse iu amies againtit the king^ or
bis iiHthoritie, upon any preuvxt, declairea, he
lliiiiks it not Uivfull t> inst law full au-
rilie. ikin^ iuttTii v nes the kiiig*s
Alliuriiie, mi liiai n>» uiuuintie is lawfiaLl,
cinirea be caiiool icknowkd^^e the ^retetit
Hiiilbori^^ Jiae kiti^ m tiowe juv4^t42d with, and
thd eBUffiwtbMtof, being' now iovestiNi widi a
9UpreiBa«siii ^rer the cbnrch. Bein|f inlsro|rat
^^ I • vv'UJi «i Bothwetbrid;^^ relii»es to uismer.
l>nl^ intcrog:ate when he snw Jamea Rui«vtt«
i>iie ol rhocie waa at the kiihng of the arcb-
iliopol Ht Andrewfi, det^laires^ be law him
i Coor«tilicle^ latlie ai DevaA Muir. Con-
that about a twelve mooctb since, be
^^v V ' r Kiuloch, in HoiUmd, deekres
yKiu, who ia aaid to have b«in
fti iht m^^uu- ui the arch- biihof of Sk AndretiPiy
but did not see him laltie.
he thinks the kind's fatlm^ fr^nlbt
louses him from liis obedivtioe, and
loses thereby his authority, b<
thinks he is oblcidged la qWj ,
the duty» id thui cofeoanii' i<
word of Cud, and the king is o«
in the termer of the cotmant
pitt, if he thinks the cxi>
kitt^ lawfull or not, he
BciuGT interoisfal bow«» he \\k
of the kini^^« eicomrniitiieatiun
thlnkfi the rfa^on was jusi, * nt* Li»ppic n*
Car'^iU'a u«'rm<in being nroduc^nJ. and FMta
him » which he p reached at TorewooH, btli#
part tbereoi; which l»ears ibcice words is Inf
one of tbe reaM>ny of ibe kin|^*s rjc«intiiiiiiiii»
mtton, viz. ** Because the l^g^ is atil! worliiif
for the commanding of arme», tti 4f^rt»y tlii
Lord's people who were standing in tbeir ««•
defence, ttir ther priviletfges, and rigbts agiiMl
tjTranie, oppression, and iojunes (if imtkaal
tor the hU>od he hfts sbtd in fieldp. atid tm
scaflblds, and on the seas, of the pt«ii
upon the account of relieion,*' bt-
same as a just rround, nnd r<;aft<<n
nicfttiont and thinks the excf^n" r i.
the reasons thereof, ■•"'^*'
by this, but mne i
Being inter«»gat if 1.
arch-bishop of St. A
chnes to ans^ver, and <
ed to judge of the uctioni ni other ui
interogat \fhir- nttite?> thr^Unv;^'^ ^%xf^
the council'
is 00 we ev
thoritie i\^
▼ested WJ'
terogat if
power of
mentSf dt*«i.»T
as it is nowe r
sboitld owne th< -»
Sic Suhtcribiiur,
vj
idi«*aiurir.
or if
IMHV HUUflKlit
he sbovML k
, -vvav of bis OfSfiehC
C.MAnijkNi>. tf,D.
Edimburqu , die 19 July 16«t. In preacDCavT
bis i^yaj big hues and lords of eouittim
Tbet»aidMr. Walter Smith, bring; ngmm^
ed ami interogat, if be ov. i'*jicr
Canfiil's Covenant^ and t nifs
puntained^ wUI mil answer, V
he uv^ne« the Uet'taraiion at
I .1... .-:.,.,:. 1... therein cont^'-r^
rtad to hi
• ,;., ,....:..n <»- "-'
! thai lu' (iot's «i
llif f.-, infill rt|
H they call
■;'.!»» wher it s.;^ ■■ .. " ^^' '■ '' ^
I have Urm denudit miuiy yoiuna agttr« |i«r Ai
reasons thereia specifU ; he does ool like lU
word denude, but say ft, tltat wbat the kof
hade done should justille the petprpWs rttolbflf
againt^t him, and eyc<|)t as to tnal ftfK ■* **
the declairmg of ware, stys, be do«s ootkftev
jftbsj w
'Ofttf
tarn
ir>ibi
STATE TRIALS^ 93CeaiiL£S IL lSSL-/or Treason.
[S90
W4re» and thioks that tbtHiy ihej inieodU only
, 10 justtfie the kiUiog of ^uay tbt; km^^M forces
tttber oi^ne defence, that JiouUI have asumilted
tHera, IfHUit t>tlirrway^^ it nui^Ut bave beiti es*
teetiie«l niuniej'. As lo tbese wc»ril», wber it
Cftlk Ibe king atie usuq»er, auil t^iTAnc, \ie tie-
daire* he kuowes cetiaialte the king^ is an
tiMir|ier, nnil wisbf^s be i%er aot a tirraut. Mr.
W<er 8uuih toi^fesses he owneth the printed
paper, calkii tUe Ueclarattoii at batiqubar, and
dityrtt the wurd deouile, meniitmed iti bis
Coolfiisiou before the counciU, (nay sland, aud
dpr (aires tlic kiug is aae usurper.
CharkM MaitluTid, ot UalUiun, dep«DS, Tbal
llie paptsr cociiainin^ Mr. Walter ^imilb's de-
damtioo beitir tbe ci»ttcicin u|>on l)ie fyt^etut,
■ad nynleiut uf July inatJint, is trutli, hi» lurd-
ibip as ibeu presiil^nt of tlie counoill, having
■Mitaiitied, and the said Mr. Waller made an-
liWii to the Hauie aj> k inentiooed ami cofit*io>
«d in the sarne paper, tknd tbis<4a the truth, a^
luall aaawer iw Cit>d,
i/gA St anion , uoder dcrk to the couocill,
Dns c<mf<irniis to my lord tbesaurer deput,
► Mr, Smith's dtxlaralioDs belbr the couucill
\ dayes therein mentioned, that the sanien is
Ih, and was wreitten by the deponent at
file cotincin table, and this is the truths as hu
fiudi answer to Gud. Hugh Stevens o>r.
Hifi Makitjf^s Adtocate^ for
t WilUi "
ProbttlioD
Inst William Tho rasa n, and WiUiam Cool-
addaced tber owne Confessions uiidef-
iCniGHi the \2 July 1C81, In presence <^
the Committee for Publict Affairs.
Nrraiit in Frnsk« in Stirlinsbyre,
I was at Botiiwdbrid^e, but has D<yt
fclie bond, nor will not take it. Canfasaes
psied lo the taking of two piisinMra forth
' i imf»ri«oned by Airth, keiiir ittlerogat
iftlM ryaeiojif in annes at Holkwwridlac was
a nbetnoa, or if be owncs tbe kio^i auliioritie,
he ttunks the kiUing of the Archbisbsp
a loarttier, refueea to anawcr theaa ^u&h-
aod T«foaea to si^n^e tUa liia dedaratioa,
aaked if be thinks it kwful ta kill the
af the armyt be »»eired at * the c«iii-
tf it was laVtull m them to kill the
■Jlpople of God, aad biy the ont to the other.
iltia% aakad if to fate his lyif* he wo«ild aay
' «a»e the kiag, f ass w era he will not buy
lytf al so t^edx a rata.
Sk SttbtcribUnr^ Lixijtuoow.
BiliXAR&BS» R. MArrLAMD.
ELPIflTVSTON, A. RaMSAV.
«V U IK
Utaav
I
^ ' Asked of.* Sec in Jamieaon's Etyaao*
DMonary die artidca ' to aptare, spvir^
Fbanlainhall toK 1» p. SIZ^ of his * DecU
na,* mj^ iMer 4ata, December 9tK 1084<
-M Al Crtmioai Court, tei»of tlieae wild Wail*
H'l/^JM Coothili, seaman in Barrowataun*
nea, csonfoasea he was taken by liome of iha
earie OI'Mar's meOt with two pi&tollii and a durk,
about htm. ^eioc^ interog^t, if be thinks it law-
ful to kill the kin^, answeni the king baa
broken the coved ant, and presses other persotis
to doe it by his forces^ ana therf^r he tliinks he
deserves to dye, and disownes his authoritie
ujion that aecouut, and confesses he c^De tub-
serybe bat will not swbscrybc tbis his deda*
ration.
Sic SubscriHtuTt LiiamtGOW.
BALcAaaES. ^
R. MArrxA?r9.
Jieiag farder interoj,^at if be thinks the i^er*-
sons tbut killed the ai-cbbistiop oi'Ht, Andrews,
did right or wrong in it| tleclaires b« ihiaks tba
persons that did it, had the gbry of God belton
tber eyes.
Sk Subseribiiur^ Linuthqow, I. P. Com.
The saids Wtn. Thomson and W^UHain
Coothill being^ called befbr bbt royall hightiefy
his majesties high commissioner^ and lords of
couQcillt do adher to tber former tleclarations,
emitted l>efor the coinmittie, and farder the
sold William diothill saves, that not only the
king deserves to dye lor breaking' the covenant,
and pressing others to do it, but becaitse he has
caused take the blood of many upon that ac*
count, and both refuse to sigue, albeit they con-
fesse they can wreitt.
Sic Subicribitur, Cm. MAnXAjro, I. P, D,
William Thomson and Witliam CoothilL
prisoners, adhere to tlier former cnnfessiatti
emniitlfd in presence of the camtBiUie of comi.
rill, ao^ diatAfnes the iioff^a m^iosue and Iris
aufthoritie.
Efter leadin;^ and addiiceing' of tbn whiT!;
Probation, the Lords ordained the Assyse to in*
close and returne iher Verdict^ and the saids
persons of aasyse having removed altofi^ether
1 urth of court to the assyse bouse, wher having
reasoned and voted upon the poynts and arti-
cles <»f tbadiltay and probation above wreitten,
adduced for feritepg thcfaf, aiMl beio^ tker*
with well and ryplie advised, Ihtj r«-ealcra4
againe in court, ami petatacd ther Vardscl in
pceaeaee of the saidi loods, whtaoi tkm Irtior
ibUawes;
The assyse alt m one voice he tiit Vivulii af
Willtaiti Duubar Chancellor, iindi Mr. DtwM
CargiU and WdUaaa Tfaanaa gailiy ef haiiif;
at & rebdlion at Botbwel-hiid^, ami of tliar
traaaoBiahliii dediaifif of tli« krn^'a aiitharitBe,
M% are pinidWd far miktrimg ta
? hia tmtjbnrkv, Bis of Ihcm natre
country^
theki
for diiioifif 1
so wiae aa tmrailn ; the oihar finir ware ao-a
as to deny to say, *' God sa?e the kittf r' three
arouUI ha«a dmtm ia, but 1^ riia pcsttknl •aciet]^'
«riti« fiNiPlh mm eMared; «a aJl Ike ft>ar
were aenlctioed, and hangetl thai sama ds^ m
tlw e^hwherh^mmm 4 usd 5 a'ctooK it tli»
aftemoon/*
891J STATE T1UAL8, S3 Chaelbs II. l681.--Trid/o/Ctfrgf»«iiif of Afr#, f89f
and also finds Mr. James Boig, Mr. Walter
8niitb, and William Coolhilt, ^ilty of the
owiietiig oftlietreamnable principles meniioDed
in the treasonable paper called the Declaration
at Sanqnhar, and of declining the king's ma-
jest lea authoritie.
iiic Suhscrib, Wm.Dunbai, Chancellor.
£Acr oppinin^ and reading oi'tlie whilk ver-
4LCt of asbyse, the lords justice clerk and com-
missioners of justiciar}' theribr be tlie mouth of
Andrew Cuuinghame, dcuipstcr * of court,
decerned and adjudged the said Mr. Douatd
CargiU, Mr. James Boipf, Mr. Walter ISmitb,
WilUam Thomson and William Cootbill to be
taken to the market croce of Edinburgh, to
morrow f being tlie twentie sevinth instant,
betwixt two and four o'clock in the efternoon,
and ther to be hanged on a gibbet, till they be
dead, and therefter ther heads to be severed
from their bodies, and the said Mr. Donald
CargiU, Mr. James Boig, and Mr. Walter
Smith's beads to. be affixt on the Netherbowe,
and the heads of the saids William Thomson
and William Coothill to be affixt on the west
port, and ther names memory and bonoui*3 to
te extinct, and thiT urmcs to be riven furth
and delate out of the bookes of armes, suae
that ther posteritie may never have place nor
be able hcretiter to bniclc or ioyse any honours,
offices, or dignities within this realme, in tyme
comeing, and to have forfault, ammitted, and
tint all and sundrie ther lands, beretagcs, tene-
ments, annual rents, offices, titles, dignities,
tacks, steadings, roumes, possessions, goods
and gear whatsomever, pertaining to thtm, to
our soveraigne lord, to remaine jterpetuallie
with his bighnes, in propcrtic. Which was pro-
nounced tor doom, aud wherupon his migesties
advocat asked, and took instruments.
TuE L.\sT Spelcii and Testimony of the
Ulv. Mr. Doxald Cargil.
** This is the most joyful day that ever 1
saw in uiy pilgi image on earth ; my joy is now
begun, which 1 see shall never be interrupted.
I see both my interest, and his truth, and the
Bureness of the one, and the preciousness of the
other. It is near thirty years since he made
it sure ; and since that time, (though there
has fallen out much sin, yet) 1 %vas never out
of an assurance of muic interest, nor long out
of aiffbt of his presence. He has dandled me,
and kept me lively, and ne\'er left me behind ;
ih^offh 1 was oft times turning buck. O ! he
has uiewed the wonderful preciousness of his
Kaoe, not only in tlie first receiving thereof.
It iu reneiica and multiplied pardons! I have
i a man of great sins, but he has been a God
* See the Case of lord Loudon and others,
A. D. 1684, and Mr. Hume's Commentaries as
there cited.
t See the Case of Hackftuun of Rathillet,
p. 791, of this volume.
of great mercies. And now through his mer-
cies, I have a consdenceas WMind and quiet, as
if L had never sinned. It w long since I ruuld
have adventured on eternity, through God's
mercy and Christ's merits ; but death rr-
mained somewhat terrible, and that now if
taken away ; anil now death is no more to me,
but to cast inyNelf into my hosband's snna,
and to lie down with him. And, however it be
with me at the last ; though 1 slioald be
straitened by God, or inteirupted by men, jct
all is sure, and shall he well. I liaVe foHowsd
holiness, 1 have uu^ht truth, ami I baTebcci
most in the main tilings ; not that I iboagbt
the things concerning oor times little ; bat
that 1 tbonght'none could do any thing to [•vr-
pose in God's great and pnldio matters, till ther .
were right in their conditions. And O that all
bad taken tliis method ! for then there Ind
been fewer apostacies. . The religion of tkt
land, and zeal for the land's engagements, in
come to nothing, but a supine, klathsonie ud
hateful formality ; and there cannot Iw ml,
liveliness and nghtneas, where people nicct
with persecution, and want heart renofstioa.
My soul trembles to think, how little of rege-
neration there is amongst the ministen sad
professors of Scotland. O tlie miniilen of
Scotland, how have thev betra}'ed ChfiSl'siB-
terest, and beguiled souls ! ** they have not co*
tered in themselves, and tbem tliat were ca* '
tering in they hindered." They have sold the
things of Christ, and liberties of his church, ftr
a shoit and cursed quiet to themselves, whkb
is now near an end : and they are more odTi
and at peace with God's enemies, after the}
have done all their mischiefs, nor * they were
at first, when they had put hand to them. Ad
I much fear that Uiough tlierc were not mi
minister on all the eanh, he will make lo
more use of them ; but there will be a dreadful
judgment upon themselves, aud a long corn
upon their posterity.
'* As to our professors, my counsel totheiB if
that they would see well ti> their own legeoc-
ration, for the most part of tbem has that yet It
do ; and yet let never one think, that be is ii
the right exercise of true religion, dial huael
a zeal to God's public glory. There is a smsH
remnant in Scotland, that my soul has Ind
its greatest comfort on earth from. I wiifc
your increase in holiness, number, love, reli-
gion, and righteousness ; and wait you, asd
cease to contend with these men that are ^osf
from us, for there is nothing that shall coovmct
them, but judgment. Satiny your conacieocVi
and go forward ; for the nearer you are to God,
and the further from all others, whether stairi
enemies, or lukewann ministers and professoiSi
it shall be the (setter. My preaching has ucca-
sioned persecution, but tlie want of it wiH (1
fear) occasion worse. - However, I btn
preached the truths of God to others; as it il
written, " I believed and so I preached," and I
* See in Jamieson's £ty mologicnl Vk^immf
the words nor and na.
STaTK TRULSv 33 CHAai.
Rve not An ill conscience, m prencbin^ trutbi
»h«tever bas falloivefl ; unil lb is flay t am lo
«al t»itb my blood alt the truths that ever I
H^cscbeil : »n*l uliat is eon(rov«rUd nf that
ibicb I buvr been prufessini^, sbaU (ere Ititi^)
lie uianib^s ed Uy Ciml's juilt^ineiits \u tbc con-
•c»€tices wf mfti. [ bad a sweel ca]iiin«&8 of
, and g^reot siibiiassion as to my taking, the
tivideuce oITmhI \»as so emint^nt ill it ; and I
ijubj not Imt thifikt that C;n4 judf^ed it iieces-
rv for his ijflory to bring lue to such an end,
he U*09td me from sutdi a work. My
L woi^ld be exeeedin;4^ly troubled aneat tlie
bftiit, were it not that I thiuk ilu* time nil!
?Slkorl* Wbertfore bobl fast, for thif in the
my that i$ now persi^cutcd.
** Ai to the eausf of my sufTeilug- ; the main
** not ailtnou lei^jjring the pre^eot authority/'
~\ is estaldished m the bUjtremacy and ex ■
lion' act. I'brs h the ina^istraey that 1
* rtjected, that was invested with Christ's
fKmer. And teeinj^ that power taken from
Cbrislt nhjcb ts bis ^lory, made the essential
^ ofthecTOwn^ 1 thought tbi» was as if I bad
seen one wearing my husband's sfarments,
^ aAer be had killed him. And seeing it ia made
llje essential of live croHii^ there \s no distitic-
^^tioQ we can make, that can fr^ llie conscience
^■■•f tb« ackno^^Mgor, from lieing a partaker of
^'^ thiM Aai-rileigious rubbing of God» and is but to
_^ cHtat our conscience's^ to iickiio^ [tuig^e the civil
jwwer, for it is not civil power onl^^ that ia
' t of the essence of his crown ; and seeing
^ ve ao expre&i, we ought to Ije plain, fur
rise it is to deny our testimony, and con-
fio bit robbery '
** [Atler be waseome totbcscafTuld, standing
. wiib His back towai^K the ladder, he fixed his
$ye» upon the multitude, and desired their at*
QitioQ ; and afbiT Ringing a part of the cxriii.
atmi from the ItJth verse to the close, lie
uked up to the windows on both sides of the
caflTohl with a smihtig countenance, rctjuesting
people to coinpo»e ibemseUes, and bear a
^ftw vrords ibat he had to say, which] (said he)
I lihaU direct to three wttrhi of fotk, and shall
«tideavour to be brief. First, all you that are
Ifoing on in persecuting the work and people
of God, O beware for the Lnrd^s sake ! and re-
frain from such courtes, as you would escape
•rratb eternally, which will be a torment far
beyond wbal we are to endure bv tiie hands of
crud and bloody murderers. [Upn this the
ilrucaa were beaten, at wbrh he &mibng said,].
fM>w ye see we have not liberty to speak, or at
ioaat to spcwkwhat we would ; but God know-
etji our hearts. But^ O ye that are called mi-
jasters, and professors iu the church of Scot-
land, \«ho are wearietl in waiting upon the
J<4»rd« and are turned out of bis way, and run
into a. course of gross defection and backsiliding 1
tryly, for my part, I tremble to thiuk, what will
iMscttmeof you^ for either you shall be punished
wtlh mre aiflictioii, 1 mean^ in your eon-
My«(ice«» because of gin, or else you shall be
I lomiefited etemaUy without remedy « which
^^ibaJI be abortljr, if mercy prerent it oot, wbi«b
es IL iSsi.^/or Tn§mh [804
f pray God mav be the ^nercy of all thc^e ta
whom be has inougbr^ of [M^ace. Ail ye that
are the poor remnant, who feur sinning moro
tlian sufTering, and are hegf^iug for bis retnru-
inp^ to Scotland to w^ar hii own crowij, and
reign as king in Zion, in spite of all that will
oppo^ie him, wheihcr devils or men : I say to
you that are thus woiting, wait on, and' ye
shall not be disappointed; ibr cither your eyes
shall see it, or else ye shall die in ilie faith of
it, that he shall return ; and ** if you sutTer
with him, you shall also reign with him,**
which reign will be glorious and eternal. I
come now to tell you for what I am brought
here to die, and In r^ro you an account of my
faith, which I shall do sj) in the sight of the
living God, before whom I am shortly to stand.
First, 1 declare I am a Christian, a Pro-
testant, a Presbyterian in my judgment, anJ
whatever hath been said of roe, 1 die tci^tifvinr
against Popery, Prelacy, Erastianlsm, and all
manner of defection from the truth of God, and
against ail who make not the scriptures, which
are the word of God, their rule, that so ihej
may commend Christ and his way to strangers
by a holy and gospel conversation , The cause
for which 1 am sentenced to die here this day,
is my disowning of authority in the unlaw Jul
exercise thereof when they instead of ruling
for God, are fSglaing against him, and en-
croaching ujion hs prnrogatives, by that woeful
supremacy which my soul abhors, and which
I have testified against since I was apprehend-
ed ; and now again, 1 disown all supremacy
over the conscicDCes of meti, and liberties qi'
Christ's church. [Whereupon the drums were
again bc^aten, and be kept silence a little, anU
then said,] Of this subject I shall say no more.
Only I think the Lonrs quarrel against this
land is, because there has not been so much
heart reUgion and soul exercise among either
ministers or professors, as there seem^ to be,
when the land owned Cbriiit and bis truths ; I
wish there were more true conversion, and
then there would nut be so much back- sliding,
and for fear of *ufft;ring, lifing at ease, when
there are so few to contend for Cbri^^ and \m
cause.
** Now, for my own case, 1 bless the Lord,
that for all that hath been &aid of me, my con*
science doth not condemn me ; I do not say, I
am free of sin, but I am at peace with God
through a slain Mediator ; and 1 believe that
there is no salvation, but only in Christ : and I
abhor that superstitiims i*ay of worshippiug of
angels, and saints, contrary unto the word of
God 5 as also I abhor the leaning to self righ-
teou^nes"^^ and Po^^isii penances. 1 blese the
Lord, that tfiesc thirty \ ears, and more, I have
been at peace with God, and \va$ nerer shaken
loose 01 it ; and now 1 am as sure of my interest
in Christ, and peace with God, as all within this
Bible, and tlic spirit of God can make me ; aod
I am no more terrified at death, nor afraid of
hell, because of sin, than, if ] had never bad sia,
for all my tins are freely pardoned, and washes
thoroughly away, tlirough the precious blood
I
I
I
I
iJ
with ymi, that yc* tske 9r>rfi« of fotrr time, ti
set It ajMirt p»i
blt^ssmg;' and ;
God, for the Joi i,
out for Yonr \m»<
time, and *'^ "»/»'""
mtnt o4* ]
incoTOprt^. -;
ing", wisdom, |
ant! tnith ; ano
a man, and a Clintilian
ncM,jB3<k»,|giriMi
ttiae 00 iMlb naiitt
•n4 now I f>«< td »f
93] STATE TnrALS, 33 Ch ah^.es IL 168 1 ,— 7H^^ ^ Cifr^/ amd tfikeri.
md intercession of Jesus Christ ; and 1 am ftilly
itaitei), that this is hi« waj for winch I
tliuffer, aad that he will retnn> gloriously to
>tbiid, but it will be iwrifyingf to many;
We I entreat yoti, be not (liscouraf^ed at
way of CbrLst, and the raus^ for which I
to iay down my life ^ ami st^p into eternity,
here ray soul shall be as fiitl of him^ as it can
* to be. And now this is the sweetest and
i:lorious da^ that ever tny eyes did see.
aw ) entreat you^ study to know and beliere
e sciiptures, which are the trutha of God^
tfic 1 nave preached, and do firmly beliefe
leto. O ! prepare for judgments, for they
be sore and sudden, Knemiea are now
against the way and people of Ciod,
t ere long' they shall be enraged one againist
notber, to theii'*owu confut$ion> [At tbi!» the
^nms were beaten a thini time. And then
eifi^ taken to tlie north side of the scaflbid, he
oda iiitte during the space that one of the
was singing. And tnen being carried to
pe south -side of the scaffold, he prayed,
hence be was brought to the east-side of the
aflold, and then he said,] I entreat you pre*
are jou presently for a stroke, for God will
Dt sit with all the wrougia done to him, but
'will suddenly come and make inquisition for
the blood iLat has been shed in Scot J and,
[Then he was conunanded to go up the ladder,
anil us he set his foot on the ladder, he said,]
The Lord knowa T go up tlii^ ladder, with less
fear and perturbation of mind, than ever I en-
^lere<l the pulpit to preach. [And when he was
"^p, he set liiinsdf down, and said,] Now I am
pear to the getting of my crown, which thai]
" i sure, for 1 bless the Lord, and desire all of
^ ou to bless him, that he haih brought me here,
and makes me triumph over devils, and men,
and sin ; they shall w^ound me no more. I
tbrgtve all men the wrongs they hare done to
me, and pray the Lord may forgive all the
wrongs that any of the elect has done agaiust
liiEi]. I pray, that sufTarers may be kept from
stQ, and helped to know their duly- [Then,
haviog prayed a httle within himself, be lifted
up the napkin, and said,] Farewell all relations
and friends in Christ ; farewel acquaintances,
and all earthly enjoy menU ; farewell reading
and preaching, praying and believing, wan-
denngs, reproaches and sufferings. Welcome,
Fallier, Son, and Holy GiiQSt, into thy hands I
commit my spirit."
Then he prayed a little, and the executioner
tumetl him o?er p raying.
TH£ D¥1N6 TgSnSKMfT AJVS LasT WoRDA Of Mb.
Wmwi Smra, i^mmsKt of TuEouHaY,
Wll^ SI7ltiRII> AT THfl GttOU or £lltN-
iMMi, July ST, leSL
** Dear Fneods and Acquaintances,
•* Am I dlesire while in the body, to sytiipa-
tkfze flDtnewhat with you, in lameulmg your
rarions cases, and the case of the church,
whereof ye are the sons and daughters ; so f
must lay this request upoo you, and leaf e it
seal to al) hts truths^ revealed in hts wiinl, awj
particularly these. Vurnt, That Kc m m»t fnA
Father, 8«in, and Holy Gln^it ; iNit ala^ * wi^
can think of him T wnn cnn bcsir
write of him ariglif ? Of he is God
2dly, That he made man pttkrt ; an*! \UD%^a
we hare destroyed mni bcuffteilMe onradtoi*
do any thing lliat is right •*^-"*- -^tt i»f Ckiiii,
yet we are nwler the <*i J tb« wln^
law, which the (lerft^ct 1^:4 ... *^hi#an«if«<
3dly, That my LortI (jea, throustl free pwat,
1 can say, my Lord Jesus Chhsi) eaine l^lli
workl, to sere sinnerai. And thotigli i
say that 1 have been the greatest of
yet I can say, that he Iwilh coircf^ed,
prevented, and bid from the wwrW, fliii|i«i
that have been lieinoiis by tnatiy affi^vfta*
tions. ithly, That enoepl a niaa it ham
again, be eanndt rtii the kin^ittmd
Heaven ; my frieri' tkm mm IM*
this is the regeneraiKPn iif,ii I am sf^dil^
of, to which the grrat imrl rren isf |mfti'
sors (I fear) will h** Iomh*! ^*r^n^:rr%. 5Ehif,l
set to my seal to thu ^ if preekiai p^
misCfJosh. i- 5* *tc , tft'K. xiii. 3. fm
he hath said, *' I wiH newr \emve ih«p, m
forsake thee," together with all iftie oilier w^
mises to that pur|»06e ; aiHl I am flitre, lar bl
carried me tbmugh divers eoaiditiana o# IHr,
many various and aingnkir diffiouttioi sol
damping dLscouragemetifi : but otmiiiag thai
things wheretvf the pro^e pgiaecmcrt mqr
as much boast aa to the fratward as lajp, W
bath led me through the aetery atffpa fiT^Bil-
exercise, and the pangs of' Ui# new blrtli. «l»
himself This, *^-- y^r friemls, is tb* PCfri
xancse and di^i a chaF»cierof aMlit
indeed : and by 1 . , -d ihts only^ ** Wmfm
irom death to life."
**■ And as t adhere to tlie ConfevM ofFadi
and work of refonnatioii as 1 ^li*il gfkjprw^
sneak to ; 90 particularly, 1 aet to my mtA n
toese truths in the xrii. eho|Her thereof, aaoa
the assurance ut^ grace and saltation. Akt'
the ignorance of this gcoferalien fa great M^
dear friends, I leave Uiia ws my last mdna »•
you, make use of that book wiiidi ckidIuiib m
Confession of Faith; Catadtisnis, SomolSimi^
Knowledge, Ptucticd Use of ftKrinff liooir-
Mge, Directory for Wtifshtp, thr CaiSBes «f
God's Wrath, ^\ And let aoiie think this mmk
lielo w them ; for the spmtnalottltgblaiii^^ftii
niiiid, which reciuires the Uterat wtUt il, irii
first work of tijis spirit, after wc fin* bcftet*
come to onrselres, or rather to wbait w^wm
in iDDOcencyj «nd ought to be by gnoe. ^rt
I
rj STATE TKULS, 35 Charles II. l6BU^far Tremon. [8
Ibis, 1 df) coiiflfkntly rKt'er you to iht; | w hm I could I earn) ircre UcttttyfNl by none, nor
itriV' ^-^ •" 4 t, i :., ...i, » yr;Qf were nil V accessary to our t '' '^'i-'e tbnti
,,. .Ik*
iifie of
■ : '\ rove-
iith the h(mi, my npint that
Avj\ hpre 1 leave my tes-
'•^ctilatire (i1 rWre
111 all ififK'keni of
. UEul hy|K>rnt«?s, qua-
^i.i either pretend to the
>td, ur It^ati i'
I but by \<r|i3u in M MM I
si aui b<)1il u» helifve
w -L.. , w^ testimony is a t^ruuiul
J tititt lhL*r«r;iii bt! no deoeit tinder it.
r tjow 1 uin to ilje a miirt\r ; nnJ I lim
Irfblly pcpjimlrd *4 iii) iutcreat in Chrivt, nm\
lltH be hurii «'ouiitn*unc€ti me in Umt^ tor
thkb 1 mm to liv duv\a uty lifi\ jis I am of
ftyMoK A'>«' 'H thf worM and hiaiist><i pro^
lam hc*rr in no de.
pcessary I
I we were oiirseh'*'^', nn*l ]r
I blamf the ia«ly Si i l,,v^t
no lime to 0ve \
! kiodiiessaiid te<i<1«
let ntmn
I hnve
' Lorff*
iniiiif the
ajfersaries fur\' ; for ihey hegau very hrisi, hy
makiuif u>i ly ;iU nij^ht hounti, anii expressly
reiii9»eil to suffer us to wornhip ^finl, or prsy
with one auother, untill we earae to Liolith*
gow. But the LonI htisteuelh to come, be-
wme of fTuiug^ baelc^ wait for huii, be tiotatt*
^ aUiul uhut s\u\\ become of you, or a
lit ; he IS coi»ccrQeil» \i\Ji intercessiou n
..,t,.^i' ■'^ ">-♦ ■ '"^ • t upland kept up in bts
o^vn i<.< y^ and other thint^ will
he the L . ■ , .. J L iu theirs. Be tendir of
all who have the root of the matter, but beware
of cnuipi jjice with arjv, whether miniaters or
jr Aato myjiid;j"ment
I ti . iieces&itale to refer
I you iu ihu diiLUghi of a p^iper, wbieh 1 drew al
I (he deiii re of some societies in Clydesdale* in -
I tituled, Some steps of defection, Ace. Beware
id fuU eXi^'tiiHe of tl^u- | of a aptrit oi'hitlerne«is« peremptoriuess, aoil i^*
ro free ot [ i d
1'^ tliia I lit <>
^ 'I'f^and Iu* > , . .n i*^
ly hviLRg ; go tliut
liir. T :trik ^^hdty
is the
iipud which
i deMrcd po-
untli'r the
'd
VVlietlifr 1 owo-
u-* til' l^ mifstt^
I to Christ Jemts
" >t ibnt at fimt be
I and aowoni n covenanted kin|^f
" ! •worn io uJJe^mfjceto htm, as
Sc 8olenui Ijeugue and Covenant f
9m tbe authority >*herevvjib he was
and the exmnse of it wa« to lie for
ipion, and Lite ifood of tb« subjeeta ;
i all this, a5 to God, aud bis people,
and perverted? But adJy, The
Tiiiia pl^mdcti loi- ,-inlhorily at present,
ibbod oa the ruins ot the liiiid's enji^ag^-
ntirautzeal, which huth been the ruin of nsome,
and wdl be the ruin of mort-, it' liJercy prevent
not. I was withdniwti from hy soToe, iis hav-
rrtjf jfi?en oflenc« to thern hy my protfstiijg
against their way iua panicolart whereiu I am
sure as to the nmuner they »rere wruny^ ; ami
tboug^b they had l>eeii righti it w»ia not a ground
to httvt* made such a separatiim from me, much
[ lifia trom theae who joined wUh me \' And it*
^ any divifiton be longer kept up upnu thnt ae-
I euunt, they will find it a great iniquity, if
rightly con^dered. I can ^et no more i^ritten,
I nor aee I great need for it, for the testimony of
I martyrs in not your rule. Farewell,
From the Tolh<x)th of l^dinhiire:h, Jnly 'i7, 1681.
Sic Subunbttur^ Walter H5rtrra.'*
1^*'"' '"^^ ' -i'^ther: But I say
ihin^a seriously,
i for (jod u much
recover it ; yonr
\ ; though ChrtiJt't*
(I aet;) m the only aure founda-
Most malignancy,
nd wh«t*otn<'r in
"rtueniu I
[ ieat^Biy le«t
9t U» aottuii 'ti
i %j tb€ f«lbrfn«d
I |«rty ia Scotland,
pC«lemor« being fully s.
wilb tny IaU And ai to *- . ,.j ;. .
jti^f ^^ pwuaingulaily dehvered by Pro-
iialo tJiii ad^tfntinvi luiodt And (tor
Being come to the scaffold, be accosted the
multitude to this purpose. *' All ye beholdersi
who are come here upon varioun dt^igna, I
entreat you, be not Tniataken anent the cause
of our su Bering this day ; for however ye
raay be misinformed, yet it is of verity, tliat we
are brought here upon the matters of our God ;
becauiie we testiHed against the supremacy*
and would not consent to thp setting of Christ's
crown ui^jn the head M' him, who had by uhuV-
patjou aspired thereto, contr«ry to his Ibrmer
engagements/* Upon this they canned beat tlio
drums, which ohhifed hitu a httle to sdeiK^e;
hut beckoning with his hand, he said, *' I shall
only say eomethrng to three |>articu)ani: aiid
firstf anent that which t»ime uru apt to believe,
that we are agrainst authority ; hut we d<^est
that, and say* that we own tilt the lawfull ex*
I j crcise of authority ; and we liopc there are
none, that are CJiriKtianv, will allow us to own
■' : liwtul exerr - '■ *.— .,^.,, ,.r.,,j,
'^ Atth. 't,
—.., . 4ieaunga pu.. . ■ the
begimiing, and praye<l ; Hluch done he tiirned
hiatace lu the cross/and gaid/ I blci^ tbt Lvrd,
3M
899] STATE TRIALS, 35 Chaelbs 11. l681.— Bt'tf/ (4 Carsitt tmi othen, {900
I am not surprised, neither terriiied with this
death, or the manner of it. I confess, tike
thoughtii of deatli have been sometimes very
terrible to mc, when I have been reflecting upon
my mis -spendiDg; of precious time, yea, some-
times the strength of temptation and my own
weakness, have made me herein to raze the
▼erv foundation of my interest ; but my God
builds faster, than he {term its the de?it and my
false heart to cast dowa. I have had some
clouds even since I came to prison, but blessed
be God, these are all removed ; for my God
hath said to my soul, *' be of p^ood cheer, th^
^ins are forgiven thee ;" and the faith of this
makes me not to fear grim death ; though it
be called the king of terrors, yet it is not so to
ne : . for this, thaik yon thmk a cruel and sud-
den death, is but an inlet to life, which shall be
eternal. Let none be offended at Christ and
his way, because of suffering ; for I can per-
suade ^rou, there is more of Christ's help, and
supporting grace, and strength in a suffering
lot, than all tliat I ever heardof by the hcariug
of the ear ; but now I am made to find it in
my own experience, and I can say, ** he is al-
t(^[ether lovely."
'* But a second ^hiog that I promised to
meak to is, tliat I detest and abhor all Popery,
Prelacy, Erastianism, and. all other steps of
defection from the truths of God, anil tura-
iQg aside to the right and loft band. Also I
lyestify against all errors, as Quakerism, Armi-
nianism, &c. and all that is contrary to sound
doctrine, who walk not according to the scrip-
turesy and make not the word and spirit of God
their rule to walk by. 1 have lived, and now
am ready to die, a Christian, a Protestant, and
a Presbyterian in my jiidgincut ; therefore let
none hereaUcr say, that we walk not by tlio
scriptures; for once Britain and Irclaml, and
especially Scotland, m ere deeply sworn to main
this th say in my own vindicstim, that (hoRb
ever 1 have been bomded by some, and mis-
construed by others, yet) I can say in the sight
of the Lord, beiare whom I am now lo appiesr,
that I am free of any public scandal; I say, I
am free of drunkenness, I am free, of wl»m^
dom, thefts, or murder; therefore let none say,
tliat we are murderers, or would kUl any, but
in self defence, and in defence of the gospsL I
truly forgive all men the wronp they havedoue
to me, as L deskc to be forgiven of the Losd;
but aa for the wrongs done to a holy God, I
leave these to him, who is thenvengiorof bfood,
lethim do to them as he may be ^oriftri.
Now 1 say no more, but pray that all who sm
in his way, may be kept from sinning ondir
suffering, and that every one may prapvs
for a storm, which 1 do verily believe is Ml
far off.
" Then stooping down; hb sahited som
ft-iends, and ^, larewell all relalioBs ssd
acquaintances, farewell all ycthat anelevcnof
Christ and his righteous cause. And beobon-
ing to the multitude, he said farewell abn. Aid
sohe went up the ladder with tlie greatest dis-
coveries of alacrity, and magnanimity, sad
seating himself upon it, he said. Now this doth
of mine. I fear not ; for m^ sins are fteefcf psr-
doned , yea, and 1 shall sm no more, ftf I sm
made tiirough my God, to look hell, wmA,
and devils, and s'm eternally out of oounlaDsact.
Therefore,' farewell all created enjeynHOli,
pleasures and delights ; farewell simuDg isd
suffering ; farewell praying and believing, sid
welcomie heaven and singing. Weloonejef
in the Holy Ghost. Welcome, Father, Sis.
and Holy Ghost; into thy hands! commit siy
spirit.**
When the executioner was about toaotit
hU cra\at, he thrust hiiu away, and ootisdit
himself, and calling for his brother, thrsir it
taui, what now they disown ; tlicrcfore beware j down, saying, This is tlie last token you wiUfECl
of standing in the way of others, seeing ye will from me*, after the napkin was drawn oferbii
not go in yourseUes.. My, I f'xhort all you lace, he uncovered it again, and said. 1 biH
that are the poor remnant, to tx.' serious in gut- one word more to say, and that is, to sll ibtt
^g vour interest cleared, you that are in the have any love to God, and his righteous csum,
the dark willi your case, take not fliishes for , tjiat tliey will set time apart, and sing a iosg
conversion; study a holy conrcrsatinn ; be at ; of praise. to the 1/ord, for what he lias donett
more pains to know the script iiro^, ;iiid lielieie my 5ou(, and my soul says, U» him be piaife;
them, be serious in prayer' hi i^ lit not time,
take Chri&t in his own trruu, nnd rrsulvft to
meet witli trials, and that shrrllv ; bliyht not
known duties, commit not known sli.s, uhat- j
ever sutferinj^ ye rna\ rnrtt with, lor your
eleaving to duty, Lip'pen to (Jofi and you will
not be disupiM)intcd, construct well olbiiu un- |
dcr all dis(>enstttions ; Wi>ar\' not of .suffering ; .
he not at case in h day of Jacob's trouble. I |
have one word more to speak, to all that are i
goini^ on in i)crsecuting the wa\ , aud friends !
of Christ, and that is the very wonls of our
liord Roflccmcr, " whatever ye do to one of
tiiet>e httle ones, ye do it unto me.** I nray
the LonI, that he may open the eyes of all tlie
eletrt, who are yet strangers to regeneration ;
and also convince such of them as are fallen
(jevm their Urst to> c Now, my irieuds, 1 have
then letting down the napkin, he prayed i
little withiii lMm)telf,and the executittner*iloiB{
his oiiice, tlucw him over.
TuK Last Tksiimony of Mk. Jimls DoKi
StLOENT uF TliCOLOGV, WHO SCFFUXD
AT TU£ C^O.SS or EUINBLRGII, JULT Vt
16U1, WRrrTE.N l«i a LcTfER TO ia\
Brother.
" I>ear Brothtr ;
*' I ha\e not now time to write that which I
would, but to satisfy your di-siire, and the de«
sire of others who are concerned in the csitfS
andwurk of GutI, that is now at i\m tisis
trampled ujtoii, 1 have ^ifMU out my indiei*
ment to a frimui of yours ; and now I sisl
give y ott an aooNuit of the enenks ^UK^mom
SnTO TRIALS^ 5 J CnMLts lU Je8l»-/9r fVfM^fv*
^«fiiiM niL Mjr liiJIgmeiii did rnn
n^ lf«ftaiiL 1st, 'flmt f liAtt V
in ■rOMVi fiotliwcH- bridge, wns i.u.
bn Ibe Mbnc^ of tru)«i. lidh , T1i
llbifittMlhtr rf •■-...
MaimMBi the ain
■ij f^lUf^ Slid Rpftkr
■MiM «r«i spokfii by
low^ fth thnt niir 'prTikm^r did, waj
»py,-
^ thp ftifn<^ jnd^eni wirti ut iThp?* -^r e Ih
tat df
iLii, 11.1 L- miu nn 111 !»'-. t..Ara[u tlOt
l*« jtH!§;ps of olhfT mens iictions: u<i to llie
■1'
r«M pre-
n in ehi*
♦iedareii
itaelt'*
it^, Hc are of i
M m their n^nrpit
t tfiiit
ed m<'
say, ihm '
out of X\\K
yoiiT swvi
with n\y
lit,
rtun
♦■Tit acln a;
' 10,
i^nr i?on-
*« never
'f thetjv, buith.ii which is
•nT. !f ItiHr s'riTinle «?rfen<»e,
■ and
as i*;v-
It ot
1^
... prci>ietit
oDlJv to the
W-, lo lie as
ir*Jc<J I I'fu-
|ivf ftMng jf.
» ilitrd, It liii <ia)
b« (iriit, 1 took lid
||iri|^itier, inO l« "1.^ '^'> »..^ iii^,
Kti#C!i^4s(t^ own (Hl htst yiflo. Ami as
if cfectBriu^^ uf irnr, 1 tM alwuir s look
ti» tn* ofii> and tiir Ramc though dif-
»i|nimiu<» with that Cflutained in tbe
at tb^ Vtrsy^ aud that tlie mam
i^ in WM, Vb f tiidicHie 11^ li«fore tlie
mm f«|icll4tif mijuAt viotencc, and
m^ thorn mfti^mm, timt ^fi»f<>(?«4(t
fi«, IlkrboMm^' ; th*
T ]irh tie acj^n^s 1 .ve
iH
tW'itt >» II w iirc
not
a|foti tt,
Atid now, der.r Ihtitfier, you may see oar
3oan'< 1 4f]i rl, lo bo tho same tlmt BT " '
times t Ml Um-fj hii head for; bestd
ill my other two friends head
Thore were many other thing
* : uxi me ntid 3Ir. Wilf
my,ri?getit, now counc
with th( I vv Iliope 1 maJI
m\ 4ied like a birl 1
'.:i:r Ml r!i.. ',,,.^1, ;/' Aod 115 t* J
! ''- I.. *M 1.. , -1... j,.^ tiow it wenll
1,^ hit re beenitit^j
It' to prison, biHf
f*l*»rv to Gud, who ii**iU not Ucen wantin"'
me m eri*inf mo osj*i»<**?mc^t yea, many tune
V , and he i- i sjiiiinj^. And
I do to the - y rite above th^]
'' >\> that I ni:i Ml as sweet a calml^'
Lig to b^ inarried to one dear
- ;.^. . ...^., my cold Ueai-t is not ahle
answ^erliis burnina' iove \ but what is want!n|f|
in II n'. IS und sh;ilt ht^ nuide Up in a 8a?ioifr]
he'd IH uh thiDg^K af>4 [
[ 1 a this end, to brin^j
\m »tiuv»oj* tliiiiJtcii to their own home,/
%vhenLor(I think I ntny ftilrenture to say iljl
I am one, » ' -^. Now 1 have na]
timetoeii .iM sfit^e Toti a mor6|
icnlaraLcoiuiT o! tioii ; , and deal*
vithnie; hut !el Ihi • liut 1 arU i
-Til t- fairly on the way, au" vnumi ihe^lew of!
Emmanr{er» land» and in hope^ to be receired j
an inhabitant there \%iil..n fin' ^mui^ of !jj^
hoofs at moiit. Fat- lortiL ^
liin well all worldly a I urnij |
s, wtlcomc dcaven and ercHastrng hap*
s, S!c, I hav« no more spare timel '
(jiur* ltd peace be Hithyon, Ameru '
V\ irjfh Tolbooth, July 57, ttJSl,
The TcsiiMONv of William Thomson, wir»
LIVED LN TiiF. 8niRE OF Ftri:, JHHD «ur«
I EKED AT Koi;tiBuaGU, JvLV 27 til, 1681.
** Mt'll find TlirlliienT
«* I l^iii adi
for my a«li'. . ' ftoa
I L of I'tic ir^tm heajtui^ wl
I jy Mr. Donald Canpl, th
bath c»f June, this present year; and i
111^ when 1 may be tuketi and mui
tht stated enemies of our Lonl, (fur
th^r walk atVer the e^piity uf their ou .
God'i lliw,) J hdre tor fear of iQoouv...a..Mi.,.q
90SJ STATE TMAU, 33 Crarlbs II. 1681.— 7Ha/0/Gn«ai Mid ofkri, £901
laid hold of this opportunity to set down, under
in^ hand, or tiroin my mouth, an account of my
lite and convi'raatinii, iind my testimony to the
truth of Christ, and a^fainst all the abomina-
tions of tlie times.
Testament, oontainhig the will of God Is
man, and anent man; and that ibe scrip-
tures are a full role of taith and maonen
to us. I adhere to the work of relbnna-
tion in Scotland, to tbeCovenauuNatioBal and
8olemn Lpa|;ue, the Solemn AcknowMgnieBi
-_ ^-_ ofsins, and Engagement to Duties, the Conies-
vokin^ courses ; and aboufrthat time, when I siun of Faith, in reirard it afrrees wKb the fuie-
saw the people of God goin^ todraw tOjErether said writioiifs ; the larger and shorter Cale-
to adventure their lives in the Lord's quan^l, j clnsuiR, as most seasonable, aound, and ac-
tlu* Lord tuok a dealing with me at that time, j coriiiii;^ to the scriptures, and well worth the
so that I i:ould neither get nij^it's rest nor day's ; n^:i::.<;, consiilerinjf and practising what is
*« I was, before the j'ear 1679, running away
with the rest of this generatkm, to God pro-
rifst, till I resoUrtt to go with them.- And on
the other hand, was afraid lest 1 should have
been the Achan in the Lord's camp ; but a^ain
I remembereti the Lord's promise, that isBeld
out in the word, — •♦ return unto me, and I
w ill retiiru unto vou, saith the lx>rd of Hosts,"
Mai. iii. 7._ NoiV, I do with all my heart bless
therein set forth. Isay, I adhere to the Kb-
thcrcrlpn T^timony, to the paper commooly
ralleil Mr. Oonald'l'argirs C^of^enant* of m
date of June 16C0. I adiiere to the ortgiaal
copies of these papers, as they were amnetei
and revised by the authors.* And likewise I
adhere to every sound
^ -_ ^ _ jind paper, tending to the
the Liml, for his w<»nderfull wmkuicfs with ] good of relisfion ; as tlie Directory for HonUp
me siuc'T he bt i*:an with me. I think j and Catechising ; and 1 adhere unto the dse*
when 1 look iMi his dealings since that time ; tiiue, discipline, worship, and govemmcat rf
till no^v, 1 ii.dst sav, that I am a brand the church of ScotUind. I bear my testiiaMj
phicki'ii out of tlij lire. O that my heart I unto all the lawful wrestlings of the pcoplerf
and sinil t ould iirnisc him, for all that he t God for truth, and in the defence and prner-
haih done for iiie! .\,\d r.ow I am content to die vatiun of their ciiit, natural, and dhine nfbli
a dyvour m friv ^cc. and in Christ's debt. I and privileges, contained and held forth ia ths
I nas c-horired »iih beiiirr guilty of rebellion [ foresaid |>apers, against all encroachers tbere-
against tlirir iirinc«.\ I wa!sanNueret1, 1 was not ■ upon, an^l 6Hray«.TS thereof; espe«:iaily by llie
so, for I u d.< licrcaprisonerofjtv.us Christ, and i kword, as a mean most lawful and commanded
forhisi^ki'; and told them, I adliorcd to his en i of God, to be maiic use of in that qntnd;
tenant, anrl .ul thiiigs in it. 1 am not i-onvicteil ! i« hich is to be carried to preachinga, and olb«
from the woid ofGml uf any crime, as to him j asseinMies of the Lord's people, and sa nracb
whom they call king ; u»r' any thing worthy I the more, as the enemy discbarges it, as tht
of death, i . uuiMiUHl a^ai:tsi any iiian. lither in I cast* non stands.
tboi:<j:!it. uorl. or deeii. S«> niy blthxl shall j '* In the last place, I give my testimony aad
t(.ci:-;r.0(*cu;'l»1w.Hl slie«l in < protrsiatiiin againsst all wrongs and iojorifs
iliiiic tit <vMi ai.d his people throughout tbe
u hi lie ^vorld this day : and more particularif
au^^i^st aii ti^ct hath bi-en done in Scudapd,
Minv liic K'l'inninsr ot'ihc work of refomutiai
uitio thts <L\ . in |iri>:udii*e of God's gloii. bii
u ork auO (K>i>ple ; and cs|»ecially these minf
Skins. l«t. The corruptiitn uf 'the worship ■
IiikI, pn^ianaiion ot his ImIv thintfs, mocking,
niiv^tlKviui;. and IkIv ing uf God, and canyiif
.ts if ttiere vtere no (iod. \ea. which is none,
s;n ing he 3ppm« os ^>t all that they do. O ibii
hcaicn (.vnt«*muiuir genera tinn ! 3dly, Agaiorf
ii)i> ijei'rai.iiir.;;. mockinir. luunWing, and op-
pn *>ini: tl-.e j-ei-ple of Gtxl, in tlieir bodiei,
c <'..scio-.\>s .Hal estates, and punishing them
r.> t-i.l dvHrs: \(a. a< the rilebi monsten d
i-n.: lu. aLi«i il-..it ixsi\ ti>r fuUowing their duty,
a:> . :: A.nis t;:c-ni in &:i:ik. as it were, akfti
:!»« ^ :oi:i.ii : aiid makin^j their names to roi bi
oai.iu«ni«> aiid rciTi-achiiS, and d«iing all tkri
(.-.:) U' iirii^oThcm to Mn : and then b!aoiiii(
i:w:-\ ,\^\'.< nv.:.r. iuMrumcnts of all ibc OVi
t-ii:t-ti<i!s tiiLURirs and abuses in the land: ■
liut II :> i'^oie to that uiiU it, *- the man iki
dciVtrt» troin ini^.i-.tt. makes bim^lf a prey*'
.%nd scarce! \ rj!! it*ii*9e %iho design
. »fc or . . »»r
cry. witii tli-j iiiio
the lain!, ii.r \i!i;rt\r.icc troi:? lieain;. im iho
ill habitants ^r* lin* earth, great <»r small, v ho '
r.:e in i'k' K.isi accevsury liioieu^ a\ and while '
they rcj.«:ii, li i$ ii<.| n\\ x[o::\if, b:.: thrir
o^wi il.wi h:i!h [r.iiv'ori'd it : and (•i>i| :s ju^t lo '
st^tk a'ur tlii-in t\ir the same ; hc-.iht-r is it in ;
any 1113 i:"s pu'iir to l^r^io t.i.i*. r.» Nmi:; a '
briaili ol'iicirs hnly law. wii.ioi.i ri|vni.:ncc. ,
iior then nt uIut. tor the t'unhc^i it.cy can cuii>e ■
is. ba; to dcila-*.- Uiito lucin in>ui G d*s wcrd. .
thai that ami ti.nr otbe." >i:!> »}ia!l ucMr be,
^hJ^sT^Hi upon liuni, it they have inil\ rvrt*eiv».d
1 sirisi I'.j oii l,i> iiub ;c:-:i>>. .a.d wal^rd worthy
frihcl-.«r\i. unto all *u!l pis. isir.v:. IVii m^«'*
tilt ihi:.;; i> clo.ir. I hi sjr.mr.i •» luret^n tlicv in-
tiTid to t.'ikt' .*\«.i\ liu I.U-. IN !. ,■ cv.^w'ninj
t'iurU-> N.uiH :/r iii\ k;.',;r. l'.v\ii!>«. l.c will
ha*o r.'> b«'m,«o* i^iH^n tl*.'" a,.'c .■♦.:»: i-: t*ic co-
venant tVi'in mc, or .my oll'.r. ,\'m\ ti.-«i ouh
rtt)uir\> the jurli-rir ;:•;:■ i^t ww *. ,:r.«l ki'tpinc
and ti'l.ii!i;*s: i^ic ^.»tiii.i:iiv, INai. l. S> :n
lh;s CJX-. 1 causi. t m:\c ivi^i ii..i>«i:s..aud 1 rc-
S4>Ko :o V !v\ ttvHi ra;air ih.\:) 1V..111.
*' Not%, I iu':v as a d\ -.u;^ iiia:i. rxadv to
sti'p iuio (icrr.ix. iiawn): ncahh and sixx-p.^nii
.liid IvLi'.^ in in\ ri^lit ir.aul. dtvUrv", I stincre _ ^_
t'l ihc rio'.CNiant rtttgnni. as thai which is gvi am::ht's quarUrMoauvbouse in tbeha^
Ci«>ii » ti ;ic u hgion. and ;hc 1 hrwiuin ivliin««. ' m« that iLe p«»(>le i4 iknl are brraaie '* a ■esc
adhi.v to lUe holy ru'e %4 tbe wwd : i«iibctrk^^ and a fear totbeirfricMk, u'"
ol God, the aoriptum ol' Uw iM
MHl Ncvl
pocaaLy N|«\iacbfd ef tboee wbo aie tbdr Mi
STATE TRIALS, SsCttARtEs 11. l6SL— /ar Treu$on.
[909
rnhftftrwr
Ikf l»
M the pmtitiiit romjilftitis.
';:j .1 ; .1: -:. uU thm
fGod,
i ; whe-
i , , , ;i,v V l>emp
iiorlrtist^ who trilt
.jMin Jiiiv ati'owiiti
'iiitefor fulfilling their
ijeir wicked desigTis and
1 1 tUc;y were broiig^ht
iTH^ht feigo themselves
ivy then) so much
1 Bfty»» ** when he
;' -re are imven
, I leave iny
,.-it LiMiiiiUiite of their
ariii|f nf GwJ's works
I . itlut^ lii«> atid their ene-
Wf irijr It u so expre««iily ai^uinst the oo-
anil HI ill a I vnhn I hey beini^ called to
\ ami not to sm, to which practice h an-
ft gmciutii {H'omise ; *- lie that losetli
" r, (^'ooiU Of reUlion^, for Christ's sake,
'(Mf>rr«. lihall receive nil hundred foldtn
' 14 to come lite cverlajrt-
I ', 1 l»ear itiy testimony
>i vjiribi, ns the only tfesirable op-
imi rirh lot ot the pt'ople 'of Go«l th]8
O it is tlie portion of po<ir
to Keek God, and de^ti^^n
i I ! 1 think they want a ifobd
ol tl that wunt H ; and 1 think they
«iithin|r tliut have it, and £^t leave to
leartsomdy, and hi« presence under it,
Ime ynii all to take it on; I dare
\m much fof your enconrag^'tnent, that it
ly and »wcet. There is no better way to
cm** ntchllhan i4> cast all our care
i»t« and irn«t htm fm- aW things, and
- ^ - uis ju the matter, and
and oWy his voicf* jn
» !»- ? i.'xV all UDgod-
, wherem I
1 ^ , li world, and
mbehelf a snbiiic, pnwed'uK an J
il, and tentptetl w ith a company
liave shaken off the fear of God.
LonI Jesus^ into thy hand I
, WitxtAM Thomson.
TaTT Tr^TTMONv or Wiixiam Cutuil,
on, JULV sr, 1681,
ady to step iiitorternity, tinil
^ nf a kinL^»l«uii (Htvenanted
IS, enter my
laony ajyainst
Hlr«llfl^ll * hri'^r*; m^-
'.! of hiv kingdom in
' ■■■i of
•r««nbi »' ,
Tlir adni !i
to the
I •**»'*, Hiiu «r«.n»iiui|f hitH|
whike they knew he carried hatrt^ftiAity
a^inst the peofile of God, and while in the
mean time there was so much of his treachery
mn(\e known to tlie parliament, by his cotn-
misKsionating' James Graham earl of I^lontroset
to burn and slay the subjectn of thi^ kingfdom,
that would not side with, or wouhl wtthsianil
him, in the prosecuting of his wickeihiess ;
which is recorded in the causes of wrath, and
the remoDJitrances of the gentlemen, mintbters,
and commiinders attending the forces in the
west, in the year 1650.
** 2. Airalnst the unfaithfiilness, connirance^
and compliance of niintsterB, and others, at the
wickednesH per{ietrateil in the land during the
time of Cromwers usurpation ; for, as f am
intbrmedf few testified against him, for tramp-
hog^ all the interests of Jesus Christ undi*r his
feet, in giving^ a toleration to all sectaries
which was to set up their thresholds hcaide
Cnmt'«, and their altars beside the Lonrs, in
a land covenanted to God, never to suffer Uie
like, and lyings under tlie same bonds.
'^ 3. Aguinst tlie public resolutions^ for the
brinu;ing' in mali^^aanni to the places of power
and trust ; wliicli have been the rod in God*s
hand above the heads and u]>oi» the Ijacks of
God*ii people, ever since they lusted after
them ; and now, I suppose they are conrinced
that God iiath ^tv£^n them on tlie fingfer ends
for it : but we have not seen them confessing'
Iwfore God and his [»eople in public, that thcr
have added this sin to all their other stnn, in
aiiking- them a ktng^ whereas the Lord was
their kiiiqf.
** 4. I bear my testimony agminst that un-
paralleled practice of mlmsters, in quitting'
their charges ; and that, which doth more ag-
gravatc their guilt, at his command, who bad
no nower to act, nor right to be obeyed, neither
in that, nor vet in civil things ; for'ilicn he had
unkiDgerl Bimself; iOid their going- awaj
without almost ever a tetitimony ^htt shoufd
have been the main men that shonld have told
4be people ii hat to do.
^^ 5.1 hold it as one of the causes of God's
wrath against the land, and one of the causes
of God's breaking and scattering that poor
handful of men at Penttand, that renewed tht
covenant at Lanark, and did not keep his in.
terest out of it ; for it only binds us to its main-
(ainers, not to its destmyers.
** G. I bear tcstimonr against the procedure
of the ministers when they came to the 6ehls
again after Pentland, because they did not lirn
begin V ith public and private fusts, and make
up llie hi dge and gap for the Clnirch of tiod
in Scotland : and then only preachi-ig to nac^
of conscience, and not catechising (he |>cople,
nor informing them rn the duty of the day ;
IntI did let tiiein pay curates stipends, and
other revenues of that natum. )Uit I think
they were engnged to God under the pattt of
loKitig soul iind body, in tlie day oi" GmVn Icar-
ful judgment^ to tell the [let^nle to cha^e them
out of the land. Seeing prelacy was abjured
and cast out like an abainiuable brmich^ as a
mlioB ; aod in fiiodering tbie pii^g^ia^ lof the
army.
'* "9. I bear my teititnony agaiiut their trea*
eberjr at Edinbui^, wlien a proclamatioii
came out to the riew of the worid, blaspheming
God's true religion, ami declaring that all that
belonged to God was dae to Charles 8tuart,
which is the plain sense of the act ; and they
■at in an assembly, and voted for a liberty
coming from him to iireach by ; thoi^h the
▼ery same day that that was proclairoMi, two
of their mora, wortliy and mithful brethren
were murdered, O! how much pomp and
joviahy was that day in rejoicing oyer the ruins
of the work of God and his people?, yea, over
himself? There was first a scattbid made on I
the east side of the cross, and a green table set
down on it ; and tno green forms ; and then
tha cHKs was covered ; and about twelve honrs
of the day, the pursuivants, and lyon heralds,
the lyon king at arms, and eight trumpeters
went up ti> the cross, and fourteen men on the
foresaid scaffold, and seven of them with red
Swnsof velvet, and seven with Uack, and
m that act was read, anil at night the bells
were ring'mg, anil bonfires burning.
'* 10. 1 wave my testimony against them
lor running away and leaving God's flock
after Bothwell -bridge, when they had drawn
them to the fields. Docs not tne Scripture
say, that they who are in the watchmen's place,
should warn the people, when they lee the
airord come ; and have nut the ministers of
Scotland had the first liand in all these courses
of backslid in|rs? Well, their sins are known to
be no more uus of weakness, but sins of wiok-
'Ml. I bear my testimony against them,
because they did not jtiin with their brethren in
the work or the day in preaching to the people
in the fieMs. with Mr. ilichard Cameron and
ConfesaioA oi'oar Fauh aay, these
the church, and their brethren,
their repentance as public as thi
have been P Is not this the plain i
that article, jea, the very words ah
Confession of Faith, chap. rv. art. 1
out which thing be done, (if any wo(
counsel, who am looking to receii
tenoe of death every nour), I
meddle not with them, foi'tbey hs
sinned against the Church of Got
brethren, and their own souls, I
G(k1 : and have they not been Kghl
cherous ; whereof many instaoc
S'ven. Have tliey not polluted tlie
ave they nut done violence to tha
they not been untaithful ? Are the;
iog*very 0|ieHly amongst God's stai
while the people of God dare not
fear, if they make not haste to cot
courses, that God's wrath shall ove
ere it be long. And Instl v, I beat
mony against them, for their nnte
weak cimseiences, ;kud making ii
giAs and parts to wrest the word
put out that li^ht, which God has
things } of which I, among othe
proof) for one of them came into
and tokl me, that he had been di
him, who had been pursuing us to
king's advocate), that he would noi
cent Irfood upon him ; and out of k
demess to our souls, he came to pa;
and said, he was neither a curale '
dulged roan, but a minister of the
he said, that be w6uld be well mi
we were doing, for the advosate b
were shortly to be before the crin
And J aaked, what he advised as l
began to tell him the ground wb
were accused, which was this, tl
ITfiTfUALSi^ d&Ciiji.»i.sili. iS^t.^for Tnonm.
^19
; liiMi
frixs ihai af Zc«ldniili% anil tkiis ta
Sit mmm frum ihm vfPHi* Aii4 \m
aii4 JvuMlinft wliowithflliwd
t. wt vNMilil not bs«r bun ; iuhI
\ ntf m^ thin^ ws aoy coodltim^
lisiiinii Mid cird^r oftheooro-
r did il«e ti» th»tii aH^iaiwo U>
I iImI Mcoutil. But i^liat .^
bM «vary one cm reA«o« oqU
U or elie I bat tliev are iiol
[but gaJiMtan^vrs of the Iratii i"
' gitcn to «r«ry ro«ii biameuurv
i'tt bolb •* 11 luey kiK»w not this,
K~^llot BGCOfilitisly» tliej were nevef
lia h^moaufim^m ^ gocpeK He ^uid,
wooMarnt) me any of the rn ■ -
hI ti» cJill for : I stild, ihu I
ili» m«> a4td I wou'i a great
io<r Ilia liami ? But , that he
way bv Jiuti»eU. iitit wlmt shall
liy hcnrr ts'tile to fctftk, when 1 think
ofthcbntl. O I think
i*»e * Oiily 1 know Ood
' it.
fiinmiv ocraitist all
■ liof the
% against
• r '"mnd
dittt
... ,: the
'itii hit sill
, leave im\
I eommon;i I
nI tie tiht-ii
lliath a turn to \ti
"in«t tHe
>a mudi
H ranks, I
I ii» ti^*?i\* hands
toiilil ti6}Knii»e hiii <^«mrre1« and turn
k-aJl thvir beartx, ;in(i mil rfnHVr the
^ g«A aa it dom ; but in<if*t'<i ifury iuti8t
Dj with God'a t^Utrd cnPTnies^ and
cqmt tkjilHOnt \W\\\ u\\ jt»u one
wm lust the maimers of the cotirt rrf
aiit^ ike iiiuniirTs of the roiirla
wbat tliiTiL ir ro <hi? Or how
leountn' "' Willy ft hilt
IPJImK wi . link, hath the
}'f Will ye let the
ilpfernH nith vmi more
llf n«dP Or this
I il* ID jMif wh» ; |!ar-
"Tl ya tPUHl Woo«i Jl may
Rbn |iiit %m auflPrt Hec<H>iil»
*" i own <to«j Aim i^ti people;
rrry few id' you now, who
I wncker^. Will \ettiiu t.^ the
I your ht«rii». J-^ it nwv nJKjioe to
F^ai Olir
ofJmi lofJool,
} 4>f Ha^tjpti, Ihh. \xiL L^?t«k. nil,
I if iMIf (ke Lord and you take it
** !iow» wha »HaH 1 »y to wi. wll*> owur
andadherA In Qod^a caaise,
miet f O that I eouM M ;
my beaM ! Will ye loarn y
tha Lord and ^t 'him on I tUlnk,^
it ;a « » ,,.»jjfj ti^ki'ii **f " ""^ *^ '
I to be ii> '
1 ^eea the ^'
r iL. Beware of iWinxX vvaixt^ ani
one against another; kuow^ iha
I great differencii between ains o^l
. atnl aitis of wickedne^ ; ye tnaip' ]
lit it iii^uk L?ery failing^, for if ye do, ye ahaib]
not hove two to atay tii|fethi>p in Scotland;
O but there l)e luuch neetf of tliu gospel; au^ 1
these minister* will not come out and coatemMj
^ ^'hri»t! without whirh, though Iwereal>|
\, God knowM, I durst not meddle witbi i
.-.viiii and I would rather keep abiu*k fVoin* ,
them, »or othor folk; for 1 think, there i
rnaiiv lif them either unconcerned, or fheivl
misled, for how con it he othcr^iac^ '
r ig- with tender con»cienc?es^ for they i
wili ratlier strive to break tblk than build thanii J
up, hm how can any that has love to ClurialpJ
look on them with good will : I do vcrilv thiuk^ 1
if ever they turn again « the world shtiU near telf 1
of it. It IS beyond all coutrovers}', that they j
have quit their ftrst works, atid their first lore*
O will ye leam to be soIht and grave \ Cleair
to your covenants and enpju^^rnents; I ssy^^
raind your pngajenients ■ ^"^^^ nUnMii^r^on
of coTcoaot- breakers. I Y<^tt
take no courses by the*! i r- yoiti
cleanie«^ ; but inoeed, I know, that <iod wtlii
repirove many in this gyjnenitieTt, beeau^ theyf
put away light from th*ini, Beware of thesi 1
mifiiaters of ChaHea Stuart, these indulgetl an# ]
the«<> I-^rHatic, these moekera of God, and coa^
temners of the jfodly^ ihi^e Cbrist-de^ertcrfj
*' ' ' !!ieae Rcandnlout I
homGodhatli'^
iMa-Hltfi «».« ti"' rtniTi i«.'iT"iri vu -nl tbc CfCnVTaU
that isce fin? thiofir ; theie monstCTB of
the<lis|j:nje«rof the minis! n/ ♦''** ".v-* ronlempt^
of tl»e g^rtieratioo God li -ics hnd m
chureh v^ithout a tninibtry, vcr harl
ministry without a church, lioth not ib^]
senptufea say, That for mnry dny:^ !srncl shall 4
he without a priest, - .Sec,'
Do wc n««t see in th' wii-^
n^aaea stain, and he three tlayi au
But> O cry to God, That l»^ would
labourera to his vineyard; for verily mc Har-
vest is great, but tm? labourers nre tew. If
tlwre Iw a r»«tini^ at the tttxp«) on the people^i |
title, then 1 think they shall be tn extreme ha«
wwd *'^ ifi-i:,.^ iK* ir vl»nl it i ,i^iW mervy pre*
veil I i« to he guideil]^
hv f ^ li); sees the i '""
, he run a i^^ave the abeep, be-^
he ia aii b ^^ii I tltink the Twrry]
ut God is eni^iifed tor the eh«ep, be*
have na shepb^# If is not the ttfsi
l«rael haa been seatterrrl as $hi»rp havirip;
sliephei^ ; but it Ls as aufe aa» iWe aao aMitt
' say, tbftt I am a self
s^ake ibtt wliiLh G^hJi gmve ineto
bui adversvies ; luitl I iUmk titat it j« mtftHl
mercy, Ihal he halli Jicli. til ' ' *"
tb«in in matters o\
owning uf them, <uii i
our own rights. 'I
testimun y, atiil foriuj
and request all to bear w ^
especiaily when the awof
abci V e a ma n*s h ead , >i o ^
all thin^ in it. Welcome
Inio thy haodtt I recomtui^itd my
Sk Subset ihitur, W
L
ll. ll* fft'*' twftJ^
*r!>tiillioi«|||»;
»|.l
91 1] STATE TRIALS. 53 Charles II. ifiSl.— Tritfl afCargUl mtd *4km.
Qot tQ him that walketh to direct Uh ateps.
^Aad God bath sown a joyful li^ht to the up*
'jfht; md be has said« [lim Uiat 8ttt«th ia
arknesa, and hath no li^ht. Id him trust in
br Lord and stay himself upon his God. But
t^uld the 9(>ouse rest in Jf^rnsalcm» ami her
nd not to he found ? it is beyond debate^
the made all the fk^lds ado before she
ranted him. Can the spouse see another
Vear her husband^sf cloaths, and be well aatis-
fled? ^'i*a, one that ba^ rohbed, apoiliad, and
ihut him to the doors nitb disgrace, contempt
r and shaiiie^ and as one unworthy to manas^e
■affairs of hia own housse; and has defied
bitn to take any ihin^ back acT^n, and has set
Bp le|^ aiid artns, heads and Uand«f and quar*
iBTS of the children, as trophies of victory over
ibe gnod man of the house, and baa triumphed
rith apite and contempt^ and is only seeking; it
l«f tJte poor widow, the wife ami the bairns to be
auiet, and accept of him for a husband and fa-
ler ; so 1 lay, shall the w ife and ehitdren of
Ifnch a husband and father h<* pcdsceahh' to &ev
'Via? 1 trow, there are few eailUly folk would
ifio; But 0\ who can shew ifie diflVrenre
ere, aato searchinj^ out it cannot be. The
[jord keep you from dweffinif at ease, under
e roof, with such an one. Beware of making
uy treaty of peace witli snth a robi^er and
Durderer as this ; beware of feeding" these sol-
jrnrs, or giving them quarters, when they
IttOrtie to your houses. O hut the kin^; of As-
^ria knew well enough, that Ihe king« of
BTnel were merciful king* ! If ve >vill not use
be aword at GckJ*!* hiddiog, G<jd will put it (m
I lie hai^i) into the hand» of Uis and your enemi^^^^,
> uBe it a^mst you. Indeed' I think, till
aul*s sons be haugtHl up before the I^rd, the
blague Qt' famine ahall not be stayed from
lirael.
** Now, in tlje neXi place, 1 witness by this
oy testimony, my adherence to thesicripiure«i ui
ruth» the ffoly Bible, the Old and New Te*-
anii^t, which has beeu made sweet to me.
The limit is not tn them that we understand
iita\ nor, but in us, and this we baie aa our old
bthi-r Adam'ii heirship. I witaesa my adher-
tice to the Covenants, >iiitiunal and Solemn
eagm^ ; Confession of Faith ', only there is in
sthing concerning the magistrate's call-
V&od of mini«ters, t»v virtue of hii» magitt*^
1 power, wliiL-li ought to be cautiimbly
ttood according' to the General Assembly *»
licatiun, I ailhtre to the Catechisms larger
and shorter. Psalms in metre, Dti-ectory for
Worship, Form of Church Goverumeut; the
■ clrine of the clinrcb of Scotland, as it is held
Qt tn the word of God, and laid down in the
bresaid papers. 1 adhere to all f aitbl ul testiuio-
(fties for truth in Scotland, of one sort and ano-
ber, »Dd particularly these three, the pajicr^
bimd at the Queensferry of the date of the ^d of
* June, theSiinqu bar Dec fa ration, the Uuthergkn
Testimony, ami every oUier papertcndingtothe
good of religion, particularly the Causes of
Wrath, and 1 rr^uest all to r«ad and coiisudtr
ifaav. 1 Mky« my teitimoay ag^st them tbflt
Ci>rmu"
Of tills Trial, Fotmtaiobull^ in bts Oecisab»,
says only :
*» Jiily «6, 1681. Mr. Donnld Cargill «i^
four of 11 is di^iciples were c««ndcmtted for rr-
bcllion, and disowning the kini*:, and liaaigid
Ihe ne^t day.^' 1 DeeiBions, 148.
fiut the following |ta«sag«8 in ibe aame t^
lume conceni Cs^rgill i
** June4, 1680. A C^ t ' •
traoixlinary ninni the nr
rattled by some women at Uu^^ti »-ir:ir^, «»<^
rescned from fiome of the kiti^^a ftirOBanaa nf
the roinisterii w ho preach at th*^ ful.i «4*fi«i»^
tides, called iMr. llituald Car Heuri
Hall, a feuer in Tiviotdale, wo >u
and taken, but died of hia wiMiCKb; ooly
papers were seized on, and a new c«
which was printed. The Council a«nt
D&lziel with a party to mak<* all I he
quiry be could, to ' J,^
nister, aad lo take i i ,d
fended him.**
" Oct. 5. Mr. John Wanae, keeiita- of i
Tolbooth, '"• 1 ^" -- r^.,.. . .1 1...^^ ij,^
cil, for %^' L to
OOtOf pi:: i i ,. li^rilrl
gill^f escape at the < .
with certi Illation ii<
prived, if he fell in tiie like, hut nUo lie
his cautioner* most ri^mu^ly punHuul.^^
** Jan. isth, I68i By Act W i'riry Cw
the Solemn League iind Covenant,
giirs CovenaBt, and fteterat ud
this day mlemnl^ burnt at th<
burgh, the magistrates being nrr'sv4ii m
scarlet r<»be«. Some wondered at Uieir pnii^j]
in revising !he memory of so old ai»d bufiEd
legend a» Uk' Solemn League, which was
in 16(>t, and set ueo[de a work Uf buy it
read it ; and for CargilPs ridiculoui» doveaipt.
tliey had about a Iwelve-tiiontfa be^nv litis
ca^used print it ; though that was ouly ia oos-
tempt of it.'*
Shiels, in bis '' Himl 1«^ Loose.** UffiJ
c/jpions concerning refusal to pray fortbekilf'
The following curious ami chamclenadctf-
ti-act, which conveys a ?'•*-■ rv Dotion<^
his sentiments, ar;^ijraeni^ . , wdl j«'
hapa be read not without i.,i^, ■». .
** To vludir^Oe the amru^lenma^ penmen ^
such annpelled mi eaUgHed drfotigtii m ff*}'
rVi
with '
STATE TRIALS. SsCharlbsII. l6iU—/tfrTreatoH.
[914
I hholl olTer these coosidera-
>se<l form of it (irhich ai it is
iinT fVfim wUetice it is taken,
iv^ exfionmled, God save
I esticntly nppHcd lo ty-
j^iu Ih;: jiiitire sense of tin* w orlls
Bcaiiou, Iah tlw kiiigf Jive ; wliidi
i die, ami tlic law
'j«' mr iriisr murdei^ and c«-
i t Iwa taken either a^* an ndu-
u.jw^.i.iiit; or a riwtpatiilatory ho-
a jirecatory benediction. The first
extorted moit iJlefjally, j«o it can lie
derod neillier cifilly, nor stDccrcly, nor
etiaaly ; but all ingenuous roen uouli^l think
liaj»e imposition^ to be tbrceft nut only to
l^t themselves to their tyrannical *0|>-
orjj, but t*> flatter them as if they were
sucb< Whatever they may force the
^utb to Ap(«dk dissemblingfly, ihey can never
1 tl>c heart to ihmk such wishes are due
1 5 fttid so tbey can never t)e eonlial,
'itlent w ith candor , and tu interpose
_ ' aiid dreadful name of God, in a <lis-
•onbliiii^ compliment^ to tlalter hn&a men, ijf a
liOf^ ti''" t^ ■ "-^ of God. and a heinons taking^
hbjitn , controry to the thinl com-
a congratulation (as always it
11 taed in tcriptiiret and in cases formerly i be-
' fcr imp>sed on men, by wny of com-
^ lieture this set of fy runts started up*
pw tliey vmi ^'et no di tt rence of honest
Dt by eiittojtion) it is the more abomin-
M only fur Uie U3'poeTi!iy that w in it,
ID pieces thy people? O God, to whom ven-
geance bclongeUi?*' Psalnrxcir. 1— 4. Yes 1
God hath 'said it, and we most not contradict
it in our practice, against all tyrants (bat wreal
juifg-meni, and say unto the wicked, **Thoti(
art Hj^hteons : bim hball the |>eop1e curt^e, na«
lions shall abhor him," Prov. xxW. 24. /
this mu!»t stand rejri^red* as the ^verlflstiii|^
men of dentb, of clause of all Ziou*s haters, to vibich all her 1
n used in
i
lovers must say, ^rncn, that they shall be tm {
the s^vnf^ u|>on ibc house tops, and never huvat
the licnelii i^f the Church's benediction, PsaJ, ,
cxxix. B. ** iSeithrr do they w bich go by say, 1
the blessings of the J^ord be upon yon: \%m\
bless you in the name of the Lonl.'* This ono-j
woitl^nay \m a sufticient supersedeah from
blessing any of the enemies of God, or of the I
Church, while uctiuij in a declared opposilioa ^
til GimI lor the destruction of Uie people anil
intercist*
*» 2. Eitber this, « Save the king,' as tbej
month it, and demand the repetition of it, if i
a prayer, or it is not. If not, it must be m
dreadtul profanation of the name of God, to \m '
coniman/letl to speak to bim, and yet not t©
pray* If it lie a prayer, we wonid expect ano- '
ther way of dealinpf with us, if they really din
sirfHl the benefit of our prayers* than a threat* j
ningf us with death, if we' did it not. And if ]
they did desire it, as Darius did, ** that wa
mi^rlit offer sacrifices of sweet savour nnto tba
God of Heaven, and pray for the life of tb« ^
king and of his sons,** Ezra, vi* 10, we conl<f
not recuse to pray for bim, so far as roisfhl
consist with that prayer ol the same Darins^
^ in that same decree, vei-se 12, ** Ihjt God rhay
y, Ui i^nng llianks for the ] destroy all kings aud people, that shall put to
levira interest, aud the de- their band to alter and destroy the bouse of
God/* We can pray no prayer inconsistent
uitb tbis; and to pray that God would sart
this kin^, and yet destroy all kingfstlmt put to
tbeir hand agrtirist his hoiisv, were to prny cqik
trad ict ions. But they know they deserve no
prayers, and must force them, if they }(ef
them. And all the world knows, that com-
pelled prayers arc no devotion ; aiid if the.y b«
no devotion, they must be sin ; imposeil pniyer«
are not ibe prayers that God will bear and ac-
cept ; aud if we have not the faiili of accept-
ance in them, they mn^^t be sin \ for whatever
is not of faith is Mn, Horn, xiv, laiit verse. All
prayers which God will hear, must proceed
from the heart voluntarily iinil fervently, in
bpirit and in truth, with the whole brurt ; but
imposed and compelled prayers cannot he such,
es(»eciaHy when tboy are not only by ibeni im-
posed, but prcscribi'd as to the form of tlicin :
which sefs and fornts pfi:»c:ribed by m€*n, and
such men as usurp a supremacy over tbo
Church, cannot be snhmitleil to, according to
the wont of God, and principles of our re«
formation.
** 3d. That infallible proposition of the Apos-
tle, whatsoever is not of f&itb in sin, must Ims
urged yet a little furtJier : and that w ith a re* .
ference, both to the jierson required to be prayed J
for, and to the matter of th« duty mora go*
3N
^romo:
IBeoyer Of i nvi^rs, and the hberties uf man
Hm* W bat have we to cougrututate him ihr^
tllir 1^- ■•■* ■' infj our laws and lilierties, and
most grievous tyranny? Be-
, tc 1^.;^ ..,^ vilest of men, vvlien exalted,
F OOngmulatory honour, is contrary to the
amatiiK us is shewed above, *• And it
if of the law, thus to praise the
> that keep the law, will con-
titb them,' Prov. xxviii. 4. If it be a
tioj], we cannot bestow it upon one \% bom
curies, our mother curses, and all
^n. It is tio less pre{»osterous to
Lord declaredly curses, than
blesses. " THe cm^e of the
in'j ijHuse of the wicked,^' Prov. iii»
We ranriot then bless tbnt house. Nor
^bl«s tbetn thatnur mother curses, and
I feiigeance against, as she did against
dneszar, Jer. H. a4, iiS. Nor them
tliom the biofMl nf itur dead brethren
bortal CTy% ** How lonj;, O Lord, holy
Itrtie, dott tliou notjudo^eand avenge our
Hev, »i. 10, And the vexed spirits
Tour b>fft been, yrt bowling^ umlor the same
Jiie, are putt mt^ up before the ihrone of (jfrace,
4«iiiiir con' ;, ivith incessant im|>or-
ti»t7. ** I » bow louf^ sbtkll the
t«M liiiifQ|>ti r jiow long sbtii th«y hn»k
916] STATE TRIALS, 3$ Chables IL l6Si.^Trial of CmrgOrmii^iken, l^J
I
nerAlly, Firsts ifwe cannot pmv tor ibm man, { the Lord reprove his senranl, fbr moiirttiiig ioc
neither a?* a Christian, uor as a king, then we j* a kinfir whom h** ♦li^JowRefl, tH«i we mny not
cannot satisfv this impnspd ilen^and ; for it wilJl
Hill fsniifiiy for htm a:>a heathen : but we can-
not in fauh prav tor him, ^I'ither as )i Christi-in
or a» ii kiniT* Not us a Christian, tor Iw^sitles
that tie is an excuminimicaieupostnle (hy u
sentence H hioh we liehi-%e i^tana^ yet rati tied
in heaven, pronounced hy a failbfut btTvanl of
Chri.sil auil a l^aptst, wjijch, u^ ^tich, cun no
more W* prayed (or, than the \n}\*e as pope ;
for whom, find all thehmhiiof Aniidirist^ the
only prayer that Prolpstaiits can pray, is, thai
tlie Lornvvouhi coiitjtime Iiun with thef>pitituf
his mouth, and destroy witli the hiii^hliiess of
his corning-. ^ThtAii. n, 8. (we cannot i^cK-oncile
the prayers of some, that pray against the pope
and his sti|»portei'ff» and upholders of hit* tut-
teiiii;;; kiu'^doiii, mid yet for tht$ his Anlichris-
tian vf4Siat) his nij;e and resolution in prose-
cuting: a war a^ain.it Christ and his followers,
h furh, that it we ufuy make compariMios^
mir faiih Hill have Utile more ^ound to pray
for J*fne$, than Christians of old eouhl lind
for tKilian the apostate. Nor as a kin^^ for
tJiat we caoriot do, hecaiifee he is none wah
f^ml'sapprohation, and |nay not do, for a very
heathen ccuddleacrh us to pray, that (Jod would
dettroy all kioj^s that put to their hnud to alter
and deatpoy the house of God, 1*1 2ra* vi. 12.
And betides, in the i;e€ond place, « iih respeet
to the matter of the duty in jreneral, that can-
Dottie in faith, wbieh wants a warrant in the
word, cither by precept, proi>iise» or practice ;
fcut to pray for wicked tyrant«» and enemies of
God, wants a warrant in the word, either by
precept, promise, or practice : tliere is no pre-
cept i or it, either g^eneral or narticuW, neither
evpress, nor any to w liich tins is mdncible ;
and who dare add without a precept in the
worship of God, either for matter, manner or
etid, w hat he hath not commanded ? For sucli
presumption, Nadaband Al'ihn were destroyed.
Lcvit, X, 1.2, because they did ihat which the
Lord had not eotuniundedt What c-ommnnd
can. thtrre be for prayin*? for ihat, which is
ajfahisl the preceptive ^vill of God, hut it i^
•ffjiinst the preceptive will of God tirit there
should be tyrants : ihcrefore to pmy that Ihene
may lie pi-cserved in the world, 'cannot tall
under a command of God, There is no pro*
niL^re for it, which is the foment and tbundation
of prayer: wc can pray for nolltini;^ that we
Ijave not a promise for, either general or par-
tjcidar ; hut we ha?e none, nor can have any,
for the pr«servatioQ of a plague to us, a^i ty-
rants are.
** There is uo practice for it in scnplnre, tt>
firay for Liusfs that put to their haid to destroy
t1ie*honsc of God. 8amtiel did indt ei! mourn for
Kanlj biitthe Ijord reproved him lor ii, " how
Jnnij wilt thou mourjj tor Saul, seeinjj 1 have
n ieclcd him from beinyf hint^ over in^ael ?*'
1 Sam. \vi, 1, belike this reptfwif was for ht!$
praying for 8a u 1*8 preservation as king", for
«»iheri«ise we may tnonrn for wicked wretches,
^ thek aiu and' uij&ery both. But htnce^ if
-rat,
1 iTp
jiray for such a
as be disotvns ni
and not hy him; but th* ar,
in that exampteot Samuel ; t)i
ronMqueiit, that we may '"
as kiny^s, whom the Lord >'
*'4. 31oreoveT "^ — "*'^ „t-
thal prayer i!*ii«' li a
contrary to tht • '»
mises, and the
prayni^ lor wn I
15 cool rat y to ttiv^e pret
practices, (kc. Erjjfo-^ -I
itivine precepts, Iwth atlim
There i« an affirmntivr r
what pray t;rfduiu Id h
tionof t\ rants, that ti
8pare thy people, O ima. ^i> «i not
lage to reproach, thai the heathcti si
over them^ wherefore should they ^
the people, where is their Go«l f
Ifilbea reproach to be n : ' ■ !> -♦!
and il" we should pray ih''
butthat our God may she ..
is, and w ho he is, in delivering: .
tlictr domination : then it is coi
to pray tor the preservation of tynuits, thai (it
rule over them to their destruction and nr*
p roach ; for it is contradictory to pra?, that
they may not rule, and that they m;»y "lie (»pe»
served in nilinq". There is a nt cent,
prohibitinij thesalutation of herci rmm
of the ^osficl, which will condemn liiissalutatjoii
of hert'lical kitig^: for in the oritriual, God tav*
tV:- ' is no more than a Sijletim saJutation, or
\ wish that he may proNi>er, 2 £|aiL
Jvu-o ,v>, 10. 11. *^ If there en- -
and hrintr not this doctrine, ....
God sjwcd, lor he that hiddeth
is partaker of his evil deeds.'* (
Greek, is the same with Gl . ._.
Hebrew. Ifthen we must not say*
a heretic ; neither rouit we say, God
heretical king, or a popiadi tyrant, n
enemy to the jfosj>cl of Clirist, and tlie <
of his kingdom. This is also incon
with that role and directory of our
'v called the Lord's \y
canuot he reduced t
tiijoii^. fwnich are comnrehensive oi nn ita
are warranted to pray tor) hut hecftase itf
Iradictory to the sec ■' -- " « • "
dora come. The ctr
in our lund cannot Co.. , .. ,*.... ..,. ,.
of the tyrattl's rc;i'4'n, which is 8citan^$ i
Antichrist *t> and Satan's kin^dont^ and ^
cannot be promoted both at once. It i
alKo d em on'^t rated, that it is iocon&is
ntl the petitions of that perfect form of i
With the first, hallOHt^l be thy
w hen ttiey who rule over his pi ^
to howl, then his name eontintiaJ!
Isa. lii. 5. yea much profaned hi thuir
r^ealintj: thai imposition. With the
thy kini^dom come; for ivbeo lie Uka^
W7]
STATE TRIALS, 33 Charles II. l68l.— /or Treaion.
[9J8
him hit grett power and reigns, tlicn is the
time he will destroy them that destroy tlie
cuth, Rer. xi. 17. 18. It is against the third,
ihy will be done, ... for it is against his [ireccp-
tive will that there should be a throne of ini-
^itr, itshall not have teiiowship with him, as it
would have, if acconling to his will. And
tkcretbre Habbakkuk pleads from the l/mVs
Psal. Tii. 6. and that he would break the arm
of the wicked and the €;vii man, Psal. x. 15.
that he would not slay them, (to wit, suddenly
or in a common way) lest the people forget,
but scatter, nnd bring them down, and consume
them in wr:ith,tliat they loay not be, that it
niiiy hi: known God ruleth in Jacob to the
ends of the earth. Psal. lix. 11. 13. Thisisa
and righteousness against tyrants, I psalm against dogs. ^er. 9. what dogs T
Ilabbak. i. 13. 14. It is against the 'fourth, Saul and his men watching David. 8ee
me us this day our daily bread, to pray for j the title. As also '^ '' — ' — '
ikemthat rob us of it, whom the liOrdlinth ' thnt he prnvs, that
it is against Saul
the Lord would Dot
grant his dfsircs, nor fuiiher his devices, and
as for the head of ihem that compassed him
about (which was Saul). Let the mischief
of their own hps cover* them, Psal. cxl. 8.9.
There is also a prayer, that the saints may
execute vengeance, and the judgment written
I upon tyi'ants, and bind them with chains,
Psal. cxiix. 0, 8. 9. The church is brought in
I praying for vengeance against the Babylonian
j tyrant, Nebuchudnezzur thi- king of Baby loo
; hath devoured me, .... the violence done to me
I and my flesh be upon Babylon, shall the inha-
; hitants of Zion say, Jer. ii. 31, 35. Paul im-
precates any man that does not love the Lord
■t over us tor a plague, to domineer over our
htdies, and all the means of life. Neh . ix. 37.
The saints there make a complaint of kings,
ad pray to remove them, not to save them :
tta canrch also prays against base rulers on
lUs aocoQDt, because under thcni they get
ihsir bread with the peril of their lives. Lam.
V. 8. SI. It is against the tit>h, forgive us our
debts or sins ; for if we pray for taking away
Ibe guilt of sin, we must also pray for removing
Ibe panishmeDt ; whereof this is one, to be
voder tyranu : and if it be sin which brinf>^ on
ji^pnent, then it is sin to pray for the keeping
tfit on, and continuing thereof; and though
WBsbookl forgive their sin against us, yet we J Jesus, let him be Anathema Maranatha, 1 Cor.
Mglbt to complain against their sins against • xvi. !2?, and sure no tyrant, persecutor, sub-
'' filing it, and she<l- ! vert or of Christ's kinprJom, can l>ea lover of
God, and the Church in defilini
ii|the Uood of the Saints. Psal. Ixxix. 1. 7
It « against the sixth, lend us not into terap-
lMioi| and delirer us from evil ; for their
fmmnent is a continued tract (»f temp-
Mioa, they being a snare on Mizpnh, and a net
fmdupon Tabor. Hos. v. 1. And if we pray
libedelivereil from all evil, then we must pray
% be delivered irom tyranny, which is a great
criL It is against the conclusion also, for thine
■ the kingdom, and glory : tyrants being
Mited in oppositioii to the glory' of God . Again
h the next place, it is against many promises
iTgifing good rulers, end of breaking the yoke
iftyrants, (as I cited several above ,) neither of
Huh can consist with the preservation of ty-
t6ttM, if Buch a prayer should l>e answered ac-
fwdin^ to the idol of the heart ofthesuppli-
tmtai for if God should save this man as long
I we nay pray for him as a king, then all the
' or a chan^ and revolution are pre
IIhM. Lastly, it is contrary to the constant
^WMr of the saints^ prayers against the enemies
*f Ood. Deborah prayed upon the destruction
tf a tyrant. So let all thine enemies perish, O
X^Bid. , Jndflf. ▼. uH. Jotham prayed against
tta bastard king. Let fire come out from
AfcioMlach, and devour the men of Secheni, and
• • . • let fire come out from the men of Sechem,
^d deronr' Alnmelech, Judg. ix. 20. David
tagriaqpiast Saul, whom he ca'ds Cush the
rowimilfi in the title of Psal. vii. alluding to
kin hia father, or because he was no better
iiwiaa Ethiopian, a Cushite, Amos ix. 7, and
fHM M» more change his nuinners than an
his skin. Jer. xiii. QH.
VnfM'ifi^nopa. Critic, in locum. Whereitis
jMMBt tiMt this was Saul ; against him he
Lord urould awake to judgment.
Christ. The Martyrs, under the fifth seal
slain for the wonl oV God, and the testimony
whicrh they held, are hn»ughl in crying against
the tyrants that murdered them. How lung !
<) Lord, holy and tnie, dost thou not judge and
avenge our "bloiMl, Rivel. vi. 9, 10. Which
though it be to be understood of a mortal cry
of bloofl, as \heVi hUtv.d cried against Cain :
yet ought to be a pattern of our prayers
against such bloody enemies, imbruing their
hands in the blood of our brethren, for which
we ought to pray that the Lord w.uld ha:>lc to
make inquisition. Durham observes from this
place, that GoJ's people, in a holy way, may
pray for vnn^reanco iipon pci-secut<»rs.
*' .5. Let us consi«!iM* the person and matter,
for whom and lor what this priytT is c\t*»rlcd.
Kither it is for the personal salvati<;n of James
the Papist, or the royal iMcsiivation of James
the tyrant. It w ill not siit-sty to pray, that if
it be possible, and if it were tho Lord's will, he
might Im) taken to luavon, that >o\vo nuj;!!! bo
quit of him. Ncill^or wrre it lawful, tojiray
that, except we prayed lir«t, that he might
repent of this his wiekednrss, if perhaps it
nught lie forgiven him, as Peter directed
Simon Magus to pray tor hiin*?olf. Acts viii.
y2, for it is unlawfurto pray for the salvation
of a papist, ex^'ept upon supiKwition of his re-
pentance and relinquishing iM)pery. We nnist
pray nothing but acrcordingtotln* will of tiod ;
and it is not the willoftiod, that the v that
have and kee]i, ami will not part with the
mark of the beast, should be saveil, for he is
adjudged of <iod to drink of the wine of his
wrath. Revel, xiv. 0, 10. So ive cannot pray
for him as a (Miristian. which he is not, nor as
a papist, except that he may get repentanct.
919] STATE TRIALS, 36 Chiblbs II. l6H.^Proeeedmgi Mgtmd [990
Nor can we pray fur him as a kin^, which be
is not ; ndr as a tyrant, except that he may
repent of and rdiuquish liis tyranny and usur-
pation : tor tyrants as such cannot be'saved,
no more than papists as such ; for Tophet is
ordained of old, yea for the kin^ it is prepared.
.... Isu. XXX, S3. We cannot then pray for his
aaWaiion, except we pruy for his repentance,
and relinquishing; all his sins, and so we must
pray for his relinquishing his kingship, and tliat
ne may cease to he king ; for tliat is his sin,
chat he hath made himself kin^ without God,
aiid against the laws of the land.
" And now, while he .continues such, we
must complain in prayer, not for his misgo-
vertiment ooly, but tor that he governs, and
desire to be deliven^d from him. 8ee Gee's
Magistrate's Original, pag. 258. But now
considering what a man, and what a king he
bath been, guilty of murder, adultery, idolatry,
undei' sentence of the law both uf Cr6d' and
man ; we can pray no otherwise for him, than
for a muiilerer, adulterer, or an idolater. We
cannot pray for him as cloathed with authority,
or that the Lord may bless his government, tor
that is his sin and our misery, tliat he is a go-
vernor: and his throne is a throne of iniquity,
which we dare not pray may have fellowship
with God- Can we pray that God would bless
iiim on a throne of iniquity ? Could we pray,
that the Lord would bless a drunkard in his
drunkenness, abusing his enjoyments ? Or a
thief in his stealing, though he used his pur-
chase never so soberly ? What if prevailing
rubbers by land, or pirates by sea, preying
upon all passengers, sboald reqoirt tiiis as tbe
sign of subjection to them, aod only conditkM
whereupon such, as they apprehend and over*
come, shouM be suffered to. Kre, that tbey
should pray for preservation and prosperity to
them P Would not this be wickedness thus to
pray for tliieves and robbers? And are not
tyrants the greatest of thieves, that rob and
ifeslroy twenty for one of private robberies f
And do they not require this as such a sigii
on such a condition.
" 6. Lastly, then the plea will be reduced to
this, that it is exacted as a badge of kiyaltv,
and sign. Tessera, Shibboleth of owning die
authority. Which 1 have at this length en-
deavoured to prove, cannot be conacientioudy
owned by us, in these circumstances. Am
even by this ai|fument : that authority which
we cannot pray ror, we cannot own ; but we can-
not pray for this tyrannical authority : there*
fore, .... the minor I trust is in somemeasoii
made manifest, by what is said 'aliove. And w
I conclude this head, with that form of prayer,
that I use for the king. ** O Lord God, to
whom vengeance belongeth, shew thyseff;
lift up thyself, thou judge of the eatth, reader
arewanl to the proud. Lord, liow longsliall
the wicked? how long shall the wicked tri-
umph ? shall the throne of iniquity have fel-
lowship with thee, that frameth mischief by a
law ? The mighty and terrible God destroy ill
kings and people, that put to tbeir hand lo aher
and destroy the House of God . Overtaro, orer-
tum, overturn this throne of tyranny, and ktit
be no more, until he come whose r^t it is.**
318. Proceedings against Sir Hugh Campbell, Laird of Cesnock,
for Treason: 36 Charles II. a. d. 16*84. [Wodrow's History
of the Sufferings of the Church of Scotland.* Records of
Privy Councilj and Records of Justiciary of Scotland.]
August 16, 1683.
1 HE Council appoint the King's Advocate
to raise a process of Treason against the earl
of Lowdon, lord Melvil, sir John Cochran of
Ochiltree, John Cochran his sou, sir Hugh
* Mr. Laing, in his History of Scotland,
deservedly places prreat reliance on Wodrow*s
work, and upon diiiureut occasions gives proofs
of its authenticity and hears testimony to the
merits of the author. Lord Hailes does not
speak with very great reverence of the saga-
city of any of the Kcclesiastical Historians of
Scotland. ' ISee his Historical Memorials con-
cerning the Pfovlncial Councils of Scottish
Clergy* &c. At p. £9, of that tract, he says
in a Note, '< Keith was as incapable of dc-
crriving as he was of judging. 1 can make no
better excuse for this useful labourer in the
History of Scotland. When I say more for
Calderwoo<l dud Wodrow, let me be termed
paxliai and pejudiced." It touit be adnuUied,
Campbel of Cesnock elder Campbell of
Cesnock younger, the laird of Kowallan dder
and younger, Montgomery of Lmf
shaw, Fairly oi* Brunsfield, Btuy
of Jerviswood, Crawford younger m
Crawfordhind, Stuart of Cultness, and
that Wodrow 's work not unfrequently exhibits
indications of credulity, and an inclination to
the notion of particular providential jadg-
ments.
The following is Burnetts account of tbt
proceedings against the Campbells:
*' When Castairs was put to the toitue, and
came to capitulate in order to the makings
discovery, he got a promise from the ooupcflt
that no use should be made of bis depoflliM
against any person whatsoever. He in his de-
position said somewhat that hrouffbt ar Hagk
Cambell and his son under the gu3t oftumnii
who had been taken up in LoMon two yctit
bdbre, and were kept lo priiQD iJl Hw wl|jl%
881] STATE TRIALS, 36 Ch aries H* i684.— Sir Hugh Camphell [928
■ Denholtn of Westaliiels, who hemg cited
M|A»re tlie late Justice-air^ upon seteral |M)iiils
^BTreaJiOD« it wti^ made appear to them that
^rtiie time of their cilation they were out of
the kin^iIom«
Nov. 3. The i^rocediu'e of the Scots coon-
c*U at Loudoo in ttiis mattiTi in read at Edin-
hurg^h, aod insert in die rcgistcM. *■ At White-
hall October 22, 1683, present the kiiiff *a nm-
jerty, his royal highness the duk^ ot York,
the earlfe of Murray, Miildkioo, Hunderlaiid,
Mar, Airly, Aucnim^ Broadalbinf the treasurer-
depute, justice clerk* ailvocate» and Jtjha Wed-
derborn of Gosford ; his Majesty, with ad-
vice of his privy council^ orders the liird of
»ie earl of T^Ielfort ^ot the promise of his
Itle, which uas ahout 1^000/. a year, as soon
he should be eotii'icted of high treason. 8o
an act Has hrou^ht iu, nhich was to bst only
six weekii ; and enacted, that if wilbin that
time aoy of the piiry couucil would dc{H>se
thai any man was proved to he g-uilty of hig-h
trc&sodf he should upon such a |>roof he at-
tainted. Upon which, as soon as the act was
past, four of the privy council stood np, and
aflirfned that the Cam bells were proved by
Castairi*$ deposition to be guilty. Upou this
both father and son were brought to the bar,
to see what they had to say, why the senteQce
fthould nut be executed. The old <ri>iit]eman,
then near eighty^ seeing the rain of his laniily
was determined, and that be was coDdemned
tn so unusual a manner, ttx>k couraj^e, and
said, the oppression they had been under bad
driven them to despair, and made tlveni think
liow they might secure their lives and fortunes:
upon this he weut to London, and had some
tneetioGrs with Baillie, and others : that one was
f eot to Scotland to binder all risings r that an
oath of secrecy ^vas indeed offered, but was
. never taken upon all this. Ho it was pretended,
be had confessed the crime, and by ti sbe%v of
mercy they were pardoned; but the earl of
Meliort po^^iesseil himself of their estate. The
eld gentleman died soon after. And very pro-
inlify his death was hastened hy his long and
rigorous jmprisuument, and this unexampled
flooeltision of it; which was so universally
caoixleinned, thut when the news of it was wnt
y||Ji>reign jiarts, it was not easy to make peo-
^Kbelieve it possible.'*
I betiere that 3largai'et, the daughter and
beiress of sir George Campbell of Cesnock,
who appears to have been involved with his
father in this charge of Treason, married Alex-
aod^r Hume, who ;i&sumed her name uf Camp*
IhsII, and became, in 1704, a lord of session by
the title of lord Cesnock. He was second son
of sir Patrick Hume, first earl of March montj
wbom he succeeded in that titie. to 1714, he
senened his seat in the court of session to his
brother «iir Andrew Hume. I\Ientio» is made
«f him in lady Jlurray's Narrative, printed in
the Appendix to Mr. liose's OUenaltoos on
f oxV Hiitoriail Work.
Cesnock and his »on, Rowalbn elder atiif
younger, Crawfordland, Bruuslield, Alexander
Monro of BeaucroftSjJerviswood, Mr. Williaii%
Carstairs, Hepburn tson to Major HepburOt
Spence tservant to the late earl of Argyk^
prisoners at Ijondon ennpcct of high treason^
and snme of them accusefl, to Iw? sent prisyrierp ,
ti> Edinburfrhf to be tried accordin{^ to law, be-
ing Scotsmen,
The English law could not answer the view
they had against them, aud our Scots law is
far more arbitrary, at least the procedure used
at this time wnuUl not have gone down in Eng-
land. AccotdinglVi those uameii were sent
down^ several of tnem I meet with no mor«
in the registers, and can say no further of them ;
hut Iheso who were chiefly levelled at, w^ <
shall meet with in their order. By a letter
from the king, the advocate is ordered to pro-
secute tlie above named persons for treason.
Dec. 10, 1083, The couucil remit it tu th#
bishop of Edinburf^h, treasurer -depute, advo<
cate, and colonel Graham of Claverhouse, t»
consider the several papers sent down from Lon-
don, and to put together what they find con*
eeming tvcry prisoner, and to begin with what
concerns Science, and to endeavour to decypher
the letters.
Feb. 21, 1634. The advocate reports to the
coimcil, that he hath found matter, as he con *
ceived, to insist against sir Hugh Campbel of
Cesnock for Treason, The council Fel>ruary
14th ordain bim to insist; and appoint hirGeorg«
Ijockhart to concur in the said process with tba
Kirtg^s Advocate. * The design of this was
plain enough, to hinder that able lawyer, who
had vexed them so much in the earl of At*
gylc*s process, to be employed by Cesnock.
Accordingly, upon Cesnock *s i>etition, Feb,
iJl, *^ he IS allowed to employ any advocate he
pleases, aod they are warranted to plead, still
excepting sir George Lockhart, he beiiig al-
ready orderei I to assist the king 's advocate, 'l*^*
* The order of the Privy Council ordaining
the Lord Advocate to insist in the trial, is dated
the 14th Fefaruarj* 16*J4, and not the 12lh as
Wodrow has it. It is in these words.
** The lords of bis majesties privy council
having heard and considered a representation,
made by his majesties advocat, that he liad got
probation against hit Hu^b Campbell, of Ces-
nock, elder, sufficient, as he concoaved, to prove
him guilty of treason, or airt and pairt thereof,' \
doe give order and waiTand to his majesties ad*
vocat» to raise and insist in a process of treason
against him before the juslioes, and doe ordain
and require sir George Lockeart advocat, to
concur with the king^s advocat in the said pro-
cess," Privy Council Records, p. 253.
f As to this, the eptry in the Privy Council
Records, is as follows. ** Februarv 21 st 1684,
Anent a petition presented by sir Hugh Camp-
bell of Cesnock, prisoner, within the Tolbootli,
of Edinburgh, shewing that where the |>cti-
tioner being iutbrmed, that there is a process of
treaioa r^ed agaiciit him at the iostauQe of hii
MS] nVVr&TKlALB, aieCHAKLaVn. xStt^Pmntitagt
tm
wttdnlllltid Cenock it not pwt
die plot, but npoii bis MoeHMNB to
, and tbattlie wihwwM wholiad in-
againU him retracted wImb in jodg-
I come noir from die Eeeoidi,
erigiMl Lettere writ by agentjamen praeiitat
the Tirialy^to gifeafbottanddirtiiiot aopewit
of tbe nocem against that worthy genddman
sir HqghCiampM elder ofCieiDodk, aTeryan-
atnlaiiedtodie
tsuDdhsBflibrafalefimiily; and
Tkrial WM pbiply inridiow. and erery thing
npst he^(fat| I diaU give the
r?iew ofit
Hugh was indicted Blarch 17»* and widi
,'i ' ■ ■ '
\ adfooat) and he being sensade that
^js'jm^nity nor bis htws docs net allow any
rocemcd to be prednded of their Just
bat on tbe oontmrie has ordained
to appear for any pannalles, andit is most
for the conrtoel so to doe, yet the peti-
tisner hsTinff applied himself to sir Geoige
LodBeart, aim set eral other lawien to compear
lor him in the said pocess, they absohUdy
they be commanded by TOur
krdships to that^lect, and therefiwe nombly
mpplioiUing tbe cooodll to ordain the said sir
O&Mve liockeart, and any other adrocats their
|oid£ps of comicyi and the petitiooer shall
Oiidi ntt» to adfise, coosalt with, and appear
Ibr him in thasaid process, diat the petitioner
be not deprifed of those legal and just defences
fcahastosffier,andin tbemeantimetoattowthe
teedom to them or any others that can be ser*
noeable to the petitioner, free aocesse. The
lords of his majesties privie councili baving
considered the forsaid petition, doe ffive warrant
nnd allowance to any advocat the petitioner
■hall desire to appear for him, for bb defence
in the processe of treason parsewed against him
before the jostices, at the instance of his ma-
jesties adirocat, excepting sir George Lockeart,
he bdng formerly ordered to concur' with the
Idiij^s advocat, and allows the magistrats of
Bdinbnr^ and keepers of the Tolbooth to give
the petitioner a iitt roum be himseUe ; and his
firiends and advocats to haTo accesse to him, for
preparing his defences, they being always an-
nwmblefor his eaife custody." Friry C!oundl
Beoords, p. S57.
. * The Trial was first appointed to proceed
on the 17th March ; on which day there is the
bUowing entry in the Books of Adjournal.
Intran March 17, 1684.
Sir Hugh CampheU, elder, of Ce8nock,John
Weir of Newton.
Indyted and accosed for being art and part
if the late rebellion, and other treasonable
I mentioned m their dittayes.
' Jhifsswer.— Sir George M^Kenadeof Rose-
lUg^, his mijesties sdTOcat
> §$Mti9mion tn Defence:— Sir P^rick Hnrne,
* VtibwWaiiaiaFliCdMi^Mr.
him John Weir of Newto«i,-itek4
tiU- Apiil, and the Adtocato mkm
Cesnoek, aooordiog to an Ad oT
datadFebrtiary l^tth, by wUeh dr Gains
Locfcbart isappointed to ooncor wiih the Ai*
vocato m this process. That <
is ddayed till March *S4,
CB8ifocK> iMDicncDfr. S4tfa Maich Itti
Stf Hngh qamphel of CesMMk uilifllBimrf
aooosed, thft irhirfi^ nntiriihslMidini Iqr Ai
lawaand niiff irf pirinmnnt nf thlsiisinii,
and constant nraoticfc tfaerao^ tbe lisiflgsf hii
Mi^iesty's sobyecto, or any number afaoa is
anna, without and contrary to his MsjsM
command, wanrant and authority, and m td-
ing, abetting,' assistmg, resc '*
intereommoning, or keapini
with open and manifest rsbds^ and the s^
hoondmg or ratihabitmg of tham, or dnsg
them any fitroors, are cnmeaof high traam
and ponisbsbk) with fotfeilnre «nA» hail
and goods ; and by the 3 Act, 1 PteL liqf
Jam. 1. it is statute < That noman whelMihir
* the king's person under the pun af IbrfalMe
<of hfe, lands and goods; andhydwARbtat
<of bis Majesty's fiist session ef hiatal »
<hament,it isdedafed,That itshalbsljj|h
< treason to the solgecta of this khigiwi, sr
^ any number of them, more or 1sm» \ifm
< any ground or pretext whatsomevar, to aai«
^ contmue m arms, to make peace, orwir,«
* suy treaties, or leaguea with ftragn pdMS
* or estates, or amoD|^ themsehFea, witmtlii
^miyerty's special authority and aiiMtnkita
* first interfioncxl thereto.' And all ids aa*
jesty's subjects are discharged, upon any Jis>
text whatsomerer, to attempt any of IMi
things under the pain of tieaaon. Aad ly
thed7act9Darl.Jam. 5, it is dedared, * Tkl
no man willfully maintain, or do Ikfoun ti
open and manitest rebels agauist the kiflf^
* majesty, under the pain of forfeiture ;' mi
by the 144 act, pari. 13. Jam. 6. it is sMtab
and ordained, * That no man openly «r mil*
* riottsly rebel against the king^i person or ss^
* thority, or make war against the ki^^
* lieges ; and that where any declared tni*
Colline Mc*Kenzie, Mr. Walter Pringle, Ife
John Kiocaird, Mr. William Baily, Mr.lUtfl
Mayne, Mr. James Balfour.
** The said day, Mr. Geoige Bannermso||is»
duced an act of privy councili, for i|uiiM[
a^ratinst Cesnoek, whereof the tenor foOovir
(Here is recited the order of the privy coaad
above quoted, but dated the 16th instead of iks
14th as it stands in the Recoid of the Fttif
Councili.)
<< The Lords, at his Majesties Adroesis di*
sire, continues the dyett againat John Wdrtf .
Newtoun, till the 7Ui day of Apvill ^
against sir Hugh CampMl, ^'
ordains witneBBssandT aa^
ana under the pamo of ' fy«
jTjjHSj^r
•♦J
STATE TRIALS, 96 CBAmiBs IL l684.--S£r HugkOmpbell. [998
or nbeb repair in any part of this realm
r of hb Buijesty's heges shall presume
Ml, aopply or intercommune witb tbein,
▼e them meat^ drink, house, harbour, or
relief or comfort, under the same pain
Arhilk they are forfeited, or put to the
; and that immediately, upon Knowledge
beir repairing in the l>ounds, all his Ma-
'^ obedient subjects do their exact dili-
se,at the utmostaf their power, in search-
seeking, taking and ai^prehending of
laid declaired traitors, and presenting them
istice, or in following of tlieni while they
dcen, and expelled, and put out of the
i ; and immediately to make intimation
le magistrates and persons of power and
lority m the next shire, who shall be
en to do the like diligence without delay,
10 from shire to shire, while they be ap-
lended and brought to justice, or "expelled
pat forth of the realm ; and tliat they,
I all possible speed, certify his majesty,
me of his secret council, or some of the
f persons of authority and credit ihvclliug
lin the same shire, that such i>ci-sons are
in the same, wandering athoit the
itry, or lurking in any part thereof, under
pun that the traitors or rebels ouglit to
e tiKtained in bodies or goods themsclTes,
■e they had been apprehended, present-
id convict byjustice ;' and by the 14 act,
I. Jam. S, it IS declared, 'l^hat all who
I reset such as are justified for crymes,
e crimes be notour, or the trespasser con-
•r declared guilty, are ordained to be
fhed as the pnncipal trespasser ;' and by
act 7 pari. Jam. 5, it is statute, « That no
, wittingly or wilfully, reset, supply,
itain, defend, or do favours to any of his
sty *8 rebels, and being at the horn, within
' houses, bounds, lands, or bailiarics,
r the pain of death and confiscation of
moveables.' And by ih« common law,
uad acts of parliament of this kingdom,
ing out and ratihabition, or art and part,
isbable as the principal crime. Yet ne-
less it is of verity, that the said sir Hugh
bel elder of Cesnock, shaking oil all
TGod, respect and regard to his majesty's
ad authority, has presumed to commit,
gailty of the said crimes, in so far as
lody and sacrilegious murderers of the
chbisbop of St. Andrews, and their ac-
ioes, to the number of nine or ten thou-
MTing, in the months of May, or June,
riwn and appeared with arms within the
n shires, in a dcsprrate and avowed rc-
I against his majesty and his authority,
f bunit his laws and acts of parliament,
inicd treasonable declai-ations and pro-
tioDS at public market- crosses, kille<l and
flttd several of his soldiers at Drumclo;^,
bed the city of (ilasgow, ro!>lm(l and li-
m ffoods and houses of his Majesty's
Vn^eotay marched up and df:wri the
J M a warlike and military imstnrc,
OMMOili' of yruTf rendezvoused, exer-
cised, appointed commanders, and oflksn
over them, and continued in open and
avowed rebellion, oonuuitting all acts of
hostility and high treason till the 23d day of
June the said year, that they were defeat at
Both wel- bridge. The said sur Hugh Campbcl
having, upon one, or other of the days of the
said month of Juue, 1679, met with Daniel
Crawford in Cralstoun, Thomas Ingrham in
BoAinds, John Ferguson in Catharmgill, and
several other of the said rebels, at or near the
bridge-end of Galstoun, coming from the rebels
then in arms, whom they lefl at Tolcross-park
near Gla^pow, the pannal asked them wneio
they had teen ; and when tliey had told him that
thev came from the Westland army, he said that
he had seen more going to them than coming
from them. And having asked them if thej
were to return ; they told him, they knew noL
Whereupon he treasenablv, contrary to his al^
legiance and duty, said, that he liked not ran-
aways, and that they should get help if they
would bide by it, and bade them take coaragt,
or some such like words to that purpose.
Wherethrough the said su: Hugh Gampbel m
guilty of intercommuning with notour rdiels,
3iey having tokl him that they had come from
the* Westland army at Tolcross-park ; and the
said panners not apprehending of the said
rebels, and giving intimation to the next ma>
gislrate. And also he was guilty and culpable
of giving a treasonable counsel and advice, to
go back and return to the rebellious army, and
also encouraging and hounding them out there-
to. And also of ratihabiting, maintaining and
fortifying the said rebels in their treasonable
designs of rebellion, by telling, they should not
want help if they would bide by it ; and there-
by he was guilty of the said roiellion, and ao^
ccssory thereto, and art and part thereof:
which bcin£r found by an assize, he ought to
)>e punished with the loss and forfeiture of life,
lands, and goods, conform to the said laws and
acts of parliament, to the terror and example of
others to commit the like hereafter.
2. Ye are also indicted and accused, that
whereas, notwitlistanding by the laws and acta
of parliament of this kingdom, and constant
jiractick thereof, particularly by the 37 act, 9
pari. James 1. it is statute, Thiat no man wil«
fully maintain or do favours to open and ma-
nifest rebels against the king's majesty, under
the pain of forfeiture. And by the 14 act, 6
pari. James 2, it is declared. That all who shall
reset such as arc justified for crimes, if the
crimes be notour, or the trespasser convict or
dnclarcd guilty are ordained to be punished as
. the principal trespasser. And by the 97 act, T
I pari ,li inrs 5, it is statute, that no man wit-
I ting! V or willingly, rosct, supply, maintain, de«
I fend,' or do favours to any of his majesty's re-
bels, and lifing at home within their houses,
bounds, land, or bniliaries, under the pain of
death and confiscation of moveables. Andbj
the 114 act, 1(2 pari. James 6, it is statute and
onlainetl, that no man, openly or notourly, re-
bel against the king's person or authority^ or
m power^ in
(t?Bni1iDg ihettt
wbiie tboy
Milof tlie aijire,
to III*: ma-
_ . aulhoiitv^,
N holden to do iiie
|l^»<|9lilk«ii«led andbroti^bt
iiM tttd put fortli of the
l|i»^, wiib all ucttsible &peed,
4rioni€ of hw stctBi coun-
chii^' persons of autbority
f witbLti the s^id shire, that
nithin tbe same, waiiilrin)^
I v^ or Uirking in any part therti-
mm Ibat tbo traitors and rebeb
■yiflaina], in tbelr bc^ilies an J
m case ibey had been ap-
', and conrict by justice.
law, lawp^ and act^ of par-
kL&gdoo3| bounding' out, or ra-
%rt and part is puniibabie as tbe
IM^ N^fcrtbeleas it ii of verity,
Uii^h Campbel, to evidence yet
ifkked and tiaiterous deglgn of con*
lit« rebdhon iu tbe year 1579 ; and
ild, ^s far oa wa£ in your power,
iberttOp by boiiniling, kvyiDg, sentl-
>, according as ye did promise to
isiji, DajiieS C riivv ford. Job u Fcr-
^ygl^ feiMt^bera mentioned in bi» former in-
XjgHllIk ibivt ha did send out to tbe said re-
SpSi ^^ tc'uints and servants af\er ^f>e(>etleil,
^1^ Mf. J AUK'S Brown bii chaplain, Geoc^e
Croftb^d, Jamei Hutcbifl«n in
Robert Parker in Wester Lentini',
lt««burgh» mason in Gal^toun, Hcclor
m Ceinorrk-yarilst Ijngb ^eikon in
k^uii* John Brown younger iu Pric^tland,
Wood ID High-sJde» John Lamhie in
w, Alexander Mitcbel in Priestlami,
Hutcibison in Undenvoijd, Maltiiew
Uru»hMlni, Janics Richmond in Law-
M llnnler in SbihngbilU George
ifwrrphant in Bankhou^e, William Har-
in Hickartoun, — ^ Glasford in
l^^tlii^ Kitiimrl Uos!i in Netbertouu, John
V^UMi t^ tt^itk, Uairick Gainil, James Lambie
J|»»ifi'tt. llri^h VVitKOn in Bumtbotf Francis
ISfU '.u K<u^wlit (id, and several others ; at ttie
1^ ^ > L I if g;c>nc a nt to the ^id rebel lion,
uu.' ' " 'thcr*5rtt, his did reset tbem upon
^wwod* 1^ it bout enquiring wbere tbey
, wr i*hy tliey had hfHin so long absent
III *^ 4*yi(«f^u« mil eritital a tlioei wh«ii it wa^
carried oni
dottniction of the]
this hi* oadre i
naxchy theroia
iwet, m hi
want out
and liTed rery bow hk owa gate bcfi
nbdUoo, and tbougfa he owned Ibefbre 1
▼ants in his familv; th^lie had hea in
bdlioQ,so that the same ooidd not hot 1
tourtohim, yet he entortained him tm
uierein fawisDeii} ana Bee
his Fm hooie, Wnfiam CAbm
t of his nenndtothe oaidrd
edtbesaidMr.Jan^firowD, anoloik
riog^eadingfiflld-prcidier, as his chanlai
family, and the peisons alMifenaniea bd
tenants and senrantSt and hanitf jpsne.
n. anamune
his grmmd to therdieUion,
thmafier hairing letorned tfaeieto, and
eforsinee living therein, and he himadi
op and down among Umou, 80 that, mj
obliged to have enqniied wheie tbey w
he oould notlmow, that they woe out
rebeU&Hi^, especially seeing their being \
aamewae notour mthe ooontry, aM)
them' were his own domestick scitinli
li?ed in his own house. Wheiedaom
said sir Ha^ Campbel haa moat trassi
oontrired, oontriboted to, hoonde^ an
oot persons to the late rebellion, lias haih
rekeL.sopplied, entertamed, conrcrsed
and done &vonrs to open,noloaraMlmi
traitors and rd»ds, ana was actor, art an
with the same, and of the other treas
crimes above specified; which beii^
by an assize, you ought be nooished
forfeiture of life, lands and goooi, to the
and example of o(hers to commit the liki
afler.
S. The said sir Hugh Campbel is f
bdicted, and accused upon the Uws as
of parliament mentioned in his former i
ments, for the treasonable harbooiioi
setting, entertaining, corresponding wit!
doing favours to notour, open and mi
traitors and rebels, encouraging than ii
rebellious practices,: and diswading tbt
submit to his majesty's authority; ini
as Alexander Paterson in Balgray his t
having, upon the first, second, third, on
other of the days, or one or other of them
of the year 168?, advertised liim of his b
been in the rebellion, and of his wilUngs
submit to his majesty's authority, and a
bis advice as to what he should do, be dii
swade him and desired him to go hornet
work until he sent for him, and so be'eont
his tenant, notwithstanding he knew i
being in the said rebellion. As also h
on one or other days of the month of «
1679, go to tbe bunal of Captain €
bei. who wii drowned in the water of CMi
as he was going to the said lebdliso Mi|
through he committed, and was gn^ I
treasonable
STATE TRIALS, 3G Chailes IL l68i.-.Sir Hugh Campbeth {930
[It is remarkable thai tliei*e n iio menlion o
this Order in the Privy Council Record, where
there is iia cnlry at iilu of this date.]
'* Th<? naimail and bis |ir(icuralors beiog' eaU*—
ed to the barr, aud etjquireil if ihey fouudi
any objection upon Daniel Craulurd in Oy
bein^ mfonned of late that such as are to 1
ailduced witnesses being' to he s^ircn in list t<f
pannaU, are oti ty mes practisc'd ui'ter iheirnames
are kaown by the late regulations, so that it
cannot be dear who will be proving witocsses,
whereby the must guilty inay c^acup^^ aud
thinking' it luo^t secure fuV our people to trust
the previous cxamiuation cither belore or after
citation to you the learued judges, wtio of all
others are the most iiv»^i»':i'/ - » -d and iudiiTcrenl.
We doe therefore i I to yoti that if
our prity council sIj i. ucM!i.'v^Arv prc-
vioublie to examioe any who urt ta ht» aDiUiced
witnesses you viih examine them <i|>i>n oulU
accordinijrhc. So that our tutvo*!Ht may bt se-
cure luiw to laanMge sudi proi^<?s«, v^htireia
you will do us accept alile serrict^, for vi'hicfa
this shall be your trarran'J. Aud *o u-i*
you heartily farewell. GiK*n al nur c<»iiri i
\VhythalU the aoth day of Dec<iml>pr lOBlJ
and ol our reignc lb$ ihrcttie four years, 15|
his mu|t£stiebi coiuniaud.
ii;c Subncrtifitur^ Mjddleton.**
*• A lacryer who understand;} criminal formi
»nd the reasons of theoi, would l^e in c^»e to*
make ample observes u|Mm this Letter. As
u a£ tiistfHnary in this time, thm practice here
had l>t*en tried by the luanagi'rs, twfore the
king's authdnty wm inter|K)setJ ; ami ihia w»g
the way now, first to do uttretisonuhle ilnn^,
aud then to engage the kin;^ to require Ihctn to
be done. It is very evident, this lueihod w;
tkllen on to expiscale matter of criminal ptv
eeaa ajfainst gentlpmeu and others, to secure
their evidence, and keep it secret Itkewi&c^ till
it was past time for the panneln to ^et defences.
There i^ here much more than a precog-mtion,
and the matter is by oath fixed us far as it it,
poBstble to be ; ana it appears very bard this
should be donc^ aud parties not pre<<rent to mvm
wlmt exceptions and light they couhl for tuetr
own defence. And when once the witnessei
had made their declaration u(ion oath, tbe;^
could not resile without the charife of perjury,
when ihey came to hear eridenee in causa, nni
before the asbize. By this Letter iDflcx'd ihd
Lords of the Justiciary, aic to take the wit*
nesses oaths, which how far it atp-ee'j with
judges before they come to judtje directly, I
must leave to others ; but this is only when tho
council by this upon them ; and the council
themselves had pow er, or assumed it to do this ;
yea, ntany times it was left entirely to tlie imU
vacate lo'do it, who was evidently a party is
these cases," Wodrovr.
** His Majesty's Advocate, with us, exaiDineaj
parties aud \ritnesscs, before the process b^l
lulented, w htch he doth U[K*n pretext ihut h« j
may thereby know how to libel exactly^ aod tm I
I pmrt thereof; which beings found
'"f" ^"*'^it to be punished with for-
|i) ind i^CKMiS) in the terror
.: cUe like hereafter.
atneration of the Counsel on both
I is tnserte<i in the Record ai\er this
itt» the name of sir Geor^ Lockart
t for the erovvu, in udditioo to the enu-
I on the Uth. The ficcord then pro*
.it>s Adror4\t produced the pre-
a. ot duhe exe<:ute, and repeated
! ursewiug the pimn;^!! recorded
^ Advocat havin^ desired the
ug^ to his roujpsliea letter to
itiet^e* previoushe before any
■lOfT m a cose uf treason.
^» IVailter Pringle, tor the panncl, ulledg-
by the letter direct by his majesty
gJil to be previous wan'and from the
sfor* wiy examitiation ; which is tiot
1 so no pre% ious examinatioo cati
( protluced.
^ isfies Advocat answered, that he
rarraud from the coimcdl for pur-
nnei, w hich is produced and read,
imvi for the haill procedure in the
i OS to ex Aiui nation and try all The
I lo crivi> Hn<vv<>r till they should
pritu his t) \vy councdK
riry i ivinif presently con -
Ht, bis ttmjesttis advocat repoit-
urt the act and warraud under-
N'SVRCH, March ^4, J 684,
I of his majesties privy councill,
sred a representation niade lie his
,,cat of the necessity of a prex ious
of the witnesses adduced in the
^Ja instance a^tnsl the laird of Ces
I eonfonne to Im majesties letter to
_j of the aoth December 1687, give
I to Ibe Jiislioea to examine these wit-
— ^iiiushe.* Extract by me,
U4M PiTiRsoN, CI. Sec, Con.**
jJKIng'i Letter to the Lords of JumIi-
— * nd. relative to the previous exa-
is recordetl in the Books
II . Lb of Jauuar)' WS'S. It
mulitf and well beloved cousin
IVoar, right tnistie and well Wlov-
jloum, and tnistie and wdl beloved,
you well. It bein^* always our
to ^reyent the increass of disorder
Ifioii, m that our ancient kingdom,
bv txng^ forces to sunpreaa
\s by cmpl«>in8^ learn*
juuges, who may discourage
urrei^ous by discovering' and
eb as axf guilty th«r^f, md
931] STATE TRIALS, 36 Charles II. l6$^^Proceedh^i agmui [93!
stoune, his being designed in tlie list of wit-
nesses given tu the pan nail Danicll Caraiichael
in Galstoun, but who is rightlic named and de-
signed in the body of the dittav given first to
the pannall, and is since given him in list under
his true name and designation. They declare
they pass from any designation— [It is so
written in the Record, but this should clearly
be objection and not designation. This part of
the Record seems very carelessly written. —
The words * advocate' and * took' inserted be-
low in brackets, appear requisite to complete
the sense.] — competent to them upon that
head, for casting the said Daniel Craufurd
as a witness. Wherenpou his majesties [ad-
rocate] asked and [took] insfruments."
" The said day the Warrant of Privy Counsel
anthorising advocats to appear for the pannall,
was produced and read before the said lords,
whereof the tenor follows." (As already ex-
tracted from the Privy Council Record, dated
$1 February, p. 922.)
Wodrow proceeds thus :
"After his Indictment is read at the bar, Ccs-
nock himself opened his ease in a long and pa-
thetical Speecn, wherein he insist e«l mostly
upon those points. " That though scvi'ral
field conventicles had been kept in tlie country
where he lived, yet he bad pcrmirteil none to
. be upon bis ground ; that neither himself, chil-
dren, or servants, had been present at any of
them ; that as he kept his own parish church
regidarly, so missing two <if his servants there
one Lord's day, he oausetl them to be kept out
of his gates till tlie sabbath was over, and next
moming called fur tht'iii, paid them their
wages, and dismissed them ; that during the
time of the libelled rebi'llion, he w^s so fur iVotii /
encouraging it, that he retired to (Jilchrist, |
(perhaps writ for Ciilcherscrofi) a strong house,
and abode thfre till it was over; thai lie h;ul
put off his ground all his tenants who were
aaid to be at Builiuel, as soon as tlicy were
convict ; that if he \. us found guilty in that
matter, he was most willing to uudeily^lie law,
but he knew he was iimorfnt ; that one of the
whnesses adduced a^fainst him he never saw
befoix*, as far as he k»<nv, but could prove he
luul declared in so verul pUccs, that U^ would
do Ccsaock auill turn, Uj^nuse he luid inf irmed
the end he may not vc\ parties, if he iind no
{(round for the pursuit. Ik.t many learned
lawyers have silwwys thought this procedure
dangerous, fur his iua)esty's advocate is still a
par^ interested, and so should not be allowed
to deal with the \\ itiies.-^' es ; for thereby he mny
strain from tht* in whai otherwise they would j
Dot depone. And if in our lust n formation of
the justice court, it was found, that iiie Icing's
advocate should not make the vo\[ of assizers,
because he is too much interested, much less •
should he, for the same reason, be allowed to ;
examine the witnc^es, since that is not allowed
to the advocates for the defenders." Mackcn- 1
zia*s Criminals^ part 2. tit. 20, sec. 2.
abont a murder he (the witness; Ivid^ommiltal.
In short, as to other defences, he remitted him-
self to his advocates."
The Advocates ibr the Panne! were sir John
Lawder, sir Patrick Hume, Mr. Walter l^rin-
gle, Mr. William Fletcher, Mr. John Kincud,
Mr. Colin Mackenzie, Mr. Robert Main, Mr.
William Baily, Mr. James Balfbm-. After
reading the Indictment, the King's Advocate
moved' that the Justices might examine the
witnesses previously before any trial, this being;
a case of treason, and alledged a letter limn
bis majesty to this effiect. Mr. Pringle auircr-
ed, that a previous Warrant ought first to be
given by the council, in terms of the King's
Letter, which was not produced. The Adn>-
cate replied, his Warrant produced was as to
the whole process, and no more was needfoi
The Lords delayed to dcterounc till they sdrii-
eil with the Privy Council.
This little bit of form was soon got over; a
council was immediately called, and th6 Advo-
cate bad a Warrant given him. *' Edinbofgh,
March 24, the Ijords of Coiincill having eoa-
sidered a representation by his Majesty's Advo
catc, of the necessity of the orevious tmsi-
nation of witni sses m Cesnock's proecsB, ia^
conform to his Majesty's Letter to the jnstioB,
Decembt^r 30, 1G82, gife warrant to then te
examine thos4; witnesses previously." Vlhm
this was produced, the i lawyers entered Qpoa
the cause. Cesnock's Advocates pleaded a! i
great length, and with much force of resMi,
and the King's Advocate said all so Ql a casM
could bear. In this extraurdinarv Case, tf
which no account has been yet publiNhed, At
curious rea«ler will incline to 'have the DebsM
as they stand in the Registers. Accordiofflj,
I have added the Defences «f Cesnock's Aorot
cates.
Cesnock's Advocates Defences.
Sir Patrick Hume, for the pannel, slledge^
always denying the indictments and haill ar>
tides and qualitications thereof. And as to tbe
first indictment ; whereas it is alledged that
the defender did intercommune with the nbek
in so iar as he having met with Daniel Craw*
ford, and the other persons mentioned in tbc
libel at or near the bridge of Galstoun, as tbey
were coming from the rebels then in ansa,
whom they lefl at Tolcross-park, and didspaifc
and discourse with them. It is answered, ina-
That it is not relevant, unless his Majestf^
Advocate condescend upon the particalar «n|
that these persons past tlie bridge of GaKtoua,
which if he will do, the defender positifcij
oflcrs to pro\e that he was alibi, and (Iiat M
was at home at his own house of Cesuock tf
that day.
2do. The libel is not relevant to infer inler-
commnning; seeing it licars, the* defends
only met with them by the way, and tbe aia-
pie meeting of persons in the high -way, wbkb
was only accidental, and the asking then fn<i
whence tliey came, and whither they w<0*
going, neither by our hw, nor any law n^
I
e:
STATE TRIALS, 56 Chahlks TL i6Si^Sir Hugh CampbtlL [SSi
especialK seeing ibe »Iiifen(ler wjw tie? er hi-
flicrto tamtetl wlh liistaynlty, but on ihe <xra-
trary wji^i rcaJv iijhmi all occasions^ to testify
1 alfoclitiij io thit kiii^\ ««?mce» and
I Ul conventicles, whicb are the
wfirid, ran infer tnlercommunln^ diftrliariied
bjf ibi* bw, *-^ • '- "■; * Sr umlerstfjoa in
iCe ri*i« n» u iK-e by lettei-*,
.,. at rtf tiiiiign, in
i the rebel lion, tind
; > in tbe Itigb-uay ;
>ui>i{ tban upon
i[ tvad mi't nny
reb^lh, and \vMi u&ked ul
oatDC^ or wbulier be was
ttid ha.ll iui^uircd Ibr new* concerning-
li^ «s was very orrbnnry at that time,
' ' liiliy of intercomniunmg;
■ * iniugiue,
M- tuen d^^larcd tbey came
uf tbt rrbtlfe in the wesi, yei
not .>Kh.,-.-.rl tn L-„nxv Ih r, I ilir-i-
\ fur many went there who had no de-
I concur in tberebclhon* For it is no-
fknown that jiorne went to bring back
nnd s;o*hIs tliat were taken away
H to briiitf back their cbif-
» sucli rebellious courses,
'ecu denounced
'i of the >*hire
iv,K zi, \i L.-uiii lie iiv» eritneto sneak
irae vvitb them, or not tu apprehend
ttot to make iutiniaTioti to the nc.vt
lu i,^ c'lt'ar from iUG act, parL 12,
Iv uliich it 18 expressly provided^
itaiitii of the ^$htre are not put
' converse or interconnnune
tl iiey tie dcnoun'^cd 10 the
h crt>*is of the Hhire where
31^' uuil alia it tbey had been for-
mic, and der 111 red and denounced
itli not, vet tlie intercom-
I ij- Willi ibeio being only
Ally it cannot infer the
ri, as is clear from his
'T' >n In April last.
ii, that ihe defender
> >uus at the bridge*
vftfstuun, he shuiiid have said to them
uoi ri;n:iArayi, and so 1^ guilty of
le counsel artd advtce to
i ihe rvMn. It* is an-
ilic tvurds do not import counsel
I these person ii to g^o back to tJie
' J e\[ires>iions Citn never
, ihi' crime of tieai^ou,
rpcrly and p(»ttilively in-
Fill* ilirse woittn do not full
„i Is of parlianiciit libelled
ouly ai^ain^t fhe fWmg in
l>iuL(, and the wilful main-
iir to open and manifest
_ . d trailors, or to res^t»
^ffgl^\ lie with them; so that
irini; do not iall under
ufer the crime
riple in law,
practical non
aal statutes^
ruuv, iui t^vprew wordft}
' titbetur/ And
tWtit«Qikii •
his y
to
reinl mI rrl)ellion, and upon all occa*
sions, and in all companies did always invejg^lt
fljl^ainst I hat e:recr3ble ri»bcllion, and all re-
beUiou.s courses, as bejuy" destructive to th«
king^s inteie^t, the peace, quiet aiid v^eal of the
kingdom.
.^)to. Whereas It is ttbelh d, that the defender
spoke these wordj^, or such like words to that
|HiqMiKe, if not relevant in such general terms ;
ibr seeiniL^ the crime eontiikts in wordx, the
particular words ought to be expresi and con-
descended upon in tlie libel, otherwise it is not
relevant,
Oto. Albeit the words mentioned in the in-
diclntem, should amount to treasonable ex-
pi'e&sions, yet tlie defender is secure by hl»
majesty ^s gracious act of indemnity in July
161 9 1 by v^bich his sacred omjesty lor tbV
treasons 'and cau^ics therein mentionedt *lo€»
expressly indemnify all such as have spokeit,
written, printeil} published, or dispersed any
traitorous speeches, or have advisH any thing'
contrary to tbi£ laws ; and generally all sucn
as arc liable for any pursuit or occasion relating
to any public administration, by convincings
'actings or op|M»«itions, or otherwise, preceding
the date hereof, declaring' the ffcncrality Oi
these presents, to be as effectual to all intents
and (lurposes^ as if every circumstance of
every une of the foresaid delinquencies or mis-
demeanours were particularly and speciaUjr
tlierein insert ; and that every one of llie per*-
sons that mt^ht be challeng^u or pursued foM
the same, hud a remission under the grem
seal or an act of indemnity past in bis favour
disc barging- any of bis majesty ^s otlicers ot '
subjet'ts to pm^sue any person or persons upott
such accuuntf either ad jirivafam or vitntjctam
jiUbUcam^ or ttt upbraid ihem therewith, and
commanding; all the judges to interpret tliis his
majesty's remissiot), witti all possible latitud#|
and favour, as they will be onswemble upon tlMij
liig'liest peril.
As to the second additional indictment, at*
ways denying the same, whereas it is alledgcdL ■
that Ihe defender wiis guilty in cotitrivinjj oti
the late rclielliou, in the year IG79, ana dill J
conuibuti- thereto, by hounding, levyinir and I
sending out men, as he ha«l ]>romised tQ Tho-
mas Iti^rham, and the other nersons nien*
tinned in the first in^lictment, ana that lie had '
«ent out to the rebellion, the tenants and ser-
vants mentioned in the snid indictment ; al
least bBving* gone out to the rctK^llion, ha
thereafter reset them upon his jfround. It i
answered, Imo. Tbatri is a great mistake, for
it is not so much as lil»elletl in the first in-
dictment, that the defender promised toTlio-
mas In^rham atid the other nersons therein
mentioned, to send out mcu to the n-hcllioo.
tjdu. It is ahsohitety dented^ that the pan*
nel did scud out these or other persoaa to tk^
9S51 STATE TRIALS, 36 Chablbs II. l6S4.^Proceeiing$ agmn^ [OSS
l^bellioD, and the tenants going out to the re-
bellion, cannot make the master liable as a
contri?er, unless they went out by bis express
order.
diio. Albeit the defender hail reset any of
the persons mentioned in the indictment, on
bis ground after the rebellion, yet it was not
relevant to infer the crime of treason, far less
to make him a contriver, because it is offered to
be proven, that these persons did either take
the bond debito tempore^ obliging themselves
never to ri^ in arms against his majesty or
bis authority, and so it was no crime to reset
them, or they were fewars,and he could not re-
move them i or they were tenants to other men,
and so he could not be liable as resetting them
on his ground, or if any of these persons had
been in tlie rebellion, it was never known to
tlie defender, or they were not declared rebels,
or in any porteous roll, or denounced.
4to. As to Blr. James Brown, it is positively
offered to be proven, that he removed out of
the delender's family ^bout fifteen months be-
fore the rebellion, and was never a servant
thereafter in his family, bnt was servant to the
deceast lord Craigy lord justice clerk ; and if
at any time thcieafter the said Mr. James
came to his i.ouse , it was only transiently for
a night's tiir.c, and no man could refuse to
give a night's lodpjng to one that was a scr-
Tant to an officer of state : and the said Mr.
James Br'j\vn did continue a servant to the
lonl Ci-aigy till he died, and thereafter was a
servant to Baldoon, but was never a servant in
the deleudcr s family afler the rebellion, nor
lor lifti-cn months betore.
5to. As to William Gilmorr, the defender
denies he was vwr in ti.e rebellion, or that he
pave iiim a certificate in the terms mentioncfl
inthciii'Uctment.
6. Tiic resetting and iutercommuninc;' whh
the ]iersons n.cntioneil in the indictment, could
be no crime, seeing they were not donoiiiiced
rebels at the Market-cross of the head bur^h
of the shire where tlicy dwell, as is clear from
the 1C6 act, pari. 12. Jam. 6, by wbich it is
jirovided, That albeit denunciation at the
Market- cros.s of Edinburgh, shall be snfhcient
for the iuti-oinitting with the escheat, as the
same had been made at the Market-cross where
they dwell.
As hi the third Indictment, seeing his Majes-
ty's Advocate passes from it,tliv Pannel's Pro-
curators take instruments thereupon.
Mr. IViiliam Fletcher further nllodpfcs for
the pannel, that tlie libel is not relevant. Fnr
1. All criminal libels, especially such, by which
mens lives, fortunes, reputation and posterity
are drawn in (piestion, ought to be founded on
clear and positive law and statute, and the sub-
sumption and criminal fact ought to quadrate
with the la^vs contained in tlic proposition ;
whereas the crnue libelled in this inoirtnient,
consisting of certain sentences and expressions,
l^atliered up five years afler the same are pre*
tended to have been 8|)oken in a transient way,
to penoDS who were passing by, are not found-
ed upon any of the acts of pariiamait libcM^
which do only declare what actions are trenoD-
able, but do not infer forfeiture from light woi
rash words, and the utmost extent as to which
the acts of parliament ^ as to this point, ii
only to punish with forfeiture, such treasonUe
speeches as are malicious and advised, as ap«
pears by second act, second session of his ms-
lesty'g first parliament, where it is declared Is
be treason, * for any person, bj^ wriling, nint-
* ing, preaching, or other malicioaa and aoviifl
* speaking, to express or dtdare tbetr tresMS-
* able intentions, to plot, contrive or ratcotf
* death or destruction to the king's majertj/
And this indictment not bearing that m n-
firessions uere advised and roaUcions, is mC
bunded on the acts of parliament, and ipis
not relevant.
2. It has been the wisdom of the belt go-
verned nations, not to infer the crime of tmaon
fram light words, which may be rashly wnket^
and the import and sense whereof D<un[ "^ *^
sily mistaken : And therefore the HomDiy
who did not allow actions to arise firom ooa-
tracts, and pactions, and words, unlc«tbeMB»
had l>een done by stipulation, or verba ioienm^
took care to provide by their laws, tliat nA
words should not be drawn in consequence, if
appears by the Lex 7 § 3, Di^. ad. Leg. Jri.
Majest. which l)ears, that > lubncum lingme ai
* pccnam facile trahendum non est, quanqon
* temerarii digni poena, sic tainen ut imsiis
*• illis parcendum est, si non tale sit dcUdoBi
* quod vel ex scriptura Icgis descendit, vd sd
' exemplum Ii>gis vindicaudum est.' And \j
the Lex Vinnia Cod. si quis irapcratoii mik-
dixerit, the emperors Theodosius, ArcadiosiBJ
Honorius have declared, that *• si quis improbo
^ pctulantique maledicto nomina nostra cndi*
* derit lacesscnda, ac turbulentus ob trcctitor
*• tem|M>re nostrum fuerit, eum pcenffi noknaoi
* subjug^re, sed, intcgris omnibus, hoc id O0i-
<tram scientiam reteratur, ut ex penaas
' hominis dicta pensemus.' And by tnelavs
of England, the crime of treason cannot W
inferred from bare words or expressions, with-
out an overt or open act, as appears by wktt
that learned lawyer sir £dward Coke hilli
I wriitenin his Institutions, upon the chap. «f
: his^h treason, where he says expressly, ' tkit
<■ divers late acts of parliament hare ordained,
< that compassing by bare words or sayipn,*
shoiild he hi^h treason, but all the&e are eitMr
expelU.Ml or expired, and ic is coiumnoly nid,
that Imiv words may take an hcretick, kitit faiit
words cannot make a traitor, wiihout an OfOt
act. Ad<I the wisflom of the makers oftbii
law would not make words only to be trracM,
seein;>; such variety among the witnesses ahoSt
the same, as fbw of them agree together ; k«t
if the same be set down in writing by tbede-
lintpicnt himself, this is a sufficient o«ert set
within the statute. And the reason of tbcM
laws is, that the various accenting and pro-
nouncing of wonis may give them a diffef^
sense, and that the memory of witnesses msf
be lubrick, and by the costom aad ptacbcs m
957} STATE TRIALS, 36 Chakles
this kiDgrlom, treason hns not been infer reil
from nuked uords nithuut wijt, unless there
had been a long- conlext of sermons anil decla-
mations, whereof tlie &coj)e ami design, a**
W9l\ as ibe wordii tlj em selves, were cfear unU
^idtfot : But treason was nerer interred from
transient words uiiil hidf sentences, wbicli
niigbt be gathered t<)^etli4fr by ignorant
beftrers, who cannot take up the import and
iMSe at a disconrse.
^^B. As to that pnrt of the libel, by which the
Brds I liertin mentioned ateconislrncied to be
EmtUionable counsel and advice of enconnigc-
Ufeeot to the i-ebeU to go Uiick ; tlie words can-
not bear any such construction, and at mobi
iJiey can only amount to a rosb, adviseil und a
^^[sunable speech, and not to miy udvice thut
^■bK rebels nltould return.
^Ci. Albeit the ^urds conid be stretchetl to in-
fer a counsel of rebellion, yet tlie same being
* consilium uuduui, sine iu^itructioue,* it cannot
import an accession to rebellion, which can only
be inferred from Fucb couniels which may be
useful for carrying on the crime ; and law hatb
disting'tn^bed nctwixt an exhortation and a
€«>tinArl to c^jnimit a crime, as appears from tbc
tiist piirBgraph of the institutnin^ de facto,
JHke wnrdsare, * certeipii nuUnm opem ad fur-
^Bm fadendum adhibnit^sed tantumron milium
^k4it, atque bortntusest ad furtum faciendum,
^ Q4m tenetur furti.* And Vinnins upon thisi
pnragrapb says expressly, that * simplex con-
' ^ibijiii sine instruct ione, neminent furlioUigat,
* f]uautiimu!i furtum !i!ecoty in i^it/ And Ul-
|»ianti& in lej/e 50 § pennU. Dig. de furtis. ex-
' iuiog what kind of connsel imports an ac*
■ an to a crime, hath these express wordsj,
onailium dare videtur, qni persnadet et im *
rlUt, atque instruit couifilio ad furtum faci-
■dtim/ And Fapinlan» in Leg. 20, Dig. de
r i^ui notantur iiifamia, says expressly, that,
\ tfut evhortatur, niandutoris opera non fun -
lit 11 IS ^ And thi^ is tlie opinion of Clams,
ag. fin. <^nie5t. 86, who says that it is com-
$nit, Anrl albeit that such u counsel may im-
; the critne of treason, the expression itself
Hg lrt?asonablc, yet it cannot infer art irnd
of the crime of rebellion, when tliat
nefi urjder a distinct consideration from trea-
table speeches,
^\ 5. A« to ibe qnaliHcations of art and part in-
erred from honiidin;^ out and ratihahitLont tlte
same ure no ways rdcvant, and such i|naliflca-
tiofis can only iioptnt aii acces^iou to private
crimen, irliicb are committed Ibr, or in name
of any (iers*m, v, g. in rcienge uf a wrong
dime to him, but not at all in public crimes,
H'hic-h are not committed in c«uileinplation of
ttie party ivho hounds out ratihahites. And
^^erefore lawii-ps are generally of opinion, that
Ip^h hounding ont^ or ratthabttion, does only
BUte [dace in such crtmefct * ubi verlitur in
• teresse privatum^ vel vindictum privatum.'
6, The libel is not relevant in these terms*
thai the pannel spoke the words libelled, nr
mm€ such like words to that purpose, becausp,
* JH cdminibua non licet vagari,' and all c ri-
ll. l6S4,— S«V Hugh Camphll [938
minal libels ought to be clear and distinct, and
especially as appears fnnn Damhudurius, i'rax.
Crim. Cap. 30, Num. 4. where be says. That
* omnes tibellos criminarios ofMirtet esse cLaris-
* simos, and that they ought tt> express * onint*
* crimiuLS perpetniti r^ualitates/ VV herein also
Bartolns and other lawiers u[K>n the Lex 3.
Dig. deaceusationihns, do agree with him. And
ae«tii^ the specilic form of this crime consists- J
in wMs, it 19 necessary that the same should be
(■xprest, ^ nee enim accusata, cum existhnatione
* ahcnte jactura: et discrimine vagan. Dig. de
* rei vind/ And by such a way of libelling Ujc
pannel should be prejudged of bis defences ;
for if the words whifh are to be such hke,
were libelled, he would make it appear that
they are not words to the same purpose, and
that they cannot import the crime of treasiin^
which can only be inferred from clear and li-
i|uid expressions, and thereupon he \vou1d ob-
tain an interlocutor from the lords of jnsli-
ciary as to the relevancy ; and it were a dan-
gerous prepamtive, shouhl points be remilttcd
to an assize : And if this should hold, then
his Majesty^s ad? ocate needed not to libel ajiy ,
further than that the jMirty were guilty oif
treason by giring counsel to reljela in gentra)^
which were most daugeroas and absurd.
As to that quni ideation of (he libel, that tlie
defender ought to have apprchL-ndcd tlie rebels^
conform to lit act, V2 pari- king Jam. vi, the
same is not relevant to infer the conclusion ot
the libel. For it is evident that the act of par-
liunieot could only take place when the country
is peaceabtef but not when armies are in tb<»
fields, for * inter arma silent leges,* and it
would not be expected that any private gentle-
man should, by seizing upon the rebels, ex|>osi»
himself to the fury of a standing army, ami
' qme vis excusat a erimine,' vi^ich consists 1
only in negligence * et non facientlo,*
It hkewisealle4lgedj that tht defender cannol
be called in c|uestton from the crime arising ^
from the words libelleil, in resjtect the smne are <
libelled to be prior to his Majesty's act of in- I
demniiy, which ought to be inviolably observ-
ed : For. i. Amnesties and acts of indemnity ,
and oblivion^ after countries have been nniver-
sally engaged in crimes, 4o become the !^]agnm
Cbarta and fundamental security of the hegi'S^
as to their lives, fortunes and posteriiy. Anj
theretbrc all judges ought to be tender thereof^ ,1
and ratlier to extend nor straiten the same by
their decision and intepretatiou thereof.
2. It is the pubhc interest of the king and
nation, that such public indemnity should take
full effect, seeing the same bears to be made \
for removing all fears and jealonsiL'S of the '
people, which do expose t!iem to commit new* \
crime?i, and the least violating of, or impinginq^ I
upon the very borders of such indemnities, f
doth again open a way for new fears and jen- I
lousies, no man knowing but what is anotltcr
man*s case this day, may be hi* to morrow |
and the interpretation of such indemnities be-
ing drawn from grounds of law, the people
cannot know how tiir they may be overtokeft
93Sf] STATX TRlALSi 36 CHAittRS XL leu.^PrmuUtigs mgMm§t [9
dcbau*^ resoUes otilj to Uke notice of i
four poinU,
t. Tlist ilie irords ^ipokcn nrc Ireoftoo*
2. Tlial Uie roiivc»i«iig: in llicsc terius^ifii
inlercottiQiiiDinc; uiiU ttoU^iir nnd open iri
berehy, ami therefore may relum to diwr
E»rmer npprehensiont ; the consequencfis
¥ hereof ina^ cojiie to he ic.ry flaiigeroui; for
be n^ari; and c^uirt of the kiu^om And it
|bas been the prudence and pulicy of {hm and
nllicr naition^, Muii when chmes did abound | tors, whom be knew to be sucli fnim ibe
nd spread as a contagion* indemnities vrere
iiuted in iitnplc (ciius, and WQSt punctually
pbserved.
3. Alt pardons a; id graccfi of tbdr n\yi na-
ure &!*€ [avounible, and urc in be extended,
trtd crownti are pre&erred hy mercy 36 ivell as
|usticc ; fur, an Sfdomon su\ s» Frov. xx. 28.
Mercy and truth preserve llip kiut^^ and his
^ throne is upholden by mercy.* And it is the
July of the Jndgeii, iniiohibty to nreserire in the nations, rebellion, i
sons Hu»m*i€lvcs,
3. Tbat these w^rds arc rderantjy lib
cjTioad time and plac€, and there is ua p\»iB
alibi hH"e.
4. 'I'hat the word» and conterse beipgf I
sonable, are [\ol taken olT by the act of ii
nity.
As to the first, it is undcniahle, thai, to iJ-
Tis^ people to rebel Ii"* "^ ^^\ *^^** I •«■ '-f ^'1
ninds of bis people^ a &ens«; f»f his rnajesty^ff
odnc^^, in Siccnrio;^ to tbein tbese universal
1 pubhc pardons^ for *■ nulla dote^ nuUo gc-
^ Here Tirtntis mortalitas propius accedit ad di-
Wintc naturicMmtlimdinenj, f^uam misiTeudo
' humanie irnbecillitati, ignotscendo erroribns,
^ et injurias obiiTiscendo.^ And ttiere was never
any kiny; iu the world that has ^ren greater
demonstrations of private bounty andctemeney
to his subject^ than his soi^red rna^ty, and
therefore the indemnity being tiiited to his ma>
jesty's own i-egal leuiper and di<< position, ii
ought not to be sttmitened, but rather enlarg'ed,
if need were, by a rational interpretaUou.
4to. llis m;\iesty halh deelareil his eni^ca
Toluntas, that the to refold indemnity tthould be
internn^ted with all poH^ible latitude and favour,
and hath commanded his judg^ to do the
eame upon no tes!» certification, tliau tlte high-
^ ppfii, which detniitistrates, haw serious his
III ' all lieen, that all the imperfections of
I- ^ should be eovereilj and that nothing
mi- III rruiain which might give them the least
jeaiuusy in time coming.
6to. lly the iCth act, 7 Pari. K, Jam. 1, it
is exnressly ordained, * That no man interpret
' the king's statutes otherwise than the statutes
* bear, and to the intent and etfect they were
** made for, and as the maker of them under-
* stood, and vrhoso does in the contrary, to be
* punished at the king*s will.' And this act of
indemnity being one df his majesty^s statutes
and proclamations, whereto the peace and se-
curity of the kingdom is liighly concerned,
ihe sense and extent ihei'eof ought not to he
wreated and inverted contrary to his majcsty^s
meaning and die propriety of the words ; and
I majesty having expressly indemnified atl
ooable sjM^eehciJ and adrices contrary to
, unitn ivliirli general, the worfU men-
tioned in tli rii iire genuinly and na-
turally coi! - 1; for it is evident* that
the general nuttun ol treasonable discourse doth
eom|fr«head the saxnc*
KmG^s Adtocate^s Answers.
Uis Majesty's Advocate craves Icaye to de-
part, thai he is very much astonished to hear,
that, by our law, it is not treason to bound out
jaen te rcbeUion, and tbereforei to shorteo Ibe
only in words, a^ all _
though there be no particular act of pirjji
mcnt, dec bring the ad fisiitg tti ri«5P m rrli l^ r
(o be treason, yet all acts of \-
deckre any crime to be prnmli
more punishable by Uvasou, do, hy aii iui4liib>
and necessary cooseijuetice, declare the id*
vising that crime, or tnat f treason, lo
bo punishable as the crini ^d a speeifti
law wete needless i and \mhi us particuiirijf,
art and part of tre^ison is treason by stutuUf.
and counsel atid to udvise> is tiie ht^lieiU
(qualification of art atid part, because it prt$
life, and courage, and being to the crime : not
can it be deniwl, that if the doctrine uf tli»
defence \vcre sustained, any raati tniglit n
present go up .ind down the whole wcsl* ao4
invite and hound out to a relieUioo, ami m\m
can doubt but he would be highly -
rebellion, who did tfius raise a rub.
advice certainly is far more ■' lu^a
action, and so sliotild he in ^Mt,
, Nor can it be denied, but if theu \^ • - -
f Cesnock, the pannel, did more c*
' the rebellion, than these pitiful cit^ - -^
advised, his prudence, influence and inli^ctf
I beinjf extraordinarily greater tlian thfir nnlotiJ
< could ha\e been. Likeas it is as >
that, by the Roman law, advice
(esc -majesty, were lese-majesty, tuju^ vyitfif
consilio, et L. 1, sect. 1, d. L. Jtd, ^fjtjfst. vd
the seventh law cited doth ^ >
itself, making words to be pu;
son, * si tale sit delictum q
^ legis descendit,' as with us
where it is * ad exempluiri 1
the words being of grt
of extraordinary evil cxauj^m.
that law, light and unadvised
ing from petulance and « vu.
are tlie very wonls ^
riiy covered, by the ^ .
pity, or pardon; yet
* semper subest rnnu-n.
* venia'butia tl
is nonlace for i;
the aavicc, and Lht^
stance shew thai t)i
and advised words i lor
advised, than ^riously t<i
people whom he knew hi: vuu
STATE TRIALS, 36 C»ari.ei H. 1684.— Sr Hugh CampheH. [948
icpCAted exfki'^^iont, all letiJiofT to ilie
' ncl, * incuicattone et geminatione ver*
? anrf what could be more tnalirioiis
upbraid them for leaving a rebellion,
iie iiatpful n.ime of Runaways ; and not
Idvisvtbem to return to an op^n andm09t
|nis rcbcJliun, but to encoiira^ tbem
b, by [iromtsiug tbem help, or assistance,
toers, wbicb sbev? a rooted and maliciouf
kto bave that rebellion prosper ? Nor are
Kh such mysterious expressions, as that
untry fe(lo\r could not bin necessarily
Stand, beiQsr fitted desi^eiUy for their
ity, nor coutd they forget them as loose
littered words, being a sagfe, a desij^ned
I from a man, whose parts, piety and in-
they admired. And what man alive
ie such a brute as to forijet the most rc-
ble tliiojr tliey ever beard, upon the
Remarkable oceasion, and upon st point
En they wera «o tnuch concerned, and
I they could not but lay deeply to heart,
Eink oRen upon, because it concerned
dl tojrether ? And so they would remem-
fe another, and because ft was to be the
IlioQof the greatest resolution that ever
ntild be concerned in. As to the gene-
' objected against, of some such words,
jesty's advocate craves leave to say, that
nee was never iu more cxpUcite and spe-
thns libelled ; ^nd in whatever terms an
t be t^ven, it is sliU an advice to rebel,
' an and part of rebellion ; nor seeks be
titade in his libelling the words, further
|at be said, they should have oflficers, or
irsome expression of help : and it cannot
itedf but if one man should say, they
getbelp» or another that they should be
I yet all these are the same expressions,
e same advice, and the words are the
Id be believed, that they are not expressly
pie, beini| to the same purpose^ and as to
r opponeii his libel.
\ as to the second point, it is undeniable
Us is not an accidental meetings with re-
but it is an intercom muni ng with them
he rebellion, and upon encouragements
1^, and though they were not denounced,
I knew them more to be rebels, than be
bave kfiown them by their denunciation j
ty themselveiJ told him they had come
ftie rebellion, and they were only going
'ify seek clean <:lothes, which was an ac-
ledgment that they were yet in the re-
I, and a part thereof; and thl*< h fnr
IK than ilonkbiid*» ctsf, a^
^ who have bej'U *x»ndemneil f<»;
I ' ^, ■ ■ I ,
it beinip ttndcniable, that if I he kinf*'« wttncssei
^rf>ve thai C;e*oock*s was in sudi a phice at
«neh a time, ^poke such words to such men ;
but if Cesnoc!k's witnesses prove that Cesnocic
was not thtiT, certainly cither of the two wit^-j
nesses mun be gniliy of perjury, the fact Uv^
bag ct<}trly libelled* to have been evprcssly I
done, and therefore our law has justly al»» j
iiorred, as well as rejected such defences ami
ace contrary to the lilw*!, and a<?, amonjTit many 1
other instances, was expressly w> decided in tli#1
case of Mr. William Sonjerwel, and in the caaej
of IVrLeod, and M'Niel of Bara, m which case J
aiibi of five miles disttance wits repdicd : andi
albeit a/i7>i may be sometimes admitteil, whei«|
it is consistent Tvith the libel, as where the J
deed is not very specifidy bbelled ; )et in thttf]
ctLse^ where tte fact is speciftely and clearly I
libelled to have been expressly doiio, and thai j
the witnesses knew the panntds, and tliat thereJ
IS no imp-Ofisibility in the tiling ; as for instanc€
if Cesnock should have proven himself to ban
been for six months both by sea, and after,
London or Paris, and sliould have proven tt
by witnesses, beyond all exception, the ju«
tice^ naight, ea casu, possibly prefer him to tb
probation uf his aliift, because of the incon
aistency and imposiibihty of the thing: yet HJ
were most absurd, and of very irreparable cob«]
sequence, to admit Cesnock to prove an uliAiM
of half a mile, and by his own friends, te-1
nanta and servants, for he might, in few ml
nuies, have gone to that town without obse
vation j and is it not much more equitable,
well as legal, to believe three witnesses, wh
must be eternally damned for no advantage^l
and living in a couniry to which it will be ini
possible to return, if "^the tiling be false, tha
the kird's own teoeots and servants, who, be
sides the ganorat kindness, are of one sect, tht
think there is no sin to bring olf their owa
frietkds, as is to be aeen in vory pal|>able in- ^
stances? And by the nature of our assizes of"
error, it is clear, that our law L*elieves, that
u>en are much more inc lined to a«soilc than to
condemn ; nor shall ever the king prove the
treason, or any cUnned man may be proved
criminal if this kind of »6*6t be sustained, and
ibr iliit ivin.;.^ no evidences arc received and
swoi the ktnQ- in Hngland.
A^ 1 of fndeiiinity, the act itself is
opptjned. 111? whole sco|hj will shew,
*h.tt thcr 1^ to ^iPTureby it, fanatic
!v the poor and
fore h»s rnnjesty
•rs Bod
But
And
JHS] STATE TRIALS, 3d Ca a rlks 11, l6%4.^Pr&cetdings 4igBim$i
ritor would bs?e befn guilty, thmig^h con-
trihuting far less. As al^o, aecctntiii^ to thii
his promise aucl cticouraij^emmit, liie pantiel diit
«end, or »t least cuanire at a ifreiii tuany of his I
-teaants acid servants ^oing to tlic rf^ellion,
and, as a sign of bis atf'etiiun, did .^uiTvr them
peaceably to live upon bis (frf»ufid, after their
return from ll>e tf b^^Hioii : nor is his niaji^ty's
atlvocate nesolvet! to debute tliis reset, as he
itiighif to be, per «#-, the crime of treason arid
' elhon, being" res4dved iierf only far to ujo it
( an big-h aeKi*!&^>tti«tn BnA «|tiHlitir.«ition ofhiv
liarirtgf coiitribnted toward the 9Uere«f$ aud en-
courag'eiTient of that reJielUon; for tboug-h a
ooMevuan or gettUeman, wb<' lived in a t'ouii-
try disrtant from bis tencints, oi heiojf amon^t
Ihem, meihlled a liltle with tbem, mii^hl pre-
tend some favourable constructioo for bis ig-
norance, oversin^bt, or connivance; yet Ces-
nock having" promised encouragement, and be-
in|jf bim^eltf and for many years, founded upon
the principles ofself- defence, whereupon Both-
wel bridge was built, and having gone alongst,
in the last age, in far more open and itaogerous
opposition to the king's authority than Both-
weUbridgvwas, and hating very many tenants
tmongst whom he conversed every day, being
a diligent and knowing man, it is impossible
for any man of common sense to understand
bow any man of his intelligence and !^nse
could not have been most watchful over them,
and not suspect, having so much interest in
these tenants and servants, whom even silly
and remote straoger^ knew to Iiavc l»een in the
rebellion, especially seeing so notorious sl man
ts Mr. Brown, who, though he was not his
servant, yet frequented his house, and where-
ever he lived, Ccsoock could not but hear that
he tvas in the rebellion, being the ken-speckled
man in it, and hit own porter, being lM>rn with-
in a mile of his house, in his own land, and
notoriously known by all bis own servants, to
have been in the rebcllioD, be having owned
uriiTersally* without reserve or secrecy* to tbt
whole servants, that he was in the rebel f ion i
and yet, after he had kept biro as long as he
0oulcf agree with the young lady, he sent biin
awiiy with a certificate and rctNtmniendation.
All wliicb being joined, does clear that that h^
was one of these ringleading contriving he-
ritors, who is excepted by the Act of Indem-
nity, especially seeing, writing and speaking is
Jiot at all relative to rebellion, but to misrtpre-
aenttog judicatories, 6cc. The citatifins ad-
duced by the ptnoers procurators are not an-
swerttl, because his majesty's advocate thinks
ihem only places common, aud ill applied.
The Lorils continue this criminal action and
cause, and all further trial therein till to-
iMormw, and ordain the pannel to be carried
iMck to prison, and the witnesses and assizers
to attend, ylk person under the paio of lour
kundred inerks.
After hearing of these, the Court adjouraeJ
tiU the morrow, when tlie FiUiid'6 Advocate i
made their Duplies.
tbc
rcsi^fotK^s Ljiwrcfts Ot^t^ES* Mmrtk tSt )€9lj
Mr- WalUr Pringk^ for the
the Defence founded upon the ' ^
when the pretended t-xpressitMi
to have been spoken, duplies^ ■ i
Dtftnce is mo«t relevant, aoil
dideil by the Replies ; for albt it tht- T>f^f< nt*'..
a negation of the Libel, yet it i ik^.
* taio,* but is * negativa, cocrtn . f. lea-
* pore, qure maxune cad it sub eeiistt Iffiii,
aud sii^'li negatives are perpetually
in all cnimud actions, * ad prokM^nduni
* c£!itiatn rei,' according to the unai
optuion of all lawyers who write upon the sulb*
jcct of crimes ; and the defence tliat C^nocfc
was at home in his ^ ]\ that lUjr,
that the persons mt- lie! maty
Ualstoun, is so ciiv ,^ <iim1 ctrtttM*i
scribed by time anil that it is
rally impossible be i . c met with.,
at Gslftoun-bridge that same day, ext
absurd of "hilocalio corporum* were
And whereas it is pretenifetl, that the
is never sustained, but where ttie dis _
the place is such, as that it was impossiMe
party could be present :
It is dupticd, tlu»t this pretence i^
levant ; for albeit the diMancc ot
but half a mile, or iinty dtstiuct n>«>m«
tame house, yet it is as realty aitbi^ as tf
distance were an hundrefi miles ; so iliat
ever be the distance^ if it be ck*arly proi
the pannel, by famous witness es^ that
all that day in his own house, it is a* m
im]K>ssibie he could have been at
bridge, as if he had been all that week at
Antftt cannot be c^introverted, hut if a ti
were comtnitted In the nex^t rocmi, and tlolt
person in another room of the snrar b^stit
should be accused fur it, the < i t/kJi
would be sustained, if he coul^i . «it<
nesses, that he went not out ur
all that day when the murder %\ i- * >riutjil
the witness^ being present ^lUt hmi
lime ; and as this defence is unnu<
relevant^ so it cannot itt pretiuitjeJ
most true, it being well known that C<
a most circuniti^ct person, and h>i
stantly, upon alt occasions, d
horrenoc of all rebellious coi
always, at the bar, declur n i ' t
Gotl, utKjQ bis solemn ^ iiv n'^
spoke these words, nor an v u c.L»f>tuiil« vtoeif
to that purpose, directly or indirectly, to lb*
nor any other persons ; and if he were of tac^
wicke<{ princiiiles, It is not rational to imira,
that he would disown them upon so sowDii
and sacr«^ an tmtb, but that he wouM filhcr
satisfy himself with a bare denUl i eepiidilll
when he knows Im oath cannot ahtolfe hok
and consequently tliere was nev^r ETBltlf
reason, hi any case, for sustauilng the M^m
of alibis than in this case, and bis mmjmkfi
advocate ought to condescend u|ioo th« pMIP
day that the alledged wotrda were apokes, d
kwyeri being poiitif e, and parUcuwH/ Ctffi'
huil
15] STATE TRIALS, 36 Charles H. ]6S4.^Sir Hugh CampML [9-i6
'ar. 3, Qiuut. 103, Num. e^i, Uiat wlitn the
efeQce ot'd/i&i is proponed, the ez^ircM day,
•hen the crime vras coaimitted, must be rx-
rest ; and be asserts this as the coDimoD opi-
ioo, * a^ua uequaquam est recedeudum,' aud
ites many of tlMs famous lawiers, as Bavfcius,
^AfiM, Jason and Mascardus.
A«to the Replies atifainst the Defence found-
id upon the act of indemnity, it is* duplied,
W the defence is iinanswerablv clear: for
L un, it cann<it lie controverted, out that the
Ittended expressions, mentioned in the libel,
irr comprehended in clear and express terms
jnder the ^ereral clause f)f the act of indem-
S, whereby in express wonls.all persons are
mnitied, who havcspokcn, written, pr'mted,
poUislied aud disperseil any traiteroiissvecches,
w bare advise<l any thing contrary to the laws,
vbich clause is so ciear and comprehenhive,
that it is impossible to suppose any case where
iraasQD had been couimittctl, either by tnuisient
jfeecbes. or even hy a tract of discourse, or by
MMonable council or advice, but the same will
Ul under the said {{enei-al cluu^e, and be thcre-
lj indcinuifieil.
2do. The exception, in the said act of in-
iesnity, uf all such heritors or ministers who
me been in the late rebellion, or were con-
irirm thereof, aud such heritors as have con-
triboted thereto any levies uf men or money,
on Mver be stretched to deprive Cesnock of
Ibe (eaafit of the indemnity ; because, albeit
tfae eipiessions libelled were true, ar they are
Ml, it IS impossible that they can ever infer the
irtcral cases whereupon the exception is
banded ; for it is neither libelled, nor can it
lepratendeH, that Cesnock, was actually in
In late rebellion, nor vet that he contritnitcd
hficCo by tlie levies or men or money, but on
he contrary he concurred, to the utmost of his
!r, to suppress the same, and did always
le bia aohorreucc tht:reof, ond kept liis
I and arms fnmi being taken by tlie re-
Ml. And aa to the other case of tlio cxcep-
fn, whevebv contrivers are excepted, it is not
with any propriety of words, to infer
I the expressions in iho )il)el, ihul (\'SLock
maeootnver of the rebellion, because the
few and proper sense aud meuninvr oCciiiari-
m, ia only where a person halh i-nn;>:iiu il ;:iid
SHnbined with the riut^l^aders to viiise the rc-
riEoD, and hath laid dow n melljods for tint
Act, which cannot in the Icahi !)C !ii!( rn tl
hn the words of the libel, K(>t'in<; th" rcbirl-
hm was contrived, formed, and had pK.ctf del
ia great hei<^lit, before the pvvti r.lt (i v\;^\\ s-
iw were emitted ; and thcrii'c ;t, ly a 1".tc :-
iiy Mid clear conse«iueiicc, can never lio i:.i-
'~ ' m1 to have l>een contrived by iIilm- \:vi -
subsequent expressions, whi h ((.in*!
rbe the cause oroccaiiinn of that iv>iif:Jt
jpifimnnriy talcen c^ect, and had lH.'c.n so
Irwunlted and contrived, as to brt ak cr.t tf'
before llie j»rcttnded oxpres-
if understood by contrivers, is
' ia tkf gubsequeut words of
imthe
JX^^
the exception, viz. 8uch heritiirs are only to
l)e understood who have contributed by levioa
of men or m^nc^y ; ^vhieh words are not insert
alternative, but copu!atire, and us an explana-
tion of the word contriver.
4to. If reasonable exprc»iions relatinf;^. to
the late rebellion be so interpret, as to inter a
contrivance thereof, then the benefiiofthe in-
demnity, as to all heritors and ministers, will
be frustrated in every case, just as if the excep-
tion had been alisolute and simple without any
qualiticatious : for it is certain, that in all house
and field-conventicles, the ministers did not
only preach in downrijt^htttTms, and maintain-
ed and defended the horrid princiulcs of rebel-
lion against his sacred majesty aud his govern-
ment, but also, in direct terms, encouraged aud
incited tlie people to rise iu open arms, and tlie
rebellion did innuediately follow : and yet tba
lonis of justiciary have never denied the be-
nelit uf the indemnity to any siich uiinibtcrB or
heritors present at such conventicles ; so that
it appears evidently that treasonidile preachings
and discourses, alBeit previous to the rcbeliioo,
never have been interpn;t to infer the contri-
vance mentioned in the excepticMis, and far less
can the same be interntl from treasonable ex-
pression}*, emitted after the contriving and ac-
tual raisii&rr of the rebellion. And if such ex-
pressions sbould he stretched to infer a con-
trivance, it is impossible to suppose a case
where an heritor or minister is guilty of trai-
terous speeches relating to the late rebellioQ,
but he may still be brought under the compaai
of that exception, and be debarred from the
l>enefit of the indemnity, because it may be al-
ways pretended, that such cxpi-eiaions and
treasonable S|)eeche8, if previous to the rebel-
lion, did encourage thejpeople to rise in anaa,
and if subsequent to the rebellion, that tbej
encouraged the people to continue, and intf r
a ratihabition ; so that, by the^e pretencea, the
exception is as large as the rule, and the indem-
nity will prove a snare to all heritors and mi-
nisters who had just reason, by the general
clause of the indemnity, and the express words ,
to look upon themselves as thereby sefiured from
the guilt of all trea.souabIe speechcsf spoken^
written, printed, published, or *, and of
all counsel and advice cxtntrary to the lawsp
uidessaclear contrivance of the rebellion bj
contriving with the ringleaders in raising there-
of, and contributing: thereto by levies of men
; or money, were made out against them, which
' is noty nur cannot he pretended against the
' pannel.
.V> !>*. the common laws of all nations, all in*
(iv !;raii;- :; aud acts of oblivion must Ik* tiivour-
'ik', and largely interpret and extended, and
111 I u*( < !y lii.iited in pritjudicc of the persona
V. ho claim the bi'netit tl\iieof,so, by the indcm-
r/ity itst* II', all his r.n<T« '! niai«'si\ \s jutlgcs are
( '.[Hvs^ly ei.niniuiMh*il to inlerjiret the *>am8
/./ill air possible l:/utiKio and fuyour, as they
will be answerai)]o U])(::i tliiir r;it;he^ peril ;
TVU3I.
3P
* This blank is in the Record.
I
STATE TRIALS, 36CuarlesIL t6$U^Frocefdhg$ agahut
»
hi
mnii ifucli daaseis are tisitaJ iu nil his maj^t^/'s
mdemiiilies and acU ufoblivtaiuos ma^ api)tar
by tht ifniemniti^ after tiis majcfciy** lesuara-
^oa; whereby tt is expressly oHained^ that
^Irery clause an<i \vm\\ thereof'be understood in
tile most fuvoumhle senile i he expression can
bear; mid consequently ihe panne! may justly
expect, thai the lords of jusliciary w8l alloiv
hina the lienelit of his majesty's gracious par-
don, will Dot Buffer tlit? genera) word in the
exception of contrivers, to be inferred from the
pretended expressions mentinncd in the libel ^
upon nice and empty debates and sli-c-tclies,
contrary to the trtie meaning, jniiM>rt and de-
sign of the »aid indemnity.
6to. Whereas ii is pretended, that the excep-
tion does comprehend all heritors who have
bren actually in the re)jellion, so it roay com-
preheisd alf^mch heritors who are not art and
pait of the rebeirion^ or are acc(*ssory thereto.
It is answered, that the alJedgance ouj^iit to
be rejielled, because the exception can only l>e
undLrstOfxl according to the express terras and
qual ideations thereof, viz. That such heritors
are only di barrtd who have been in the late
reMIiotj, or were conti-ivers thereof, by con-
tfibuiing thereto, of levying of men or money,
and art and part, or any acccs*iion to the re-
bellion, othenvLse than according* to these ex-
press qualifications, can never be miderstoi»d to
lave been intended or mcanrd by the excep-
lion ; for then the exception had run in the^e
express terms, viz, that all heritora or miuifsters
sbotild be excepte4l who were in the late rebel -
Jton» or art and part thereof, wr accessory there-
to ; and the exception not hving so conceivctl »
It ou|j^ht not to be extended beyond the precise
quahtt cations of accession therein exprest, es-
pecially seeing his sacred majesty cotnmands
All his judges to expone this iudcmniiy with all
possible latitude and favotir, us they will be
answerable upon their highest peril: and to
Btretch and extend the exception to all the va-
riou« cases of accession, or art and part, would
be 8o fmr from interpreting the same with lati-
lade and favour, that, upon the contrary, the
ioterpretation would be rather rig-omuii and
without any favour, and the e\ce(>tioQ would be
M lar^e hh the rale, so that the indemnity
ihould import nothing' as to heritorii in the ease
of trea^touable sjieeches, albeit all persons,
without any distinction, are fndtnim^e^t r!>r
apeakinif, writinff, printing, publishing', or dis-
persing any traitcnnm sjieeclies, and even for
^*ing^ counsel and a<h ice in any thing contrary
to the laws, which were to frusiti'ate one of the
greatest ends of the mdemnitj'.
As to tilt addilioiial libel, it is further nlledg**
ed. That tiie same cannot be sutttaiiied, either
•imple or as an aggravatioHi because there is
neither year, month, nor day condescended
unon, in which the crimes libelled are alledg-
ea to have been cooimitted, and the year,
ftnd iQontb, and day are essential in all criminal
libels.
Sir John Lmtdcr for the pannel replies fur-
Qlfrj Thit the dd^nc^ statid releraut, not-
I withitanding of bis majesty's &dvbc«l«^ to*
&wt*r* And quoad the iin»t, that the wnd^
all edged uttered by the pannel^ are n«K nik#4
treasonable e.vpressioDM, but are art and paituf
treason, and must be presumed to havet>ef9
malicious and advised epeecbc**. For tm6«
This were to confound tlie hmitsof two dtsiiBct
s|#etne* uf the crime of PerdueUion, w ott!« Ui?.
ing for their form and essence %jr»a
rrniiswufm , w hi ch a re 1 iabte to n ; ■ w/dil*
ly by persons of no breedin|i^ or • I lOdS
give no reminiscence after fire
less they had taken notice of it inMAutl
redacted it unt<» writiber ; and !«u y^^rs \
very great difference betweeti
their own nature tend to the t
crime, and such a>:
* sionem latitmupnc!
A..*.... ^l-itth. upon '
a vcrj^ i!
i...,...-.,:S0f n-K , .,..
of I he army ; 1? r pay was uotj
tuallypaid* he Ii fn?.* tli^^
expression, •Itisawondc
* tmy not ;* which btnn^ h
the coinpante*j, a sedition itnuM
the camp ; and yet the luwyer
he iii not * perduellionis reus,
* C4iusain quaiu occahionem ^
' judicandu?! est/
As to that part of bis majesty *s adu
answer on the 1 26 Act, 12 par!. \ing ,"
that he needs not in this case 8ay» that tb« pw^
tie«i vtith whom Cesnock is alledg^cd to luff
had the conferetn*e, wevr denouoc«^ rrbtb if
the head burgh of the shire where they iW,
because he had a mor»* cerlaio ^jutid of kiiWP*
ledge out of their own muuth^ thau any ftnh
denuQciation ctiuM have given hiin.
It 14 diiplied, 'J*hat tlieir saying tbey caai
from Tolci o^-park, could not put biot in mk
fidt to look upon them as rebels^ because ikfjf
might have be<^n there by restfuint, or ¥^n
excii&ubte occasion, or might haTe coiQt vrn^
in obedience to his majesty's prodatpatifA,
commanding sU these rebels to lay demo llk«
arms.
2do. Where the law has 0xed upon a soifv*
niiy, such a^ denunciation at tK V \ cioa^
iind private kno>* ledge does not > wv&
thereof, as we see in the case ci luumainwi,
of assignations, and many oihers, seeilig * id
* tantum scimus quod dejure «;'-;">-'c •
As to the third alleilg^nce u i
deteuce of «/i64, That it is 1 1 si:
and that the defence con<^
inconsiderable, that it docs rH
It is answered, Tlial in msiny ca-
contrary to the libel, are borli n
sustained. As for instance, w 1
sued super homicidiopr^mcditci^
his defence upon tne late aci ot
1^1, aneut casual homicide and
self-defence, yet by that all the laws' ^
christian world is allowed to be received.
Sdo. There is a propositio artcma vtriim
That Cesaock was ui bis owb liouve all "'
\
sdi
STATE TRIALS, 36 Ckables IL l6BA.^Sir Hugh CampML [950
I Criwfocfl ami Intrrfaam passed by
dfvof G4ilstttUii, nr ' T^ ', n - II nre
'y rooted in i ric
on Gnn p>er5i»;.<^ .4^ ^-; a,^ t^Liiiovy :
ilemoosinilion is c^Tiiinncd by uo
»l ngfl^ he was
^ al no great
, ♦ majus €t tniDiis
IS as iiifnHiMy Irue,
ftoek, if lie Wiii» mU tliai (Uiy in his ovvu
not at GulsiouD no more than he
lic^raildiMl and arf^ed in behiili'of
il '■'' ' «t in the act of intlein-
i( die iiiviolahle laws of at)
1 ^Ticratt and imio-
ugenda/ without a
-.s»i,^ ,^i ,jitt.$Ut»ning such se-
jfvves a fatal blow ; a^ if Caligula had
* h, of whom Suctoniufi in ejus vita,
t iitj wished tlie whole people of
but one head and one necJi, that with
kc lie might strike it off: and many
' of his ruujpsty^s loyal deserving" sub-
i io Bouihern and western shires,
Id that case, if this act shall not be
id'end ; and it were a strange analogy
, timt the ret>eU4ous and seditious lie Id
-)ies shall be com*
lid a lew transient
N ailedged atjfainst
^ mnified. As for
• iiiiit from the 29 of
'*fc| of Gods knows, and
; .,.] if we lie in rHK-llion this
I not sa^e us. These tivi^hruuds
people, that every hair of their
a man, the (p-o^s of the field
fnf theni» and that they behoved
irtli tuid help the I/jnl again&t their
«>p|trcsiti>n( ; and yet these, which can
prtjhation, are certainly pardoritU.
!• it m jifeieiHk'd» tha; C*esuock falls
^ ^ of the exeefjtion, as a con-
Li r of levying men or money.
' I 'Is, except ihey te
(i sense, * eipro-
iMunc i'tandum est, nisi
senstifi y and ihc'it; lit
. ,, .., where the indemnify^
onJaintd in In; txpUiued with all
iuiiirnrio ?L)fi>it^ the excep'
n tills iudeniniL^, ought
i:nl prednetii^njAcation,
uu or AtiiphlicAUon ; and it is,
t t^jtHuhut^ eriticlvs, that con-
! urcessioo, which
I being- ackiiow-
'iMu WHS form-
rt^ncounteft
< wjiritii iIjc terms of
, and craves his ma*
vTMivi^arjie for maitiieuance
I next Docuiofuit aj^pcan to ba
Sir GEORaE Lockuart's Tbiplies to Cesfiock*«'|
Advocates*
Kr Gtorge Lockhart for the pursuer, doetj
insist upon that point of the Hbcl, that the pau*]
nel did inlerconimune and converse with thai
persons condeiiceaded upon and libelled, who I
[md been^ and &tj]l were to lie considered as in |
the state of rebeUion. And as to the objection^ |
that they were not denounced at the iimvket- ,
cr«iss oi dt«f head burgh of the shii-e of tha I
fiame, is most irrelevant, b«cause, albeit alter m]
rebellion is soiiite and extinguished, and thai |
persons v»ha nad been engaged in the itame^
did puhlicly converse, and go up and down, the I
Hci of pcirliament mentipned ni thedefeiice, may I
take place by denunciation at the market- crosi^ {
to proceed to put persons in main Ji fie ; yet it il
nhsurd and contrary to all law and reason, thai 1
the said act of paiiiament requires any sucll j
solemnity, as to persons engaged in an actual
state of rebellion, il being strange to suppose or {
imagine, that bis majesty's subjects might {
converse with rebelLs actuiijly engaged in armsa w
or that it were a possible cmie to use the solem*
nities of denunciations ai a market *cross againal j
a concourse and combinatioa of execnibfe re*
bells, before they were dissipated, or the rebeU |
lion extinguished, I
2do. liie pursuer does also insist upon th#j
libel, as founded upon the words and expre9*|
sions condescended upon, as being treasonablal
in the highest de&cree, and a downright aocea* j
sioti to the rebellion, it Ix'ing certain by th«
contmon principles of all law, that * mandLLiic
^ vel consulens delictum, tcnetur ad pceuam or«
* dinariam delicti,' as being the spring, rise, an4
source of the samt; ; and the words lil)ellod, do
dtteitly import a counsel and advice to iba
pcriionti condescended upon, to rttum to tha |
rebels, and the reasons and motives conde*
^cended u{)Ou, that they would not want help
or officers, were caually treason. And as to
tlie objection niadt?, that ii was nudum conMum^
and there was no instruction, ami albeit tho
words should import the crime of treason, yet
not an acceiisiou to the rebellion.
It is answi>retl. The words, and expressions
libelled, are a clear, evident and plaiu advice^
that are not capable of any benign sense or iu«
terpretation : And the pursuers tfo not under*
stand what is meant by in i>t ruction ; for thert
was no necessity to condc&ci^nd upon the par*
tirrabr way and method, how they were to re-
turn and serve in the rebellion : But the words
contain more than the law requires: for tiiey
not only contain a counsel and advice, but con*
descend ujKin motives and reasons, which arO
the highest and moikt i*ational instructions tor
enforcing of counsel, ntit only from ihe autbo*
rity and intluence of tlie person goer^ in e^preaa*
ifig his dislike with their couiiifg from the re-
beis, but hImj contajning a motive and reason of
thturencourt"'^ ■-"• ' that they would not waul
help, or be ah otlicerB,
And as lu , - , ^ ^oce that Uie words aro
ireakonable, yci Ihey import no acc«i«ioo t4
f)5IJ &TAT£ TRIALS, 36 Chari.bs 1L l6S4.^Pr0ceeiing$ ogMhmt [9SB
the rebellion. It is answerpd, Tli»t all coun-
sels and advicfs import and ussuiik; ibc nature
of that crime to whiiii the couitsel and advice
is given. As lor C'\anii*)e, a counsel and advice
to conmiit murder, is an accf^ssioii to iiiiinler,
ond justsio in tlicerimr '«» tt:i.»ft, and all other
crimeH, and a counsel ami advice to joyn with,
or retDrii to rebels, is directly an accession to
the rebellion, the action itself, and the counsel
to which it relates, being* in all cases one and
the same crime.
And as to that objection ai^ainst the relevancy
of Uie libel, that the uords condescended upon
bear that expression, or such like, and that
' non licet vagari in criiniuHlibus.'
It is answered : The objection is frivolous,
And the libel U-ing- s;»eoial as to the words, there
b no generality or uncci tainty as to that chiusc,
or such like, bicause it cannot admit of any
Tariatxon which is material, or can alter the
flense or import of the words libelled ; and
whatever defences can be coinfietent to the
pnunel for taking; off the wonis libelled, will no
less militate against any words or expressions
which arc ei]uivalent ; and it is a rare conceit
to imagine, that if the witnesses to be adduced
to pfove the libel j should vary in expressions
-not material, that thei-efore the libel were not
relevant, or mcto not proven.
Asto that allmlgancc, that the pannel was
al'-biy and was in his own house at Cesnock at
tlie lime, when the witnesses can be able to
pn'VP the words libelled, and that the pui'suer
outfht til condescend upon the day, to the effect
the defence of a/ihi may be competent.
It is answcri'd, 1. That this objection is con-
trary to !aw, and there cannot he a more dun -
gcrous \>rcpaiiitive to liis majesty's interest,
and wlteiuupoa the greatest of criminals and
nialclHctors nii^ht escape: For 1. both the
conmion law, and the laws of this kingdotn,
and the in^iu'nble practick of the court m cii-
minal libels, there needs no more condescend-
ence than the year and month, and as to winVh
the law is clear and iK>silive, in that title -.vncre
the same is cv prof h}>o imdcr eousideraiion., vi::.
* Digest do accii/. el inscri|)t. I-ieg ;J.' wh-jre
the wonis arc, ' libeilonim iuscripuoiils enn-
' ceptio talis est. Lucius iiitmrsirs est
* se mcmiuiss", Leg. Jul. de AthOt, reaii: de-
* fern ipuHl dn at eaTU cum (Javio St»viy in »m-
« viip.te ilia, iNiino illins, rsense illo, roiisuiihits
« illis, \:c 'an ' ayain, * ne.iJ'.e untcni dienj nwjue
* liorani iip. iUis onipneheiidit.'
2. Jt is tlu u'lifiion o)Hi;i»n of ull lawiers,
paiticn': H\ (\n,'s, in that Title * qiiuiiter
« foil* etuf aceu^r.tifi,* where he states tiie(pies-
tion, ami dues p:silivcly i"esolve in these words,
* Si v.'r«> liJCiiiui a^it tk-lictuni our.i :cini»i*re est
« jiunii lie' * dies et hora comir.is.si ci i-
« minis i;i»n deiiet pnni nee inscii in libellu, ncc
« proUire, irii:> per lioc niniiscoaretaretnr ae-
* cusaior, < I . lioeit i in grave dnmnuin n ipuh-
« licij*.' .And a;,'aiii he says in the same place
m e\i ress wonIs, * imo qued accusator, etiam
* aionitus ct rcquiss'iuw ah advcraario, non tene-
* tur iMHiiTC diem, nee horum eonimisii crimi-
* nis, nee judex pomit eum ad hoe oompdleit ;*
and of the same opinion is Julius Cteroi,
Quoest. IS, Num. 13, Farin and others.
! 3. How is it possible it can be otherwise?
' for supiKNse that the witnesses to be sddaced bf
i the pursuer shall prt>ve positively the eriae,
> anu the pemon who commits the same, and the
circumstances in which it was coRimittcd, eu
there be no contrary probation allowed, cither
directly, or by inference, to take off the force
of that probation ? which were just to alloir
witnesses to depone ' contra dictum testioD:'
But as the point is clear in the general, so tfaone
is no necessity to enbirgc niion thb debate, as
to this special case, in reenrd the aiibi eonde-
sccuded ujion, viz. tliat toe pannel was at fait
hotise in the town of Galstouo, about half a
mile distant from the place condescended apos
and libelled, by no taw was ever admitial,
either * in judicio civili aiit crimjnali;' and the
reason is clear and undeniable, in res^iect it ■
possible in such a circumstantiate a/i^', thA
the pannel might have been guilty of the wurdi
libelled, and might have hud opportunity* of
meeting with the witnesses, specially theic
being lio qualifications condescendeil upoa to
enforce the alibi, as that he was * detensos in
* carcere,' or ajfijms Iccto, but does ackawplfd^ge
to be in periect health, going up and down
doing his affairs, aitd so is a case toio oeb dif-
ferent from an alibi so circumstantiate »d
quahfied by reason of the distanoe, that thnt
was impotiibiiites nalura. And as to that al-
ledgauce, that the |ranncl has the benefit of hii
majesty's indemnity, which extends to all trau
sonsble speeches, and to be iiiierpret, in the
greatest latitude, and most benignly and fk-
vourably.
; It is answeretl, 1. That the act of indemnity
I is Ojiponcd ; for first, it is clear by the act it-
; self. It is not a' simple indemnity, but contains
the exeepiions tin rein mentione<l, and therdore
niiist ]je congruously interpret, that it may sot
I only import an indemnity, as to such for whoo
! it \ias intended, but also that biich as were eX-
I ceptod and excluded, should not enjoy the be-
I nciit of the said indemnity.
Q. It is acknowledged, that treasonaUe
I speeches having no relation to the rebellioD, io
; tall under the indenmity, and are secortd
I thrreliy ; and there are many instances of trea-
I sniiu!»le speeches, which need not be con^
, scendjfl upon.
{ The exceptiuns in the act of indemnity tit
• piitin a!i<l clear, that heritors who were'cos-
I triveis of the rcl)cllion, and contrihuters theie-
! to« bv levies of men or money, should notes-
i j«iy iln^ same. The plain meaning, and Eng-
I lish whereof, dnts coniprehend all aceesion to
i the rebellion, and the words litielleil do import
' a direct accession to the rr licllion.
And as ti» the objection, that none can ta
reputeil a eontiivcr of the rehelliou, bat tdeb
who advised the first rising ami eruption of ibi
rebels.
It is answeml : The pretence is most int-
Icvant; tor a rebelliuu being ciptally to bexM-
STATC TRIALS, SC C«AUms
m vy>hitiot] ^ ib« fiint «?rii[itioji^ tmd to
i l*# , Ttttioiial Hit-
«ikei1
Ill imiuj til iJii_- liiLrtilAIH^
of the reUllion In ariother
fiikM. iik.» r-.i.ne us to the
1 Irons B re not
1 tormiMi and
ry act enil
I ori in of ibe
e, ami nstren^b-
' rcb«iliioiif Qnd so
f*\ irom lUt; fttit of intleTODity ;
, dnd t'> contrive a ret)c)lion in the
hsi Ihf* SAmc *-'onirivance as to con-
rlhon m Cfalluway, where it fiist
rjwr fki««*. ftJisn fall uoder (tmt elaiine by
' . f n , .... r.f mfti
, T.^ .._ iui-,v^* us ♦nithu*
ti8 rnn to the rebellion ;
htlti.v* ro any, citlier
II' Diefuinie, wa9i
V - of men to
aniJ i» It were othirwiae, the
i*t)ntitine«} in the a<?| of indernrnt)'
m imjKirt or signiticnoct* j and alt thot
nded by tliL* intknimty in relation to
TJi#»i»» i»»s but to sernre the deluded
, iifho wei'e ♦^asiK' ini^Mise^l upon, and
' rwise to
the h^-
, an 1 [T any such
- »HiUJ evacunte the
1)^
|1}0n ;
t hereto,
ar, nor vrcte nnt ociiialiy engaged
in*
T« which, fm tbefiart of the Fannel, the ftd-
Aq^fiicniti ffcro set forth hy way of
Itgaut :
*« Xi4WYEIlS QUAORUPURS.
}*mirkkHtnne (\imAT\ip\icu to thai, that
Mr^-P^-' - '^- ;'— ■ r'-- not
the
ot ttt^l^Oll^
his UE'f
him,
would
afisuril :
* nales 8aiieli«cieia in iia taDtiitnnaodo cmbm
' frcifiitiid* tmi, (ftjortim t^prcMa 6t meoiM
* lA Ifd^httftf neqiie eDiin (ice na graiior alicia ^
lu casibui jiU'e cxprvsaii/
G. ' UucM in iioiiiia, vol *
' ftiuuiiih jiuuaiiLKi^ extra jiroprietstctn tcrfco*
* mtn fien nofi dtihet, ad Leg. 4^ , Dig. d#
* pCPnK •••'••-»'rf>t96oiie ieguni, pc&ne utidlieads
< «iini HI as[»PTattd«e.*
S. 11., u..,i^i;^»Ai(nie cansiat •mport ooum
ami advice, tio as to In^r the eoiue of tr«««i
seeing crlni<« cannot be inleired from rvtnoiA
cunstrs &t)il inferences, to make the jvarty liable
* Hd pceTiam ordinariann* A« for in>tUii*C€, if a
man having been ii^htii>|^ with bis ii«>i^hhour|
thc}-^ should be separated, and as tbey wer*
comings out of the v^ay, should meet with aao*
ther, and he should vL^k bim l^om whence h%
came, and he should aoRwev bim, he <7ftmi'
trniti 5uch a pi nee where he waa licfhtiikg with
' tmi he came away and left
, ghouhl^ay, hchkeil not
,. itim take county, aiwi if h^
he woulil ^K help; it were
. .V ,nl the person iliai miHt iiim Uy
and had these •
siioiild i>e i*niUy of the maj- v, p i : :i
ndghhour ; nm\ the hkv may be inslanc«d ttk*
many CHse« uf ihe like uitturc.
It tK \he oi>inioii ot all Inwiers, that when it
is proriiled by a st;itiae, ttiat the person wIk>
gfifes counsel and adrice ahoitht t»e liable to the
same nunishmeut, is only understood of counsel i
and advice before the commiiting of the cnniej
iiut not tbereatWr. Karro). m Lt'^. furtuoi,
Dig-, de fiirtin, par. ^. MarceL Con. HO. Num,
31 and S?. * Htatutum dicens «|ai>il pmsfans
* uutiliuni, coiisiihum vel favoicni nmlehco,
* tali (>(Kna puniatur, debet intelligi ^nando ma^
* leficium e^t in fieri , ik'cus auieui m loaU licid
\jafn facto pcrrecte et consuniinatOf et sic ante
' non poat delictum, quia de illo statuto loqiii-
* tur.* And Minochtu» Cas, 551. Num. 6.
* requiritiir quod consilium pnecedat ddictnm,
* nam n secuto ftelicto durct coDsiliunr, itlud
* eerte is froBiratorum, oec emm suaaus dtjiin-
' quens eo coufiiJiii ad delictum perpetraodum
* processit,*
Whereas it is pretended, thj*i tl ' Tneol,
in so far as it b hbelM that \h* i>ok«
n ts, or some such wonis u* mat pur-
[ ! rrant in tfaese general terms, aefriirg^
tilt- |<u)nufr«conde«ceiid toat tho det'cnders bud
tlie like wurds to enoounige the party.
It is answered, That llie flefeitder spoke
Ihese words or auch like alternative, h not tu*
levant, it bein^^ a certain priucipic in law, that
whenever a crime consisis in words^ thi- ^pe-
ri fn wopjii ought to be cotideacended upon, litr
hbeHiogf of a crime arisiirc" from a pur-
ti^ fact, a^ tbfi fact and deed tnu&t he cttn >
idi'MJeDded upon, and the tib^l wdl not he rele-
vant in thcue trrrn?, that the detenikr roni.
tAct and deed, or mmw imch disc*! lo
mc ; so by the wiine reason fvhen »
I crifuc IS libelled ariiinjf from words, the par-
tipdariii»ecttfi(>wot^s ou^ht to be condeicetideti
STATE TRIALS, So Chaelks IL l6%A.^Pr&ceedifigi agoimt [^
^
^
P
upon, seeing tlie varying of a syllable or a
letter, will also alter ine meaning: and sense of
the wordSf arsfl if h were oiherwiiie, then tlie
puritier rol^bt Irb^l no more but treasooable
H'ords m general, whicb were absurd.
Wbereiis it is alledc^ed, tbat tbe conrersing
with ibe )>ersons mentioned in ibe indictment,
4o4b inier iutereominuning Vfhh notour ntbeb,
•eeing the det'etider did know tbat tbe v bad
heen in tbe rebellion. It is aniwered, l^bai it
^ absolutely denied tbat tbe defender did know
tbat any of tbts«e perMias bad been in the i«-
belHon^ and private knowled^^e being * actus
* animi et iuielleclus/' wbich can only be
proven by writ^ or oatb of (larty, which can*
not be admitted in tbU case ; but if it were al-
lowed, be could very fn.^ely decbre. ajs he basf
alreatly done, tbat be lUd not know that tliei^e
persona were in the rebelhan. And seeing tbe
law has 6xed on tbnt iMilemn and specific act of
deaunciaiion at llie Murket-crota of the i^hiie
where tbe rebells dwelt, to be tbe only thing
tbat puts lieges in malajldcy to supply or in-
tercommune with these persons who had been
at tbe rebelhon, no other thing, how notour
•oerer, can put the lieges in mala ^de, but
only the denunciation at tbe Market-cross of
tbe shire, conform to the express act of parlia-
ment. And it is evident by his majesty's procJa-
mation in April l&i»t, that the resetting, supply-
ing and intercom muning with persons that have
been in the rebellion, does not infer the crime
of treason, unless they were denounced at ttie
horn, and forfeited for rebellion. And seeing
bis majesty *s adroc^ite has already declared,
that he makes oti\y use of tbat article of the
libel as a qualijication, tbe defender needs say
no more but oppone tbe act of parliament whico
aufficiently takes it oCF.
6. Whereas it is allcdt^etl tbat the defence of
&libi is contrar^r to tbe libel, and so cannot be
sustained. It is answered, tbat albeit it be
no nullity tn a criminal libel, if the libd bear
tbe crime to have been committed upon one or
other of tbe days oi' s^ich a month, in such a
year of God ; yet if the defender desire tbe
pursuer to cim descend u[)on a precise day, he
ought to condes*'fnd thereupon, tbat he niav
not be precluded of hia defence of u/iii, whicti
is not contrary to the libel, but elides the libel.
As for instance, if it had been libelled tbat the
defender had killed a man at Edinburgh, on
one or other of the days of June to79, and I he
pursuer condescending upon a particular day,
and the defender should prove, that all tbat
day be was at home at Ce«nock, this were
enough to elide tbe libel, which is dear both
from the civil and common law. Gap, tinaJ.
rag. bbellorum, quiciit. 8. and from all the
wiers who write upon that subject, And par-
ticularly Battol. in Leg. is qui reus. Num. 10.
Dig^ de Imp. judiciis, Us Juson in jpge ar-
bitraria, 3 parag. si quis Ephesi. num. 6. de
«>o qui certo loco. And Farin Qimest. t num.
30. And Gail. Lib. 1, Obfacr. tJA* whu is ex-
press, Uiat albeit it be no nullity of tbe libel,
albeit th« particidar day be not €ODdc!»cendcd
pai
■ albeit th
upon, yet if tbe ptHy desire be ought to eofi-
descenil, * nam omissio diet reo mut«rret i*-*^
' sionem, er^ro ex[tnmeitda, i|uiaprob*r«
^ eo die in tali loco non fuisse.' As alto
dear from tlie law of our neighbciur nation (
England ; as appears by 37 statute kiogK
B. by which it is statute, that tit all crii
tibel^, tbe day and place must be condcscfoM
upon I und from our uwa law, cap. ft., qooft,
aitac. By which it is provided, tliat the naoMi
of the partitas, day, year, and moiitii sbodd It
ejcpresl, and tlamage most be cotideaecodii
upon ; so that by ttie law it is 09 neetsmrj M
express tbe preci&e lane in tbe libel, If rafoutd
as to conJe^icend u^»on the party^a tauac^ tbi
cause of complaints, and tlie place where tbi
crime wan C4.>nmot1t<d. And as ibis 19 clw
in tlte general, much more ought the ponoo
to condescend in ihis particular t-nk»> •att^
if the pursuer cundi^eend on i\
fetider not otdy oifci^s to provv
but that be was all the dsy at bonn
house. * Unve est tlcfeusio certata 1^
* pore ;' uud so being a positive eAC«p4Mt|
ought to be sustained lo elide the hbel, esp^
cicJly seeing it is likeMise oOered to be ptom
by persons that were pre«srnt 111 companj widi
Ingrbam, Craw lord and T' mi tlie ban
they past through the G i lat the ilr*
fender was not with tbem ai tnut inne, amiil*
beit the deteridcr'alvoujic be not dt tliatdiUtaaci
from the Galstoun, that it vt as impossible tl
nature be could be there, yet he condoeeodi
so pregnantly, that it isef|ti«^iil'M't «o ;* T.l*v»rd
impossibility Uiat be con! u- ';
is posiii^^ely offered to be y' . -.'
borne at his own bouse all that d^v
pt?rsons that were present wlUi Li
pany all tbe whole day, and tbe p*
were present with Inu^bam, attd tli^
tiooefl in tbe first indictment, all the Uun^ Uu ;
pa.^t the GaJslouQ, and tlic defender wu diI
withthem, which issocircumM ^ o/m,
that It is t»eyond all question 1 • iit«k
the libel. And as to Gome; ai^ rMcn
cited, that seem to be of the c awn,
it is eviilent, tbat there they d< *' ^
case o{aiib$t ^'^^ ^^h' ^^ tbeUb(>l \«r
descending on the day be relevant, a^ .0 -
it is not controverted. But tliesc and all other
lawiers upon tfiat subject are clear of the oni*
nion, that when the deft-nder requires tit
pursuer to c^ondescend noon tlie predse dsy,
that it ought to be condescended upon, ihA
the defender be not precluded of his juatlfe*
fence of alibi.
7. Whereas it is alledged, that the ikfcft^
falls under tbe exception of the Act of IndMa*
nity, both as a contriver and coutributcr to tbs
rebellion.
It is answered, Imo. Tbat tbe ileffodif'
cannot be repute a contriver -
words and expre&siojis <
dictnicnt import a contri\:
is acknowledgeil by tht
at a transient meeting on 1;.l ..
ii not to be imttgiaed that any
State TRIALS, s^cuaulm
i9on would go iinil contrife
. any person* Ue nict on the
imnce must necefsanly be under-
'^DsultiDg' and advising things that
tJie rebellion, and which mig^ht
b»T«flo, and not by a trsirwicnt dis-
and that conlrifani-e should t»e so
■ ' fi, as to cou» prebend alt ex-
ked like treason ; the excep-
' "^Tal ns the rule» and unoD
rr part of the Act of In-
eiltpf evacuate.
an not infer a coo-
|r ; iiting by levying" of
tfch can uaiy be underetood* in the
[terror of awjeinbling men together to
< llion, which cannotTje in the
n thifl f«se ', nnd the defender
til my things ihai
n\ th^t he did
cnttoiis ^^t^v h ce of all
I coutKcs, and ga\ ' i stance of
* 1^79, abuut a momn ociore the re-
xo fur as tliere being one of his
i^ilien killed b^ some of the rebels,
^M^oimdcd upon the confines of tl^e
dy the RcHemen arid tretjtlcmen
"i and ^Totc a fetter to the lord
wa* drawn by tht ddentler,
I by hiro, and a great part of the
' tfje shire, by which they ac-
Iship with the murder of one
J the nighl, and the wounding
a& also o( scicne armed ficld-con-
iirf'a conifidorable number of the com-
ifined by nniKJundf turbulent and
l^reacljtiT, making it their work to
Dpie 10 Stlii^in and separation tVom
iirmnces, Ma^\ instill in the in tlie
^\i..^ .,^.1 out of thpirsensf «f their
fet le good of religion, the
lie kingfdom» did think it
Mhe lord chancellor, tlieir de-
Hioi n net' of* sufh horrid prac-
iiot to be
HIS, what
iUH and lo^al sub-
loyal letter, and a
the defender is of
iTa» so far from be-
Ot lliftn, or having an
fti he first appearance
1 I LTf^e timeous ad-
J-
r. n«r, that cffee-
^^1.
renting thereof
Bit 1
'n theeg^ ; so
' "! ni of these
WKc
iiid I* ho
a leUcr,
WjJBt of 111
that had
^^F'
' :is a fur-
^^f '
tijhorrence
Bob
Mi to be prorcn, that
fe^
id thai any of his
etitto Ciiii
n mediately he
llMdrfe^,
!irt them oiit of
irouXa oQi rtttiti ftoy who
ri. 1684.— Sir Hugh CamfbtU. [95S
haunted conventicles ; and when he got notice
of any of his people that abatained from pub-
Uc oriiinanctti, he did always acquaint the nhc-
riff- depute of the shire, and caused tine and
puniah them according to law, and did never
suffer any of the relida to come to his house,
VkOT got they any of his horses, serTanti or
arms to assist. But immediately when he
heard of any of the rebels being near hii
house, be letl his house and came to Edin-
burgh to join with his majesty*s forces, w hich
was all a prudent and loyal man could do at
that time. A% also it is positively offered to
be proveti, that he dissuaded all his tenants to
join in the rebellion, and m formed them to
take the bond; and therefore he ought to hare
the benefit of his majesty's gracious act of
indemnity. And if such as have been at field-
convenricles, or illegal administratora of thi
sacraments, and had mainiained poaiiions, that
it was lawiul to rise in arms tor retbrma
tion of religion, condemned by the second ad
of the second session of bis majesty's first
parliament, and the [preachers at nil these
conventicles, if si?ch as these should have th#
l^ensfit of his majesty *d indemnity, as certain-
ly they have, much 'more the defender, who
has given such signal testimonies of his loy-
alty. Seeing it is clear, that his majesty's
design is, that the said act of indemnity should
be extended in the utmost latitude, which is
agreeable to the common law, L. 3. Dig. de
constitutione. ' Principio lieneficium imperato*
* ris, quod a dirina scii;. ejus tndulgentia profi-
* eisdtur,quam pleoissime interpretari del»emu«/
And if the exception of the act of md enmity
should be otherwise understood, there were
hardly a pintleman in the West of Scotland,
but he might be bi-ought under the acts of
pailiamtnt a^dinst treason ; and the act of
indemnity which his nmjesty designed for re-
moving of all fears and jealousies, and the
quieting the miuds of hi»t gooij subjects, should
be rendered altogether elusory and ineflectuah
Mr. IVititattt Fietcher for thepannel further
adds, and conjoins, that the i>efitnce& stand
most relevout, notwithstaiuling of the Replies;
For^ 1. Whereas it was pretended, that the
conversing and interconmiunintf with Daniel
Crawford and the other rebels, was ftagrant re*
bellion, and before any course could be taken t%
dcdarcor deoounoe them.
It is answered, 1. That the pretended con-
verse, being only a casual rencouoter on the
high -way, it could not subject the pannel to
any crime, but especially the highest crime
of treason j and there is no man in tlie world
so innocent and loyal, who not ha%'e fallen in
the same accident, considering ihe number of
the rebels that were swarminji in the counUy.
4. Any such converse and iotcrtommuning
bring antecedent to the act of indemnity, the
pannel is thereby secured, in res]>ect that con-
vert; amd intercommuning is none of the cases
excepted in this indcnmity, and * ex«eplie &r*
' mit ragnlan in nooexceptis/
i
I
I
I
I
i
959} STATE TRIALS, $6 Charles
S. Wberets it is replied, 'iliat the pretended
words 4o import a coudscI ruin instruciione,
in regard tbey contain motives and reasons for
returning to tne rebellion, ?iz. that they should
not want officers and help. It is answered,
That law in this case of counsel, rcquireti more
than reasons uid arguments to parauade, viz.
directions how to compass the crime, as in
criminefurtij and what place and house may be
most easily broke, and what instruments are
most fit, which species of instructions are ex-
pressly cited in the forecitod paragraph of the
InstituC
3. Whereas it is replied. That the counsel
takes the nature of the crime which is coun-
■elled ; it is acknowled^ that this liokis true
in the general, but still it must be such counsel
as is instructed, and in this case it iras impos-
■ibie that the jjiannel might have instructed tlie
rdbeb, both with proper ways bow to manage
the rebellion, and likewise with anns and
borsea.
4. Whereas it is pretended, that the indem-
nity is not simide, but contains exceptions, and
that albeit treasonable expressions be indem-
nified in the general, yet the indrannity can-
not be extended to snch treasonable speeches
M import a counsel to rebellion, that being a
proper accession to the crime by which the
pannal becomes art and part thereof.
It is answered, 1 . Tbat * Terba legis, pra-
* sertim iaforabilis, non sunt cavillauda y and
it is impossible, withont offering manifest vio-
lence to the propriety of words, that the ex-
pressions libelled should not be comprehended
under the general of traitorous sp*3echc8 ; and
albeit treasonable expressions ir.ay be ilistiu-
guished into two soits, viz. 1. TUom; which do
only import a slander and reproach of his ma-
jesty and his government. And 2. these u hicli
carry in tliem a counsel, mandate or (ruiuiuaiid
to commit the crime of treason; yet ic would
lie a very bad rule in dialectic, to siiy that tlieNi:
words are not traiterous S|»eeclies, because they
are not of the first kind of treasonable speeches.
9. If it be the sense and opinion of all persiuis,
who hear these words repeated in thi;) libel, that
the same are traiterous speeches, then that
genus of treasonable speeches must necessarily
comprehend the same: hut so it is, that the
pannal floth apjieal to the lonK of justiciary,
and all who hear the libt^l read, if that was not
the iioti(»u whieh they had oi' these words, that
the sanrie arc traiterous siieeches. And albeit
his ma^y's advocate and these who concur
with hiin, may subtilize upon the nicety of
words, and reduce them to another class than
these which arc contained in the indemnity,
yet words' are to be understood ' ex populari,
^ quern penis arbitrium est, et jus et norma lo-
* quendi,' or otherwise words should become
captions and snares, and the people for whose
satisfaction tlie proclamation of the indemnity
was made, should not be capable to understand
the same ; and it is not ' usus artis,' but * usus
popularis' which must be the rule in this case.
df According to all the ciilea of ialcrpreUtioD,
II. l6M.—Pro€reding9 agaimsi [960
in things which of their own nature are not
odious, the words are tolie taken according ta
all the propriety of |>opuhir use, r. g. au isdt-
finite speech should be taken for one thatii
uniTcrsal, and the indemnity is not only a nsat-
ter not odious, but moat farourable, and therco
fore * a proprietate Terboruro noa est Rcedca-
dum.'
4. It is a stranffe nicety and catching cf
words, to pretend, tnat wordfs libelled shonMht
pardoned, in so far at they are traitaaoi
speeches, and should not be pardoned in fo fti
as thev are a counsel to rebellion ; for this «cn
indeed to cleave an hair, and it ianowayi nil*
able to that free and native liberty whicD ii ii*
Jierent ip such acts, to nm to metapbyBOJ
niceties.
5. Whereas it is pretended, that thejnnl
falls under theexcejitionsof Uieactof umIhb-
nity in so far as an heritor, and that it iscMj
immported by the words Ubelled^UiatbeHi
contrived the rebellion, and centribnted ibadi
by sending out men to the same, and tbal tbi
accession arising from counsel, imports m
much a^rainst the pannel, as if he had bes
actually in the rebellion.
It is answered, 1 . That the act of indeniikf
is opponeil, which excepts only bcqlMs m
three cases distinctly esprest in tbcaet,Ttt.
1. Actuid rebellion arisii^jf from these iroriii
Heritors who were in the rebellion. S* Cea-
triving. 3. Contributing by levies ; and tbil
counsel and iiitercommuning is not under nj
of these throe heads, for the eitent eftbenn
cannot be better cleared and determined, dm
by the nature of the expression ; and wbcit
laws have exceptions, nothing does so msefc
illustrate and cunlirm the rule, as ap-
pears from Novel 7. Cap. 2. in initio, wboc
these words are to he found, *• necesuiHiia
*■ existimavimus qua&dum exccptiones dare kgi
' cum multis vigifiis etiiubtilitateail invcotas,rt
* cas habens in auxilio, kx nequaquam more-
' clur ;' and the exception in some case dotb at*
large the rule, and does fully clear the saiM^
and makes it extend to cases uhirh otherwise
would not be understood to be com prebended, if
appears from Iaix, 12, parag. 43. where tk
case being stated, if when *■ doniUK instradii
' legata an contineatur vestis.* The laviff
doth resolve, that it is doubtful in the general;
but if there be anexceiYtion added of ' aumD'*
* argentum,' that the * domua instructs' mart
necessarily comprehend ' vestis, nam qni bie
' excepit, non potest non vidcri de caiieris veboii
' qua mea essirnt, sensisse.'
2. llie words * contrivaiice' and < plotting* v*
synonymous words, and are exprest in ibl
Latin by * onlinatio et tractatus,' and aa*
cording to the common acceptation of ^ '
words, these only are understood to have caa*
trived and plottcfT a rebellion, who have taku
measures, and laid down ways how to cany ti
and maintain the same, they keeping oonaa*
pondence in order to that end, dmwuig wM
LumJber could be engaged* faov iheyshadl
be provided viA lOBii u4 te like^ vhadi cii
l] STATE TRIALS, S6 Charles If. iSU.^Sir Hugh Campbell [OGt ,
* having- asked theiu where llit^y had bv^^np^j
* utid wnen I bey harl toltl Itiia ility httd cyme ]
' Jiom ihe Wi^stlaotl arm} Jjt* ^iil lie hail it-v%\
* more g^ua^ to thcRif tU;in coioing^ iVoin theni|J
* atitt he having askr'd lUem if ihey were lo re^
' turn, and they tohi him they knew not, au^l
* he stiid to theh*, that lie likci not ruiKiway!<|i
' and that they sbouh! j^et htip if they uoulill
* hide by it;* or words to that piit'pfti^j/kJs ibn^yjl
arc declared by bis mnjesty^s advocut, vi^^l
Thai tlu y should have officers or hcl|j< or k()II]<% J
^Mray s be inferred, as is pretended ,from words
^Bpke on un hig'h -way in a pasniu^ discourse.
^Hfce as^ plou and contrivances of rebetlion are
^^Uheir omi nature secret and latent actiou9,
^Bbich are done * clam et oeculto;^ and nu
' ntional man will presume that I he panne],
rlio \H known to be a man mo^t circumspect in
"^l^wrordi and carriage, could hn \ e fallen iuKi ilml
3, as to have contriired a rebellion with
lorant, silty and mean |)«r?ion«i (some wbere-
be did not know) in an open hi|^h way : aud
n hopeil the lordia of justiciary will iu tbi»
con^iirler the nersoii ci' the pannel ; and
ng- tlie words do not atnoutit to a coniri-
ftoe, or pbittina^ a rebeUiuni * rapienda est
aiiio qu£ praebet bcuigiiius reaponsum;'
[ albeit in ti Inx and improper aignitication
se words roigbt imnnrt a contrivance, yet
I pannel doums not but the lords i« ill hiivf*
I to tb« proper fttgrnifiration of the words
ItDg- otherwise it is impossible lo interpret
^iDdemnity with that latitude which his ma-
ty liath expressly required,
'lietvas it is pretended, that these words do
L a contributing^ to the rebellion, by Je-
J of lueo or inooey : It is aii!»weredrthat
ym^ of men and money i« a physical act*
I nut a moral persuasion ; and no man will
imaifi&e that levying of men and iiion^y, can
OOttMatin words, but the same doth necesi^uvily
dtseds of drawing men to^jether, and
Sog of their nainen in order to the forming
I into an army ; if words were levying of
I or money, an army would be \^y easily
jkpUed.
i to the former defence agHiost the second
, vi2, that it wants montii iCncI year, and
re H not least answer made, und tlierefore
i cannot l>e least use made thereof.
> Lortls f^oiHinuij this Court till to morrow
ordains the pannall to be carried l>ack to ,
ODf and tfie W iinesses and Asnysers to at-
d, ylk fterson under the paineof ty?e hun- \
1 mcrks. " j
day in the entry iho King^s AiWocatr
1, he |ias«>es from the second and last
jeiits, * pro loco et tempore.' The purl
le libel he and sir George Lack hart insisted |
I was, * That the said Campbel meeting ;
Itli the witne^j^ies c*^>mtng from the rebellion, )
uired whence, and hein|r answered, from '
we^lland army* desired them to return, for i
y would not wait asaistancc, adding, lie I
not like runaways.'
he Lords debateif very longf among them-
es as to the relevancy, replies imd duplies,
I at length carae lo give this Intedocutur. J
'* The Lord Justice- general, J u Mice- clerk, j
other Commissioners of the Justiciary, |
ioff considered the imlictmcnt pursued by
ttiuesty^s advocat, aijriiiQstt^ir Hugh Camp-
lidl or Cesnock, with the haill debrte above-
ABCfittaaed, 6nds the fiJ-st inditement as it iii
lilielled, «iz. ^ That the punnel having met ui(h
' tWe persons mentioned iu the dittay, coining
• lTt>m the rd)€la in arms, June it;T9, and
eMpreMjioos of help, relevant to infer thi:; puiti of |
treason ; and remits the same to tht^ tuow*
led;^e of an assyse, and r*?pels the defence
fciunded upon the indemnity, in respect I ha
dittay J as it is libelled, iiills under the ejcceu-.
tions thei^in mentioned, viwA also repells tliA
dcff nte of cr/i^i as propone*! and circnmstaniial
and all other defence proponed for the pann^
against tb e ti rst i nd 1 1 eraenl.
I do not lind the lords were unanimous in th4
interlocutor, but it carried by tdurality of
voices. EverVtbody wus surprised to tind thai
Cesnock^s defeicc of proving himself alihi^
that dav cond^ccnded on iu the libel, nhen hi
should liave uttered the expressions above se|
down, lo find lliis most vnlid defence, I sayi
repelled by the lords ; and this was a ii rests g^
of what the issue would have been, had do|
probation failetl. With this Interlocutor the
court adjourned lo the 2?th.
Upon Thursday the 97 tb, the assiisers wert.]
enlled and sworn, no objection being made,
Tiieir names are, sir Robert Dal^iel ot'Gleneai
John Boyle of Kelburn, 13; v • * -f*
Iff Kcllie, sir Patrick I^Iaxwel of s
John Veitch of l>awich, James IS,, .i.....i uf
I'osso, John Skene of Halyard*, ii» orge llrum* ]
mond morcliBof, sir James Fleming of Hatha-*
byres, sir John Oalmaho> of that ilk, Andreifi
Frazer of tCilmitndie, Alexander Nisbet of I
Craigentinny, James Som^rwel of l>rmn|T
•lajiies jloyd mcrchaut in Edinbtirgh, Jame« |
Loch of Dt-ylie.
For ProbatiiHi the advocate i>TOduceth Th<iA \
rrtan Ingrham and David Crawford.
8ir Pairkk Hit me objected for the pannef^l
that they could not be admitted, '• he^^u^tf f
p rodidrr unit tst Ijuqh turn , and rev ea! ed w ha 1 1 h e jf [
w outd say to his raajesly 's ad r oca It? and olhci* J
and also," that his majesty *i»advOi'iUc had Ittkeo |
their oath previous to auy warrrtnt from hit*
majesty's privie council, \\ hick is contrary Iw
his majesty's letter, that being only tccom*
mendexl to the lords commi«»iionersof juUiciarjf j
by anexpre^s warrant from the lords of council j j
aiid it is a certain rule In law. that * te*tii4re-J
' V elans tc^titnnniutn iuum p^irtibus, a lestiino- 1
* iiio repelliliir/ :md the ri^son giveu hf\
lawyers is, •- nc ex illius diCto alii* teMes su!)or* J
* iventur,' Mascard. de prob. courl. 359. No. MX j
2do. Because iu proving the pr*jteudrd crimepi
tbey acknowleilged ihemjielves guilty ofilifl
cf itoe \i hereof the (lanncl is accuse d, qs is cleiif ■
from I hi* common liiw. Cod. de a ecus, et in-
scriptr Llttg. Decause it is o0'«red IQ b^ ^TL<!r<(^^
65] STAT£ TRIALS, 36 Charles II. i684.~&V Hugh Camphetl. [96G
the witness) bad most seriously expressed biro-
elf in these words ; and urged, tbat lii^rham
vald not be admitted to Ce«u(>ok*s prejudice,
ml dti'd many famous lawyers to prove tbis.
The Kind's Advocate replied, That griving-,
rat not grantin^^, tbat the said In^haui bail
lias expressed bimself in a passion, it could
not ralioually be tboui^bt, that now in cold
Uood be would so desperately and wiHully
Aunn his own soul by perjury, to take away
die life of an innocent gentleman, especially
enridering be could pro|)Ose no other reward to
Umseff ttian damnation. He added further,
**to make it evident to the world, tbat the
libieMes have no design to swear falsly, I am
free to declare, tbat when they were brought
is to ne, 1 examined if they could say any
lUiig anent the late rebellion, and Cesnock^ii
■oeeHion tbcrcnnio. They answered, they
oMiU say nothing*; but when once 1 had made
ihm iwear as to what I should interrogate
AeB, thej^ defioned in the same express words
BMlained in the indictment, which, added be,
ckirly erinceth that tbcy had, and yet have
Ike immsion upon their cnuscieucifs of that
fcndful imjeiAy of G mi, who is J udge to this and
ID their actions:'' and the advtMrate i*oes on,
'^hiilhis man come in voluntarily anil offered
liABMe against Cesnock, it woulil have said
Mai; but sceiug be was brought in by force,
led without his own inclination, the oujection
■ede against bim can be of no force.*' This
dJNMiie was abundantly well calculate, lor
faipoff Ingrbain firm to the dcpositiou 'be had
■MBm in tlie precognition, which was all th:*
I wanted.
CflHMck's advocate was in no difficulty to
' all the Advocate advancf>d. It was* the
t thing in the world to put matters in this
to serve a turn ; and people of no
e, or under the power of revenge,
kHt BO pvat impressions of damnatiou, or of
Mand nis awtui m^esty: aud if any who
ittited these considerations were privy to any
Meert and collusion in tbis matter, tlicy have
hi as little imjiression of those tremeudous
Bat fuithery the Advocate for the Defender
4b«4te i»rove tbat this witness was suborned
jMvnr against Cesnock, and had got largely
Nlif HKHiey and victual for bis reward, and
hi aot only sold himself to tliis abominable
Pljaiyy but "had iuticed aud induced othci-s to
imoM coarse.
Uaon tbis allep;ation, the Justice- general de-
W, ibat particulars might be condescended
fHL And air Ho^h declared, that he was
Nl iafomied, and would instantly prove it,
hithb fellow (Ingrbam) was hireJ by Hugh
*""" ftctor to the deceast lord
^
oondcsoension was made, the
I BOt but admit Cesnock's witnesses
rihppiaofaf what was advanced. Accord-
^. two miMMes were adducetl who de-
'' ' Ingrbam bad sworn in
their bearing and presence a great oath, * Tbat
* be would lie avenged upon Cesnock if there
' was a way out of hell to do it.' Great pains
was taken to cross-question the wituesses, and
the interrogatories were put to them severally
in tlie others absence, yet they exactly agret'd
in every word as to this matter : J)ut then iu
another quer}-, tie.' * Wheu spake >t>u oi' this
» matter together.' The one answered, * lie
' does not remember that ever they spake of it
' together, unless it was yesternight ;' and the
other declared, * He did not remember they
' communed at all upon it.' This inconsider-
able variation not affecting the matter of the
cause, was handle enough to such who were
seeking an occasion to cast every thing pro-
posed m Cci^iiock's deience.
Next, two other witnesses were adduced,
▼iz. Inu^rhanrs father and mother, who de-
poned they had seen Wallace give to Ingrbaiii
several pieces of money, but of what value
they could not tell; whereupon Ingrham him-
self was interrogate, and declared be bad got
from Wallace half a crown at one time, and
ten shillings at another, but he kiiew not ujkiii
what design. The king*s advocate said, it
might be iValUce had given Ingrham that
money for some services be had employed him
ill ; and that he himself used to employ the
said Wallace as being a sharp roan, and very
acti^'e for his majesty's interest.
Aller the Lords had heard these debates upon
the witnesses, they reasoned at a considerable
length upon them before they catue to au In-
terlocutor. That eiAJnent lawier, n>y lord
l^tmeddeii,* debated much whether witnesses
* it ap))earsironi Wodrow, vol. % p. 605,
tbat lord Pitmeddeu (sit* Alexander 8eton) one
of the Lords of Justiciary at the time of this
Trial, was, iu June 1680, removed from that
otfice by a hotter from the king, which is re-
corded in the Justiciary books. ^^ His car-
riage," says Wodrow, ** in Cesnock's Case,
stuck with the managers, aud now be would
not go into the iiieasures laying down for bring-
ing in l*opery, aud tlieiet'orc ne is turned out
of his ]K)sts. His ability in law, particularly
the criminal law, is pubfirly di»q)vered in bis
inlition of sir (jeorge Mackenzie's Crimiuals,
and his love to all branches of learning ap-
pears in his curious and vast library."
Lord Hailcs, iu the Notes on bis Catab^gue
of the Lords of Session (Note 78) has puhlisht'd
the account which lord Pitmedden himself iu
his MS. Notes to the Acts of Sederunt gives of
his removal. It is as follows : *' Tliere weie
great pains taken to bring over l^itmefldcii to
the court side; and the lord Maitlaiid, then
popish, and many others, were sent by the
king's commissioncT to deal with him ; and
farther preferments were oileiod, on condition
he would but iorbi-ar to argue for the penal
laws. To which he answered, be was bound
by the oath of parliament to give faithful
counsel, as well as faithful vote; and liemg
impregnable, the letter [of dismissi'jti] was
%7 1 STATE TRIALS, 36 Charles II. l68 i.-^Proeerimgi ggg'mgt [968
("ould he ?\aniiae<] upon oath in a precognition,
ami bnjiigiit siirb nrfri'Hients afrainst this aa
couid i!iit be answered, save by tlic king's
letl«2r allowing ir, inipetratc with an eye to tuis
and kuch like processes. My lord himscit'uas
p!caM.-d to iiirorm ine, " Tliut be moved to the
Lords, at Uast that this nii^^ht be done ; since
by the kind's letter the wituebses oaths had
licen token, that beibre tliey were readmitted
to swear in the same affair, their former de-
Eositions might lie torn. But this, for as
iv^bly reasonable as it must apiieary was pe-
remptorily refused. However (added he) the
witneiises in prc&eucu of the assize, deponed in
tavours of the paonel contrarv to the tenor of
their first dc()ositious, which tfiey were said to
have ;;-iven in the first precognition."
At Icu^^h tli<{ Lonls came to this Interlo-
cutor. ** The Ijords havi.ig considered the
objections against tiie witnesses, and the de-
produced against him ; but not till he was ac-
(juainteil of it, and had refused even to go to
bpcak with the President of tlie Session, to
whom the production of the letter was com-
mitted. And it is farther to be observed, that
after production divers persons of qua^ty were
set on iiim to come l)ack to his place, on con-
flition of compliance in time to come: and to
this end the kiiio*, who had preferred Pitmedden
to be n Lord ot Justiciary, ibr his parts, ami
suffering for the myal family, did forbear to
present a successi>r to him in the session till
5th February 1687 ; and the Convention of
Kslates, a. p. 1689, made this and some other
ovcrtnrniu;^ of juHges one of the causes of de-
pi tsinir king James from his royal dimity.
KaiilH-r, kin^; Jain( s. ufttriiis exile, was heard,
iioth in Ireland am! Kniiiec, tf> regret his car-
riage to Pitiutddcn, and to biuniu his ipieen
for it.
•• St. Babil, being in\ittd by 3Io<lestus, by
conitiiaiid ofValens the ein|ieror, to turn Arian,
with n promise of rewards, and threatcntMl,
with n(i.i!sh:iu:i)is if !ii- lurived nut, autiweied,
* Itevva/ds \u'i\' fit to tempt children, and
* tljiviils i,;ti riif\ coward^.' Tlitodoret Hist.
Ereles. 1. 1, c. 17/'
ijiixl iiaiies proceeds: *' I>ird F«ninluinliall
obsenes, that in the jiarlianient IdGO, of all
the Judges, Pittneddeu only, like Athanasius,
opMDsed ihc court, vol. l/ p. i i7." I;i this
page of Fouutainhail, I flud theioilouing pas-
sage: ♦•Feb. 11, 108(J, >l:-. Alexaiuler Mal-
roini, of Lo( iioiv^ .\d\oi-ate. hU hlier Irom
the king is read, iigiuiuutiug hiui a lord of the
session, in place of i>ir Alexander Seion, of
Piti:;cd^k.'n, laid u.'^ide in .Vay last, for opposiiipf
the pa|iists in parliainei.:,** but nothing about
AtiK.nu.4'iis. Lord [lailes in his Notes on the
Caiaiog;ie oi the Isolds of Session meuiiuns,
that in the year 168J> a new commission uii-
der the great seal was irr«uite<l to the Lonls -i
Session, and sa\ s, that upon that occasir- r '■. .rtl
Pitmedden (MS. Notes on the liooks •.! ^sede-
rent) obserres, that '' it makes tlv ii places,
which, by the act of James (>, were ad viiam
bate tlierraneJit, they, In respect of the an«
swers, repel th«* objection ancnt proditio Usli*
moiiii, and re\w\ the second defence as to tnaut
criminis. And the Lords having oonsidered
the other olijections, and heard the witnesses
adduced by the pannel lor proving the saine,
ordain Thomas Ingrham and the rest of the
witnesses adduced by his majesty's adrncate,
to be received."
When Ingrham was brou^it in, and hoM-
iiig up his band to swear, sir Hugh directed
himself to him, and s*aid, '* Take heed now,
what you are about to do, and damn not your
own sod) by perjury, tor as I shall answer to
God, and upon the peiil of mine own sool, I
am here ready to declare I never saw yoa ia
the face liefore this process, nor spake to yuu."
Then Ingrham was solemnly sworn, and in-
terrogate upon the whole Artick*s of the libel.
Several things fell in this witness his esimi*
Tclculpam^ become arbitrary- ; and therefore I
opposed it, and aherwanls found the froili of
it, when I was turned out of my place, as one
of the number, for no other cause, but the op-
position I made to toleration of popish idohtiy,
in the parliament holdeo a. d. 1686."
Lord Iiaiies (uhi sup.) informs iis, tbttthe
king's letter to the Court of Session, intimttiiM;
the dismission of Pitmedden, bears, that " ^c
hare removed him for reasons best knovni to
ourselves."
The « Claim of Right" passed intbeCon-
vention of Estates at Edinburgh, April 11th,
1G89, recites in the csitalogue of measures W
which it is tbund and declared, that king Janes
'' invaded the fundamental cor.stitution of tbf
kingdom, and alttTid it from a legal limited
I monarchy, to an :;riutrary ticspotic power, and
' haih exercisexl the same to the siibversion of
the Protestant religion, and the violation nl tbe
laws and liberties of the kingdom, invertiDg iU
the ends of government ; whereby lie hath for-
leited ihe right to the crown, and the tbrooeii
become vacant,*' the folioviirg articKs *-Bj
sending letters to the chief court of justice,
not only onlaining the judges to stop and d^
sist sine dtc to dt- terminc i au»es ; but al^ •^
dering and commanding them how to proced
in cases depending before them, c«-.iuar)' ^
the express laus ; and by changing thenaunt
of the judgis' gifts ad vitum aut luipam^ ttti
I giving them commiiBsious (/./ Unrpiariium^ to
j dis|Hisc thoni m compliance with arbiovj
ctiurses, and turning them cut of their officei
j when lliey did net comply.'*
I Lf»rd PiiiiiLMtiien pnbliVhcd a tieati^ **0{
\ Mutiiacioii and Demembration," subjoined w
! the second editiiiii of sir (tceorge ^laekenzie'i
' * Law of Se<«iland in M:aters CriminaJ,* Wi
i tiP9 . 'I'his tr(*utij)e fAtr\k s that the author hd
*^tl many hooks. lx>rd 11;ales' Noti4 0D ihe
; ataiogue of the l»rds of Session. It appflU*
I hat Sctou \%as made a Lonl of Session in ihi
year 1677 ; and Wodrow, vol. 9, p. 605, spfliki
'if him as being alive when tbaft nduiiM vM
published (172^2).
STATE TRIALS, SSCmaelhs IL l684.— 5«r Bugh CampSSl,
1, which we caniiut expect to meet %vith ,
the refcislere. And tliept'tbre I bltalt pjive ,
' Depositicm of Uiih the wiliiesHfir a.^ lliey \
1, «Dd then a lartfir at^cooiit of ihe
from gCKjd vouchers be! ore nic,
T^kjMkts Ingrham in Bt^rkntls, aged thirty '
yetirs, deiHNies, Tliat havinj^ nitt the
lifcin) of Cesnock^ at Oauid t'rrtwfoni's houve
'n Guhtoun, at the time libt^llt-it, he heard
e«nock ask from whence Ihey caiiip^ and ;
aniel answered, fpini the Wrsl-lond i>arty ; i
md that he asked^ who coniinaiided ttieni, ,
iniwfoiil said, one HAmilton. And the depo- .
I being inlen-OjLfate upon the rgst of the '
if depones he knows nothing i*i* it. And
thii is the truth , as he shut I answer i and
cannot write. Hii; Subscntfituf^VsMTU, L P, D. j
Daniel Crtmford, a^ed 30 years or iherehy, ,'
iftnrtHf purged, aoU «wom'. depones ne^ja- |
»■ cly to I ij e w hoi e I ihe I . And this is t Ji e truth ,
id dejMinti* he cannot write,
S(C Hubscribilur, Pehth, I. P» B.
The assize, with one voice, hy the mouth of
ir John Dahoat>oy their ctiaoeeUor, bsiving:
sidered tiie indiitnient and d^pofiiiiouf}
if the witnesst-«, a;»'aiost sir Hugh Caniphell
~ IcTof Ceanock, finds the lihel not proren.
Sk Sut/scrtbitur, J* IhUAXAHOTt^ Chancellor.
The PanuuJrs Procurators asked atj4 took
instruments uf>oii the Verdict.
Thus» ciintinues ^Vodl'ow, the process stands
the records, and more we could not look for.
iat it U worth the reader^s while to iiave the
letail of I he circumstances of this remarkahle
Ixaminaiion from ihc papers ahuve meniioned.
ud they inform rne, that Ingrham dpj)oned,
b%:Ui^ in the housv ot" Crawford, Ces-
^ e»rnc to the dtnir, and having* calletl upon
Wid Cm ii*^ ford, ht asked, yvbal men those
wlio were in his house ; Crawford answen d»
were men lairlv come from the West-
army. Then tesnock asked, who cnm-
ids there. Crav? thrd answered, one Robert
lilToan. As In^rham was coing^ on in his
tion, one of Cesnock*8 Tawjers asked
, whether he had communicated xhh to
others, to seduce them thus to dt'pooe,
toM him, he wa.s wtw under a tleeji oath,
nd nothinjjj less than his wul at stake,
fiarhani anijw'ert'd, t hclie*'i' I have spoken of
in iever-ils. Then the ju slice ^nieraJ asked,
XVsni*ck spake any other wonis to Crnw-
»rd ; IftLfrhjui answered, My lor*!, I am now
my g^i'eat onth, and I declare I do not
roiienihcr he spake any more at all.
Upon tJM9 there wais a great should and
'^lappingr of hand^ in the court ; at which the
iMiag^s advoCHle ^d tn a ^^real paiifkM), tJMi
W Mid^ diat Cesnock bad btred hia fvioids
10 make tliia acclamation, lu order to conibutid
the kind's Lvidence, and he never he^wd oi'
a Protrstant roie, cjtccpt in the trial of
that he had always a kindness
iwafioa till now ; thiit he was eon-
Tinced in his couiicience, it hugift the mo6|
ilamnahle trinket in nature.
Afler silence, the justice -^enaral interro-
gales [n^ham asaia ; who answered, tie had
jiftid as ujnch a^ he could aay upon oath. And
the ju»iite-ifeneral offering: & third time to in*
terrufrattf ingfrhftm, NisbetofCiaigeiitinny,
one of the assi^cra, rose up and said, ** My
lord juKtice-gmeral, I have been an aasiiser io
this court above twenty times, and never heard
a witness interrogate upon the «atne thing
more than twice ; and let Cesuock^a ptrswa-
sioD be what it will^ we who are asat^ers aiid
are to cognosce upon the probation upon the
ueril of oor souls, will take notice only to
iagrham*s tirtt deposition, thoug'h your ferd-
ship should interrogate iiim twenty titnca/^ The
Justice-general answered him with warmthi
** Sir, you are not judges in tbia case." The
laird oi Drumf another of the assizem, pre*
seniJy rephed, " Ves^ my lord, we are only
competent judgea as to the probatioo, thougn
Dot of its relevancy." Whei-eupon the whole
aittiisiere rose op and assented to m hat those
said. The justioe-generalin a great heat satd,
*^ I never saw such an u[irore in this court,
nor, 1 believe, any of my preifecesaoi's before
me, and it is not us you oontemn, but his ma*
jegtv'sautliority/'
ijil^ce being commanded^ Cmwfotd the
other witness wa<i eallwl in, who being deqdy
sworn, and no object ion being made agninft
him, be dcpontnl negative, '* That he did not
see Ceanock for a considerable time either be*
tort" or after Both w el -bridge ; that he does not
remember that Cesnock apake any thing to
him, either about tlie West-land army, orwhe
command i;^ them/*
Whereupon there was another greal ery
made, and clapping of hands, which pot the
Justice-general and AdTocate into a great rage,
a& what they reckoned an irreverent insulting
of ibe court. Then Cesnock 's adrorutea craved
the Probation might he remitted to the know-
li*dgeof the Assise, which could not be refbsed.
Ano alter a short speech made to them by Ccs-
Dock*s lawyers, they inoJrtsed tbentaelven, and
very soon returned their Verdict, Not Goihy.
Upon which Cesnock took iD?<trumenta, and
Ills advocate enrved be might be liberate, in
respect n<iihing was proven against him. The
Jim! ice- general an.>$^vered, that seeing be was
the kittg^t priaener, tbev mast have bis tna-
jesty*s mind befbre he be liberate. Cesnock
replied, that he was content, fm* he was ahun^
dantW certain, the guiH charged upon him
could never be proven. The court sat late, ot
rather rarly, it betiig about two of the dock on
Friday morniner before they rose, and Cesnock
was returned to prison.
It is very eviffent ipon the whole, there WM
a design formed to hf rng this worthy gentle -
mun tinder a ;H*ntence of death, and at least to
take his estate from him, though there were
tew gentlemen less obnoxious to the lawa than
he. We see that now no methods Were
belled at» though uever so rile, Io
I
I
I
I
I
971 J 8TATL TRIALS, 36* Chaklbs if. \6S4.'^PreceedMugs agmtut [072
plish wicked de«jg;ns. Suborning of wiuia»es
IS very palpable iu this case ; who were guilty
is not Diy provioce to determine : and the king
most be drawn into this affair, bj procuringf a
letter, which we have seen above, ordering
precojrnitioDs to be taken upon oath by the
justiciary ; and. yet we find iu this case they
were taken by the advocate alone.
It may be proper further to remark, in order
to the reader's having some idea of this go-
vemiQent, that ^be iusiice court, which ought
to be OKoat just and fair, and give all allow-
anoes in cases relating to mens' lives that law
and equity suggest, were in this case evidently
partial in refusing the relevant exculpation of
MlUdy at .the time libelled, in casting Cesnock's
witnesses for exculpation, and repelling the
most relevant defence propounded upon a tri-
fling circumstance ; and in their unaccountable
carriage to Inghram when u|>on oath, and their
open endeavours to push him to perjury, so
jjain, as the assizers, none of thein Presbyte-
rians nor favourers of the sufferers, could oot
bear them ; and iu their hectoring and abusing
these gentlemen, lor acting j^ conscientious
persons woidd do.
And if those were tbeir methods with gen-
tlemen and before law}ers, we may easily
guiess, how little justice or equity iHiur simple
countr\ people, who could not bell the cat with
them, had to look tor. And what sad work
would we meet with, if we had full accounts of
their procedure from one who knew forms and
law, and had been a witness to their proce-
dure *.
-I caunot pass llii.<> process without remarking,
that several uftlie assi/.c-rs, and otlicr gentle-
men in the house, wul- brout^lit to no small
trouble for the noi&c in the couil, at Jnt^ham's
declaring he could say no more, which the
advocate \i as pie.ised to call u L'rotostanl rore.
And indeed so lie n)i<<^iit, for it v^us an evidence
of the satisfaction of the spectators, at tiie mis-
fi^ivipg of the design of the managers now giv*
mg into a popish successor, and tyi*anuical and
aroitary measures. Seveials were brouglit be-
fore the council, and by them remitted to crave
pardon of the jubtici.iry. I gi^c it as it stands
iJi the criminal hooks, April 'J4.
'' Appean d sir Patrick Maxwel of Springkel,
Alexander \isbet of Orai^iiitinfjy, James Lind-
say of Druiiiburgj bcini;- pursuei] I)€i6re the
council, for makin'^ a noise in the time of Ces-
nock^s Trial when the u itnesses were examined,
and were ordained to ap^H^ar before this ex>urt,
and make ackuowkdi^'emcnt and ai>ology there-
fore, which this *lay they did.* "
We shall iust now hear, ihat A[>ril 17th Ces-
uock was allowed free prison. And June 39
I find by the Kcgisteij that the witnesses
against Ccsnock are still in prison, but tliat day
tijc council allow theia free prisson ; and for
any thing i knuw, they eouiiimed a consider-
able time in prison; For September 10 the
f oimcil ordain lugrham and Crawford witnesses
• «*aVol. a, p. aiJi.
against Cesnock to be examined by the Com-
mittee for public affairs. The day before, Sep-
tember 15th, tliey send Cesnock and Mr. Jono
Rae to the Bass. October 13. 1 tiod the coun-
cil order the witnesses agmiost Cesoock to be
continued still in prison, and they are allowed
sixpence a day. What they expected from
these witnesses, or for what ends they were w
long dctaineil 1 cannot say : only we shall
find that Cesnock was afterwards forl'eited, sod
his estate given to Mel ford. In all this matter
this gentleman hath nothing relative to the
{dot laid to his charge, though that was the al-
eged cause of bis imprisonment.
December 3d, 1684. TheComicil|^iTeorden
to the Advocate to raise a process ot forfeitore
before the parliament, by a summons in Latin,
after the old way, under the quarter seal, uim
a charge of sixty days, against Cesnock eUer
and younger, Jerviswood, and several others.
January 7, 1685. In the Council a Letter ii
read from the king apfioiuting certain noble-
men and gentlemen to be processed before the
ensuiujg parliament^ and the Council form the
following act :
'The lords of fiis majesty's privy oouocil
' ha> ing a letter from the king dated Whheball
' December *J4, signifying, That his mtjcidy
* having indicted a session of parliament to
' meet at Edinburgh the 10th March nest is
* come ; and seeing his iniyest^'s royal brodirf
' cannot stay so long, nor is it fit lo keep die
' members so long together, as sixty days majr
' run from their first meeting, before the pro-
* cess, necessary to be raised against suck as
* ai*e arces:<ary to the late treasonable coaspi-
^ racy, and other crimes of treason, can come
* in ; and it having l>ecu ordinary in the r^igu
* of his majt>sty's ro^al predecessors, to is»ue
* out processes in such cases, for citing those
^ who are to be accused ; and therefore con-
* manding his advocate to raise processes be-
' ibre the said session of parliament imniedi-
' ately at sight hei-eof against the whole per-
' sons allermentioned, viz. Dcnholm of Wea-
* shiels, Stuart son lo Cultness, sir Julrn
< Cochrane of Ochiltree, James 8tuart son to
^ sir James Stuart Provost of Edinburgh, tbe
' lord Melvil, sir Patrick Hume of Pulwart,
* George i*ringle of T(»rwoodlcc, Aoilrew
» Fletcher ol' ^Saitoun, Hume of Bai-
* senden, Hay of Park, sir James Dtl-
* rymple of Stair, Walter Lockart of KirktCMiB,
" Montgomery of Langshaw, Joho ^Veir
^ of Nev^ton, Mr. (.lilbert Elliot wr:tcr io £dio;
*■ b^r^h, Catiipbell of Ardkioglass, mt
* Hugh Campbell of Cesnock elder, sir (iwr^
* Campbell younger thereof, the heirs (»f tbe
* deceased earl of Loudon, the heirs of lbs
< deceased Mr. UoU-rt Martin late clerk to die
* justice court. The lords giva warrant accord'
* iugly.'
" In relating the criminal proceedingi in
S«utlaud, which .were had during the next year,
STATE TRIALS, 36 Ch ARtts
tim Trial of Sir Hugh Camplicll, Wod-
WTites (hns :
^ By the written Minutes before me of this
Serilnt, I find tbatCesoock's Bill for excul-
pation, was thi^ day, May Ht, before the
lord» of the Hftlcles,* coo!iistlDff of his defeuoei*
that he was aiibiy that bach as he Lad converx-
^4 with, wlio were at Bulb wet, had taken I hi;
^^pd^ that liis case was *■ reK Imctenus jndicatco^
Mm nn enunirration of the stejis of the loyalty :
But t!ie short hinlK before me do uot bear wUaI
I done ab^ml it."
lay 13th, ** The parliament ratify *he pro-
I of forU'iture agpainst Robert HtLuiilton of
rtklnnd, Mr, Robert Rally of Jerviswoodj
I Archibah! late earl i*f Ar^'yle. We hare
I ih^-se were three of the mostiniqutius sen-
.«s (iron oil! iced by the Justiciary ; and had
i tlie ivitTie5i8e3 failed in C^^ennoct^tj pr<K-es9,
t should imVe had all the unjust interloeutorii
Dn that heail ratified this day likewise in all
'abdity.''
Ittt upon reference to the Books of Parlia-
Dt no procee<hiigs concerning the Camjtbellj!!
"Desnock have been i found under this dale*
Of the jurisdiction of the Scots Parlia-
nt, Mackenzie wriies thus :
' Since the parliament i$the supreme judi*
y, it may certainly cocrnosce all causes iti
i first instance, And of old, if a person ac-
cused for treason did absent himself, the cri-
I jminal court nor no other inferior court could
^■pceed to take trial by probntion against him,
^H| so all they could do, was only to denounce
^mn fuifitive For his absence, upon which de-
Dunciattoo his escheat did only fall, but he
couM not l»e forffittnl ; and therefore since il
was unjust, that he should by his own absence
cure to hin:sti)fan impunity and ej^emption
forfriturc, the parliament di(l, by their
■retne power, cite ibe person gaiilty, to ap-
Lr before them^ and did lead protiation in ao-
» aipainst him, and forfeit In'm in absence
^h guilty. But It being* found inconve*
at, that parliaments lieho?ed either to be
Hed. or such delinquents pass unpimished,
jrcfore, by the 1 1 act : 2 purl. Char. 1- it is
luted, That the justices may proceeil to try
nes by probation^ eren when the person
I is abstnt, in cases of treasonable rising in
tli8, and optn and manlfei»t rebtllion against
[ inajef^ty or hiii ^ucce^on; and their auiho-
(tj : K*» iIklI the parliament ore yet only judges
|flie triiil of all crimes, by probation aguni&t
ents, ejceept only perduclliou, or open and
anifest trea.'KJO. And atlteit it may se«m
ngC;that tlio justices should tiavebeenal-
t>wed to lead probation acfainst absents,
In thrs which is the j^reatcst of crjmf:s, and
ittot in crimes of lesser impoitance. Yet thla
^■ioeeeded from tbt^ just detestation which the
^Brliament bail of this crime, and that the
^Knlshmeot thereof mt^ht not be dtlayed,
^^fcere fhe delay mig^bt prove so dangerous^
' •* If the parliament foifeit any person after
cognition ol the cause, the scuteuce cannot fie
U. I6fl4,— Sir Hugh CampbilL f y74 ^
May 15. Wodrow says, " The criminal pro-/
cess eomes on a^iust the noblemen atid gseti-*^
tlemen who arc cited to this day. The lata "^
alled^ed ctinipiracy was the pretext of forfeit-
ing^; but this process was really intentodi]
against them because they were averse/
from prelacy, farourers of presbyteriatis and
possessors of gi»od estates. This day par-
iiamcot have read before ihoai the King^s Let*,
' tPY lu the oouiicil, and their orders to the advo« '
; catc to cite them in the dtttay ag^nsl them all* J
I There were prr^ent t'esnock elder and youuy:er '
[ and some otberf?, under date June 13th . Theie,|
' ditts} is read charginaf Cesnock iiith accession ,
I to Bothwell, and both of them with the plot.
I Tlje advcK:ate restricts their libel to the jdot, J
, anil for probation adduces Commissary Monro»
I and llip gentlemen's own confession, which wai *
read, viz. that they acknowledge they were' I
at the meeting mentioned in Mcmro*s deposi- |
tion, and throw themselves on the king's mercy. I
And Mr. Caratairs^s deponitions were read
again, the parliament found the dittay praTen*'^
The lonl 51 eh ill imd Langshaw are senteoccd
in common form, but in Ceanock^s case, thi
cjuarrellrd by any inferior judge, act 39 pari*- J
*Z king James 6. And thoiLgh it be added to
that act, that no forfeiture lawfully an<l or< '
derly led in parliament, shall be quarrelled by^
aT»y inferior judicatory ; for these words * law*^
fully and onlerly led/ ceem unnecessary, sinc^l
after the CiH^dtton of the cause by the parlia* \
ment, no inferior judicatory can quarrel a de-
creet of parliament, eren though it .be pre.
tended that t!ie said decreet was not lawfoll
and orderly : yet, if a person be only denounced j
iugitive by the parliament, the lords of th«
session may suspeniJ in that easCf if the process ^
was not orderly led ; but whether they can i
duce, even in t"hat case, *■ est alt ions indaginlii«**
And some think that thou*rb it were very in-"
convenient, that such a di^vrcet should receive
present execution, where |His»ib!y the party
wasnot lawfully cited, yet that «ueh respect w
to be paid to tlie parliament, as that the ille^ra^
lity of that procwlure before rhem, though nob
objected before sentence, should remain nude
tided till the next session of parliament.
**• W the parliament shoubl remit anv sudf J
process for crimes, to any nf their ownf
number, to be decided tiually before them, it (
bath been doubted, whether their deciflion«|
could be reduced by the session : and this ac€ j
of parliament reaches otdy to decisions in jmr- I
1 lament. But yet^ si nee "decreets pronounced |
by commissioners of parliament are repute
with us decreets of parliament, and since de^^
creets pronounce«l by cotnmi^isioners for valua*
tloD ofnends, arc not reduceable, because these ^
decreets are reputed decreets of parliament, :
being pronounced by such commissioners (
parliament, it seems that decreets pronoimce
by such commissioners, in crimes after proba-1
tion, could not be quarrelled and reduced hjn
the session, or other inferi^ judicatories.
CnmluaJs, pt« S, tit. 3.
979] STATE TRIALS, 36 Ch ables 1L t6Bi,^Prweiingi ug&insi \^(J
<Ioe heirby atithonse anff rrqiiirp \m tf> iml
iKe saids sir Hiigh aticf h^HAh
prisoners lo our We oi' tfi \n h-
main prtAoners until I ue uj^
dare our farder pleasure * »» ftr
cfooitig H hereof (bis filiall be io yon an^ rH
others who may be U»ei*^iii corjc^rt>e4 it^jirc
tjveh% a sulHcient warrant, AnA mm mw H
ynii heartily farewdl. Given at ourc'tcrtit
Wbit«halt/tlie 7th day of Jnly WBS, wwl vf
our reigiie the fuid year, by hts luajrstirs cxn-
mand. 5/c Suhscrtbitur^ Mcinaj^ir-"
** The Loi'da ©f the Conimittee al' htt H
ti«a Priry Couucill for |mbh*t-t aflkin.
gWe onlijr to tlie olerks of t^uncill, lo wrtiil
sir Uu^rh and air George CatE*tibelb, aom
Jttirfla of CeiiMNiJc, to repair imnittliiiliy i
to rec«»ire iliecetincills cocmaaiitis.**
On the latb ©f Sepieuihcr, '* The 1
derwritteti is direct frotxi thm Couooll toll
Lords Secretaries of State^ oflT which thet
tollowes :
** My Lords ; There being a Ldttr Ins
I
time aiMl place of their execiilioti is remitted to
the king simotkiter* The commiisioner hav-
ings sig^uitied he had iostructioiis to spare Uieir
lives IT they would be iogenous. AfU-r sentence
was pronounced with the iistial solemniti^,
old Cesnock desired leave to speak a word and
lilierty being- e^mnted he saiu ^* his sentence
' M.v ii^hiy^ and he wished it might he
n itst all coDcerncdf but one thin|^
ut-i I u iinii more ihan any thing which con-
' cenie*! tmuselff and that xtas, that his crethtors
were like to suffer with him^ and humbly sup-
plicate that his grace \ht commis-sioner might
represent their condition to the kmg^s majesty*
Ibr before they win^ losers he would rather be
content lo starFe."
Upon Inference to the Books of Pafliamaitf
the^e proceedings against the Cesoocks 1ia>e
not b€^ found nnder this date. Under which
however appears the Act of AnueiatioD of se<
veral lands to the crown, spectiying atDHiij^
other traitors whose lands are annexed, 8ir
Hugh Campbell of Cesnock, and sir George
Campbell of Cesuock, as traitors lately for*
faulted. June 13, 1685. It is act 42 of king
JamesTth^ Ist parliament, dated June 16, 1666.
In the Privy Council Register of July Ist^
I686« it appears thai a Letter there inserted
whidi wi& written the day before to the Lords
Secretaries of Slate, was read, voled and past.
This Letter among other matters desires '* tkeir
]ardshi|Mi i^ ill be pierii^^H to remember to send
down tlie reiutsaion to the two late Lairtls of
CcMod^ whidi w^ sent up mme time agoe
aufkBd with my brd Advocate's hand/'
On the 9th of Joly, is read a Letter from
Lotd ^Hrretary Murray i in which he writes^
. *> As to Cesnock^s rennsston } hope it shrill be
\ dsnt by the next poet with the liifniticatioa of
hia majealy's pkavure theraauent.'^
On the drd of September, '' The Letter uo-
derwrilten, direct ^rora his moat sacred ma>
jestie to his Prif y Co unci 11, aneni sir Hugh
attd sir Gef)rge Caanpbles, aotnetyuafs Lainls of
Ceenuck, for aemkn^ them prisoners to thi< Isl^
of Bass, untlll hia ntajesiie ahould think litt to
declare hrs tarder fileaaiireooiieemmg them,"
beiiT^ readf was ordered to be recorded. O^
w^iSb Letter the tenor followcs:
JR.
** Eight trustic and xvelbeloved cousin and
coiincellor, right irustie and intirely beloved
couitn ami councelEors, right trnstie and right
welbekived cousins and coimceliors, right trus-
tie and wdl bdoved rousius and couiiceDors,
right trustie and wetheloved councetlors and
trusiie and well Moved counoclkni. We gr<?et
you well. Whereas we have been gr»dausly
8 leased to grant a remission (of the date nf
jcfle presenU) to sir Ough and sir George
Campbles, sometymes Lniids of Cesnuck, jor
the crimen of treason therein mentioned to be
only extended to the securitie of their lives, in
UMner therein fully expressed. Nevertheless
not bein^ as yet resolved to seU them at tibcr-
tie, h J$ Aow our will and ^kaiure, tttd we
the king, ordortng tlie two Caiu|>biee, lilf if
Ceanockf to be sent prisoners to the Bias, sot-
withstanding of his majesities reiniseieii le tk«si
for their hves and being at treed^kin tmd \dmff.
Bui the said Cesoocks being jitit at bbernr
u[ion tbesaid reotissioa b^Jbr the said Leltff im
coDununic^e to the coiinciM, the Lords irf Us
Committie this day m< ^^ ' ' ' 1 1 to ■finajirt
your lordships howt tnds, ts ill
end his majestie beir^ - ^ ^ nmi
plfttsure may be kii wmk
shall be readdy obeyLi_> .:,^ ^ ^-i..i,,..i.t. b
whose name and whose comnNind thnr m
signed by your lordalii(}s' most hvin&b!e sensit
Sic Subscrihiimrt A uKii . G Ukscv£» "
Onth^ 5tlt*fn T- ♦•The Letter aiiiir>
written, direct n ul Seeretai y Maiys|
to the right hon..;.,..o,u ^ '■ -'v ^ f bis tn^fS'
ties most houiiurable Pri> r anpoialel
aComntitticiiir ptjUIirl uti _ . „,.i ui inr ml*
ing the two i ate ot Ce&nock pi*
soners icj the H - r»-T*d wli^, onkfTedts
be recorded, ami ane fiisjmlch ^'> V<t v
sent to Leweteneiil CoUoneU j , -.r ^i-
prehending and bfinging them prisoiiMs to m
said Bass, to remain therciu till him niaii*<i—
further pleasure, Fgllowesthe tenor of^e^
^id Letter :
" My Lords; I lo , • - , , ^j^
t h e 1 Bth 1 nstan I sj gn * J* . .^
of Glasgow, in yourluiusiin)i» n mmj
a letter formerly directed troii. it> tkr
Privy Counciil, **rdonug llie u>*. i ^naplilf*,
late of CesMock^ to be sent priiBooers lo tis
Bass, notwdhstandiog of his r« '
sion to them, for their lives, \
given ane accompt tonhis mi\it sf I
now c<»mmande4l to let you
not well satii^tied with thc
made in putting his pJeasv.
in execution « as it was tu<
Letter. And therefore it is itui^ las
ex^66«e pleasure that with aU rfni^mirtrr ^M^
1 ha*«
It fso
know bek
t basboeo
iaei ihm
STATE TRIAI-S, 56 Charles II. »634.— Sir Hugh Campbell.
pjrs
De Tmir lardships cause thcm» tbe satdt two
rCeflniJck» lo bt* sent under a
* the Bassi, with tU(* necessary
^:r (fetalnetl |msonf re there
rin^j bis iji -asure. J am, uij' lords,
lordsiiii^ > -M ..-. iaiinlde servani.
ificSuhxrtibitur^ MoaiuT.*'
t Windsor, ^9th Sept. 16P5.
owes the tfiior or the Or<l or given to Lewe-
tenent CoHonell Murray ;
Yon are hereby required an J com man tied
v|,«^ sight heiTnt,^ io oriior a sufficient |»ai'ty of
> ibe ibrc^a uniler your co)um)iiid to apprehend
i persons o( the lw*o Campbles, late ofCes*
k, aad if nmed lately to cuuse the said par*
port thsiiu safely prisoners to the Isle
^a«R, there to be demiited pnsoiiera,
■his inajeslies pleasure, confnrni to a
firect from the lonl Secret arie ^Icjrray,
^majesties command^ dated the twentie
'ay of September last, and the deputy
Ibr of the said Isle of Basu, is hereby
to receave, and deteao, the aaids two
of C€^nork *, prisoners imtili bis
» iiinler pleasure, g^iren att Edinburgh
4ay of October 1685.
I SubicribUui^ Taebat,
Da, Falconer Ramsay."
^, fottiwing Panages from Fount alnhatrs
Vtcimns relate to ihcse Frocccdin^i :
the 14th of July 1^2U betwixt liTingston anff
Gallouay» where the lords' so tar tlisappro^'ed
such extrojudicisl ilecbirutions, lliat they im-
prisoned one i'or taking' them, • j
'* Then on the ':5tU the ilebate began ; anl*
it was aJleil'^'cd, that what ihey had libelled*
aguinst C*esuock the panneli were at mmi but
treasonable speeches, and so were ex-pressly
pardoned by tne indeiimity in July 1079. 2. ft
was positiv'iely offert'd to be pn»ren, that he was
oitli, and not at the brlrlt^e of Galston, all that
day on which he was hbelled to have nttercd
these words. 3. JVb?i t"on.ffrif they were rebels |-
they n ei til er being- denouticed furtive, tv»r de-*
dared traitors; and as lor ti-easoir ' ,
the law^ of all nations have rogai a
little. Tbe Roman law save, * Litbricurn Jing^me
* ad ptcnam tacile irahendura non ost,* L 7^ i»*
ad l^g. Jul. Mnjest. and the J. imic. C. si quia
imperat. tnal^dix*. puts very favouruble and
charitable constructions on such escapes ; and
sir Edward Coke, one of the great judges of
England, in hii Institutes, tit. of treason, quotes
cases, where seditious ^vords were found not to
infer the crime of treason, But i'erth jus*
tice general minded, that by acts of parliament
in England, since Coke's time, viz. since this
king*s restitution, it is declared, treason may
be committtd in words ; and thus Edward Stal-
ley^goldsmithf was condemned and executed fot
treasonable words at the time of the breaking
out of the popish plot in 1678. Yet our own
acts of parliament, before the year 1661, were
not so express again si such wonli, except that
March 24, 23, 26^ and 37, 1681. Were speties of leasltg- making between the king
ti — u « j^qjI his people; and the '2d act pari. 1669, ar
it requih^s that such exprej^sions be dehl>eraie
advised and malicious, so it declares thnt fa
some sorts of rash and retleeting speeches <
the king's government, they shall not be puri
suable afler eight, monthtj tune. And whereni
the king*3 advocate answered, that the treasoiiJ^
able words libel kd against Cesnotk, wera*
*' counsel and advice ;^'umUo not * nudayerba,**
hut art and part of tneastm, falling under t'
word It, ' ope et cousiiio j' it is replied, i
were treasonable counsel, (which is detiy»?uj
that is no more but treastmable words, and imc
art aud part f>f treason ; seeing tiier words
were not previous to tiie rebellion, but it was
already tbnned ; and by this we would con*
found the limits of two cfiderent species oftrea
son, the one eonsistiug ^ in nuda emissione Te^
' borum,^ liable to mistakes, especially of men
up in the criminal trial of sir Hugh
J of Ceanock fur treason. The king^s
iirst craved tbnt the criminal lords
' nMgttt take a precognition whRt the witnesses
; the king could say, coftlbrm to the power
ved by tlte king's letter, in such cases, be-
they' should begin his trisi, Alledged for
1. ThlswerG prodcretatmonium, 9,
iild not be now done, seeing the very day
nal^ appearance was come. 3, They
t precognoscQ even by the king^»i letter,
• warrunt from the pri^y council.
Upon a council was instantly* called ex-
tiftrly; and they authorized them ; and
brdingly they examined the witnesses upon
i to what they could say, — ^Is to the Xst
n, it was remembered ,' that lately, in a
' Mr. Charles Lindsay minister at Co-
I v^^w^ ftgainst the laird of Cunnin^iamhead,
MMCg»rd Mr. Charles had taken thedeclnra'
IBbofnome witnesses under their hand, bear*
Wff^at they would say the same if they were
^Jlon oath, the lords had found that he eonld
not adduce these as witnesses for him, * nU pro-
* ditiouem testiiuonii," by the said pre-eu;;uged
declaratiMi taken by a private person^ without
may wamni ; and Duty marks a decision on
'* The old gentleman'* says Crookshank,
I 2, p- 337, ** died soon alter, and probably
I death was h(3ait«iued by th« hardships he
people, such jis thir witnesses are, unless tlie_
liad redacted the pn-cisc words uttereil into
writing tmmediately after they heard Ihem^
and lawyers make a great difference between i
words that of their own nature tend to tb#'
coniniission of a crime, antl such as * non can-'
*■ sam butoccasronemtantum detinqncndi prue*
* bent;* whereof I^Iattha;us, Tit. de Ires* ma*
jertale, cap. 2. num. 11. gives a pregnant in-
stance, hi centurione qu6datn. ^. * Nudum con*
^ sdium,' untesfi it be ' cumin structione aliqiii '
is not art and part, but still bare words ; lor Ce
nock neither ia$triK;(«4 tbcto with money^
979Q STATE TRIALS, 86 Charlbs
arinf, atnrounitioii, nor with advice how to
manage the war, where to fall on first, what
passes, hridgcs ur forts to secure ; which law-
yers call * ordinatio/tractatio' or * apparatus ad
* helium ;' without doin^f of which tlie panDel
cannot be repute a contriver of the rel>ellion,
ao as to be drawn under the exception made in
the act of indemnity in July 1679 ; and of this
* nudum consilium sine instructionr/ see Viun.
ad § 2 1 . institut. de obligat. ex delicto. — Kir
George Lockhart (who was joined with the
king's advocate in this cause,) argued ; that
these rebels who came out of Galloway, after
the relfels were up, to fortify and assist the re-
bellion, were as guilty of contriving as they
who b^an it in Lanerk shire ; for it was < m
* cursu,* and had ^ tiactum futnri temporis ;'
and thatcontriving io not * actus momentaneus/
nor done only ' in ictu oculi ;' and in construc-
tion of law * mandans homicidium vel aliud de-
* lictum, eadem piena tenetur qilft mandatarius.'
** And it lieing aJledgeil for the paiiuel, that
this part of the iil>el was not relevant, that
Cesnock spoke these or the like words, this
alternative being too general, and the king's
advocate contending llint he was not bound to
•ondescend what the like words uttertnl hy
Cesoock wei-e ; it was replied. That this were
to make every common fellow, who is adduced
to be a witness, or an assizer, to judge what
words are synonymous and of an equi|K>llent
signification, though that be a theme which
h^ troubled the greatest criticks. And whereas
the king*8 advocate endeavoured to elide the
ISGth act 12th pari. Junies 6. ; and that he
needs not say thii- partii's were denounced, W-
causc Cesiiuck had a nuirc certain knowledge
•ut of their own mouth, of their l»eiiig rebds,
than any such deuuiiciation cuiild have given.
It is replied. Where the law has fixed on a
solemnity, private knowledge docs not supply
it ; ns we see in the case of intimations oi ns*-
sigiistions, and niuiiy titherii ; *■ et id lacituni
' Kcimus quod do jure sciinuK ;' uiul tiieir say-
iu«j;, that they came Ihun Tow corse park rould
not make him instantly tstcrcni them rt'liils,
liceiug tliiy uiii^ht have been there by restraint,
or upon otiicr necessary ex<:iisuljle oceai^ion,
or might huve cMuiie uuuy in ohctiience to the
couuciPs procluniation, coinniandiiig these re-
bels to lay douu their arms ; so that their say-
ing that they eame from ihat army does no-
ways take off the act of f*arliaiiient above cited.
And whereas his inujcsty's advocate alled<^^e((,
that the defence, olieniig to prove that tiiu
panncl was ulibif is not relc\ a:it ; Imo. Ueeau.se
It is contrary to the libt>i, and may infer [ler-
jury a$rninst*liis \«ime^rs. i^do, l^he diatunt <-
uf the two places, viz. the bridge of G'J.>«l():i
ftyd Cesnock's houses (where he is alledg^ d n
have been all that da\) is not so great hut !•<■
might in a short time have been in either at'
fijeni, l>eing but half a utile: It is replied, tlmr
in many cases, defences contrary to the liliel
are sustained and found relevant ; and it is im-
possible in law that it can be othenvise; for in
* ^ri caiiu pro rco est i%s[ioudcndtiiu.' As lor
II. l6S4.^Procerdingi ugmui [980
instance, a man is convened ' pro homicidiode-
* liberato ;' he founds his defence and exculpa-
tion, that either he killed in self-defence, or, it
was a casnal homicide, aoconling to the late
act of parliament, in 1661 . This defence, tho'
contrary to the Ubel, has, by the laws of all
the Christian world, ever been received and
admitted. To the 2d, Whau-ver be the dis-
tance of place, this is ^ propositio aeternie veri-
' tatis;' Cesnock was in his own house all thit
day of June 1679, when Crawfurd, IngraiD,
and Ferguson past by the bridge of Gauton ;
crgOy he was not then at Galston bridge ; aiid
which consequence is so deeply rooted in na-
ture, that it IS ' pnesumptio joris et de jure;'
and till we renoimce both our sense and reason,
no conviction can persuade us of the oontniy ;
and this demonstration is confirmed by no k»
authority than the testimony of an angel, wbo
argues the disciples into the belief of a resor*
rection by this enthymeme, * surrexit Dooa-
* nus, est alibi, etgo non est hie ;' and yet bat
our feteviour was at no great distance ; for * na>
* gis et minus non variant speciera' io soHi
cases ; and it is as infallibly true, that Censck
was not at the bridge of GaUton, if he can pnnt
he was at his own house that individual boor ht
is ailedged to have been at the bridge, as if I
should prove that he could not be that day it
Galston, because he was at Rome or Paris, or
1000 miles distant from it ; and there can beoa
fallacy nor abuse here, whereby rebels eta
esca|)e ; for his majesty 's advocata condesoead*
ing on the precise day, it is positively ofleitd to
lie proven tnat, all that ilay, he waa'in his owi
house ; and that the pursuer is oblige<l to coo-
tlesceud on the day of the committing the
crime, if tlie panucl requires him to do it, is a
]>rinciple aciiuicsceil in by the common leoti-
mciits of all criminal lawyers. But sir Geof]^
1^'khart denied that he was bound to do it * m
' criniine majestntis;' and required * impon-
I * biiitas natune/ that they could be in both
I places ill one da V, to make a relevant atiM;
I and thai in Mr. WiUiam Sfmier^eirs case, and
I McNeill of l^ara's, &c. The lords found tea
j miles not a sufficient dist<ince to infer an oHki
I ** Tliejustices having advisetl the debate,thef
repellrtl the haill defences, and found theworal
libelled to have been s)M>ken by Cesnock to be
such treasonable counsel as is not nuiaDttobe
pardoned or included in his majesty*s indcs-
iiity ; and particularly repelled the defence iC
(liibi, as it was qualified and circumstantiilBd,
the distance Ivetween the two places bein^lM^
small *, and sustained the second additMOil
I libel, aliout Cesnock*s harbouring and rcgctliii|
j rebels on his lands, as an aggravation oolyn
I ilie first libel. This interlocutor did DOt^P"*
i without sonic heat amontr ^he justices. Tbtf
- a bill \vas given in for the paunel, desiring
j siuce his majesty wus the l)est interpreler oi
his meaning in making that indemnity, thit
I the interlocutor might he stopped till they coa*
Kultc<l the prince, conform to the appointoic^
of 1. 9, and 1. 12. Cod. de legib. iiut itatf
refiissd.
H] STATE TRIAJ-S, $6 Chahles 1L i6M^Sir Hu^k CnmpbelL [Q8A
and lo the Euthor« cited, \m opponeH a lawyct
(whose uutlioriiy in crinmiaUy»eJcie<flo notit
ortheui), riz, Jiilnis Clarus, § tinul. ijuiest. 24,
who was clear wi the ptunt ; and 8uti»ra Ro-
herli, inmtionni^ ' iiialevo!o8 parli/ must be
understooil * habihter* in icnniuis juris/ o*' •
mortal iimJtT deuce ; an*! the VTords spoke vferc
only iu |»asJMT»n, awi not a peruuinent hatrtd ;
and * out o» hell* may sigmfy, proiriding: the
revenge Im; not by uriJuwfu! means; and In-
i^raui ivas content to -purge himself of any ma-
lice : arid it is uiore ilian three year* suite ihcy
are alleg^ed tu have betn spoke, and !»o may
justly be presumed lo have been now dt^tsUd
and Ajrj^ot ; * eL dissimulatione et recoucdrntioue
* l^\vH mjuriae verbales fieicile tolluntur.' To
the 5th, bubornaUun non rclcrat, unlrts the
pursuers, or ^oineotlveni having interest in ihe
cause, were the suborners; which llugti Wal-
lace was nfjt. 2dM, They must sav tht-* subor-
uation took effect; for atieiBpiing- to do it,
thoogh it may ifiie ground to puiiish tlic at-
tempted yet * non rekvat' to cai.t the wiiues«,
e8|iecially where it hi only an attempt to bribe
another witness in the cau^e, but not thi^nrnv
adiluced. Vet ^lascarduti, »occ Suboniatn*
condus. U4?, makes even that a jfreut pie-
sumption. — itud, at that rate, paniiel'*, of pur-
pose to set aside wilne*st.^, may cause offer
ihtin money by their IVjeuds: aim that etidea-
vours used "to son re h aud find out nimesHcs
ai^^ainst ivbeU, and to draw out of then* \vhat
they can say, (they bcinfr in the w est coinitry
most avevf^e in discoverintj theSe things) tniTsI
not be called eorruiition, smng wiihom aueh"
prudent methods they shall never tiod uitJ
Reuses, 3tiu, 8ubonmtiou ui ijenintJ * nor
* relevat,' unless the nn;inti!y ot' money orothe
fl^ood deetl be condescende<i on^ that it may ap
pear to citceed the witncss*s ejcpenecs, or hid
damagfc, * e,\ opcris umi^jsi'*,* by bis aUcudonceJ
both w bich may be lawf uUy remunerat*- to wit-?
oesses wilhout*incurrin«; the nota of bribery.
" Re|died lor the panncl, That the first thtH
objecti(»ns are conjoined, * ut quae non prosuw
* sinj-^ula multa juvcnt.* As to the 4th, j
mortal hatred may arise from a very slende
ground, and a pimclilio of lionotir ; aufl we see
daily fur a cnflf or a lie combats fou»j;ht, anil
sJau»fhter committed ; and ttinugh thir resent-
ment* do not ortcu possess mean people'*
breasts, yet sometfmes ibey do ; and ' infor-.
mutive' we condescend (though not bound toj
do it) upon the cause of Ingram's malic
a^fainst Cesnock^ because Ing^i-am having bcf
one \\ ilson^ who died of it within ei|fht weeks|
Cesnock liy a letter delated biro to the sberif
of .4yr, w'heixjup^in Inp'am vowed biru thi/|
mischief; and the Icnj^ih of time d*)cs not so/l
jiite nor induce oblivioo in revenjftfu! men*'|
To the 5lh, ' Nou refcrt* who corru|ils ; an<|j
it is relevant, that any from Cesnock offered'
to debauch them. Suo, The very attemplio|
(o corrupt a judge or a witue«sis unlawful, and
leaves a siis^iidon of impresiion- 3tio, It wcrt
impossible ever to ca«t a witness on suboriii*!
tioD, if the precise sum beboired to be cointQ^
, The witnesses being called, it was objected
I Ingram, tmo. ' Prod ide rat teslimo-
i^* because both major While a.ml the
_'» advocate had exammed him, and he had
caled to them what he had to say: aod
mg-h the jastices are impowered to examine
" re hand, yet even they must have, by the
_*s letter (recordeil xiiprtif Btli Jan, 1663),
l^mrrand from the privy council ; and otbei-s
' not do it at alL 2 do, '* Est sodua tri minis,'
* Est vinculatus et carceratu?,' belug kept
ioner in Edinburgh castle. Vid. 8tat. 2.
cap. ^4, * de hi*i (jui probibentur testi-
m dicere.^ 41 o^ U i« «»f}ered to be
be be^LTS L'esnoLk art enmity and
and the foresaid statute makes it
to cast one fit>m wiine»«mg, that he
oydk\ olus paiii ;' and all lawyers make
_ limtr^du:* a good exception ; even though
tbe witness were ^ iuarticulo morlis, vel nuper
' jiumpseratsiicratissimau) euchaiistiam/ Thus
famous criminalist l^^arinacius, lit. 0, de
it. qutest. 53, lays it down as hts positive
Igment, and cites*lavvyers for it, * quod etiam
tahbus caJiibus non est ei cretleudum^
m Dou omnis moriens eat jonnnes Bap-
isJa/ And BouritiuB, in his Knchiridum
ionmu pro Capttvis, sayn, * iniiaicus
Don sit capttalis a ti'stimonio repet-
'I etiam in critninibus exceptis, quale
majestatis;' and Hieron Gigas de
hesHi majestut. says the same. And
this Ingram threatened he should do Cesnock
ill turn, if it were out of helL 5io, The said
m caunot be admitted, because it is of-
d to be proven he was skiborued by Hugh
illftce chamberlain to sir Will jam Wallace
Cmgie, and he himself was endeavouring to
\g over and practise on Adam Millar to
le to Edinburgh, and depone as he did ;
gave this reason of it, that they owed
Cv^iiock no tavoiir ; bei^ause if lie and others
like him had come out and lielped them at
Bothwel-bridge, they had not been defeated as
tbey were.
Answered to the 1st; It was no * proditio
* t«stimonii* lor them to tell what they know,
«r to reveal the truths unless tliey bad inifti-
gated the plea, ami had informed m order to
mn accusation, that they might bear testimony ;
and their deponing w as not voluntary, but by
fuhhc authority ; and sir John Nisbet, wheu
ing's advocate, was in use previously lo ex*
acome ^ itnc'ssc^ ; aud their former dc|Hisilions
fhall be cancelled aiid torn. And which being
locordingly done by the king^s advocate, itk
fmetM^c <A' the conrt^ it contributed to Ces-
L^iCk's eacapiog at this time, lo the id,
^Hocius criminis* is no objection iu treason,
^^kn any person almost is a habile witness,
^^^Hb 3d, *^ Vincutatus^ is wfien one is in pn-
^KlKa crime, but not where they are only in
custody, and sequestrate, to ef ite corruption
from the paoners influence. To the 4th,
* Non relevat,* unless it w ere * luimicitia. capi-
* talis,' and that the ground of it were con-
^fmseoded on, aod proven to be a mortal feid ;
983] STATE TRIALS, 36 Charlss II. l6^4^^Proeeeding» againU [984
scended on, for that only arises from the pro-
bation ; and the offering of a dollar to a poor
man is as tempting* and great a hribe as 100
dollars to a rich man ; and if Ingram got
money, he must tell some other cause where-
fore he got it.
" The Criminal Lords, after a long debate
among themselves, did repel the three first ob-
jections made agninst Ingram ; and before an-
swer to the two last, viz. the enmity, and su-
bornation, (the fii-st act before ans^vcr, 1 think,
that was made in our Criminal Court, where
always the relevancy must be discussed,) de-
clared, that they would hear our witnesses fur
the panncl, to prove these two last objections,
if tlieV spoke probable and consistent things,
or if they were but seduced to help Cesnork at
this dea(l-lift, (hh they jealoused,) and only to
disparage the king's oidrnces : — And though
at tirst they ajfrotd to cxiimine them on oath,
yet they woulu now only hear their declara-
tions, not upon oath ; 'and, albeit all pains
were taken to expiscate ciicumstanires, to cause
them vary and titubate, yet Tlerrios and Goudy
declared positively, they heard Ingram threaten
Ccsnock an ill turn, if it wore out of hell :
but being examined icparalitHy in regard they
discord^ in some circum.stances that were not
material to the dictum Ustis, the main ]mrt of
the testimony, as the hour of the day, and place
of the house where they heard it, &c. The
Justice-general rejected them ; though Mas-
card, conclus. 1 180 Toce Plui-alitas, gives an
easy rule for reconciling such seeming discre-
pances iyiUr tciUs. Then the witnesses, about
the subornation, were adduced, who proved
against Hugh Wallace, Cragie's chanil>erlain,
iiis drinking with them (ill tbey wen* drunk,
with other sneaking practices, but nothing of
bribery directly ; because the justices would
neither grant a safe conduct to bring in a fiijji-
tivc rebel, viz. one Adam I^iiller, to be a wit-
iiess for the panncl, the Court never having
allowe<l that practice ; nor permit witnesses to
be examined anent tampering'' with the said
Adum, he beinr^; none of the witnesses adduced
for the king : and it being complained, that the
guards drunk with thetv^-u wiUiessesled against
Ccsnock ; and though sometimes in vino Ve-
ritas^ yet men are \ery unfit to dipono when
drunk ; it was denied ^ that any* such thing
was allowt d ; and prohibit to be done for the
future. And the witnesses were onlained to
be kept separate, that tht-y might not compare
notes tdfCi'thtr, nor know* what another said.
I remember i^Iasucrius recpiins, ' ut trst**s de-
* IHuianl j<jnni.* IIow-mt, alir r al! ilii-. pre-
vious trial taktn upon tin* two o1»j..h tims against
Ingram and (.'rawlurd, oiinaiu'c :in<l corrup-
tion, the justices ton nd no so ttiri.-nt niattrr to
repel them ; and tlu retbre orti.iined Iheui to
bo i*eceived. — Cesnock's advocates pnitestul
for a reprobator of their testimonies, which U
not usual in criminals.
<< This was now about 11 o'clock at night,
and when the king\ advocate and that party
thought all was ^&1 and sure, the DivineProri-
dence, which oTerrules all from abore, unatched
the prey out of their teeth at this time : for the
witnesses, who were so well prepared, and hid
so oft renewed their lesson, and gcit it incul-
cated, (having twice deponed on the individual
specific expressions that Cesnock used totlieni,
to encourage them to go back to the" rebel
army,) when it came to the push, by a roin-
culous consternation, both litgram aud Craw-
furd, tlid not remember that Ccsnock had any
such expressions to them, as were libelled;
either reproving them for leavin;; the Wot-
hmd army, or bidding them, return, and thit
ere long they should not want help nor headi,
Sec. Upon this the mobile in the Court gave a
IP'eat shout ; at which the king's advocate airf
justice-general stormed, and said these were
very disloyal and imlecent acclamations ; ifae
like whereof had never been seen in Scottand,
but was Shailsbury's way in England in car-
rying on his business witlitheignoi-amus iones,
and to dash, tenity, and confound the king's
evidences and witnesses. The king's advo-
cate pressing Ingram twice or thrice to giv&
categoric answers to the expressions, Alex*
ander Nisbet of Craigintinny, sir Patric Maj-
well of Sprinkell, S<imervell of Dram, and
others of the assize, complained wbjr lucb
pains should be taken to wring and clicite a
testimony, when he had so often already told
that he did not remember the exprcssKHM ; and
they being reprove<l for meildhng too much,
boldly replied, that the probation conc«n«I
them and tlieir ccuscienrcs, to see it was fcir
and equal. Ccsnock himself objected agaiut
Daniel CrawfunI, that his name \%a8 not givea
him up in the list of the witnisses, confonn to
the last article of the act of parhameot rcg^u-
lating the Ju.«tire Coiirt in 1C72, but one
Daniol Carmichrll. Yet he was received;
because the king's advocate had thivatened ia
the beginning to ctmtinue the diet against
Cesnock for two weeks, if he did not pi«
from that objection, which had only happened
through mistake ; in which case, all Cesnock'J
' witnesses, for proving his exculpation, would
have gone home, he having detained them »
long in the town from their labouring and
sowing, with a great dcMil of difficulty andex-
1 iK»nce~; and thfret'ore Cesnock 's lawj v\ s passed
' from it. But he alledgctl, that their renan-
Ciation of it could not prejudge him ; yet lie
could not reclaim, for they had his warrant frr
it. The king's advocate* a Hedged against se-
veral of CtisnocU's witm sses, that they could
not l»e receive«l ; hecau^ie either they were an*
givi^n him in list debito tanporr, or wereCes-
nork's tenants, or wero not riufiit designed, SiC
—When his own witnessc-s lailid, he tell into a
great impatience, alled«^ing that this would
encourage all rebellion hereafter ; for the king
and the ct»untry shouM never get vitncswsW
prove treason in the West ; because the Wfft-
land people thought it no sin u)ion oath to
conceal the discovery of treason. Although
in law, his two witnesses could not be o^^*
token on perjury, because their former depH
f\ STATE TRIALS* 36 Chahles Ih 1684.— Str Hugh CamphelU [D86
kio^^H advT>c9te threttened he would ptirme
C . ' iny and kOine of the assizers, as
riot in cwrying" themstilve* tnmuU
f the irini, by ili^^tf*' • ■ '^^ *m%xi^
.rj; niid confoiiii'! t^vi*
c..^,, Uat thfiy deny &1U tiiey
exceeded their duty, i ment
drove them t<» qreat ex^i j was <
reported, that Perth and the 'ireaaiirer-denirte |
his brother had assured the Witig^« and duchess
of Fortsinoutli, that they had sumcient i^ounds
wlu-reon to forfeit CesiKJck, aod that cme ofl
her 9ons by the kinigr was to gel the ^ilt of bk
forrfHture ^ n»tl thpv did nottbiixk that he wai
i! li in favours gf hitMQ.
' if DurabartoQ was to g«t I
a part <>! Ills iv>nein;re.
** On the Sd April 1G84, they brought down
the two wiinesseH, Crawfurd aud Jngraui^ to
a priry council held lu tlie Ahlmy, aud there
they abode positiirely at what they tireldejioned
of his g-uilt ; and bein^ asked why they resiled
al the UaiT» answered, lb at tiiey were dashed,
confounded and nipped, every one murmtiriTi^
in their ear, »' what, will you by your syvear-
iiiff take the honest old raa'n*s Hie ?*' This dc*
wtxm cancelled ; and it was declared,
hem m frecdoru, that whatever they
r, llie (ifit should iieTer tutet thenif yet
oH, and before God, tliey are fjruilty of
K^^'ury, and deijerveto be declared infa-
t vvf n\ t)i(''}r two contradictory de-
is < * ib»e. Cesnock said
lllngf. '■ . ^ fed to theijtagin£r him;
Isimame of Carophetlf for his chief
tait«. $4 His ^ersuasifin, as being
i strict Presbyterian, 3. his estate:
'^'*last, it na<* alltd*^d they were mi*-
" was denuded of tlie fee
I ia taioujs of his eldest
' cu5iitti* I ni marnavji% a»d which
liriiie<l lun^ liefuie Liiuttuig the trea-
it was obtaerfed both Uie
t against him.
^Mfse having inclosed near one
I the morning, ihey in a short time
i'\ hrnuilf hiiTWHit not tfuiliy,
iim. Yet he
frd ^ ihe Duke of
t % vvry bad onimon of him, and sns-
i was upon tlie late English tanatic
li broke out m June )(>B3 ; on the
^whei'eof, he had been apprehended,
risoncd at London, and he, the lord
sir Johti Cocliruoe^ *kc. were branded
^^nn to LiKuloii to jtiiii with
^t ; but as tliey couhl make
vi un^ uut upon Ce«no<!k, BO it was
> mutb as tone bed or insert in his crimi*
»anag^ruVHlionor presutnjrtion to
creililiibty of his (^uklt in uttering*
ti-tnilnit'i ' am] reaUv they who knew
111 a man he was^ were
, for thry 001 dd never
1 belief, that so foolish
; could escane him, as
trtii*t i lie I to ihree mean
cidenfnH; ^^h way ; whereas
[iad Ih could'have done
iy mu \ ice another way.
i^iciuns of hiii
I some other
il ui'Uiin iuin ^triMuitcr,
"' lasted longer than Argyle*s,
ii- » -nes BL tellers, or any
ition ; for it took up a
..,..uoons. It was not so
at the persons with whom
v^ IiLive spoke, at Galston
n in tne rebelfiOD ; and
' ceil no probation aneot
1 in the second addi*
sed from the thirl in-
nt ' irig bis tenants in Bah
in 'lid, and his being at
SJ ' > k |)betl a rel>el, wbo
r Irvine. They
^rhi tlie two
, out of the
M. .il MoTolbooai of
-ed C'e8U0€k*s friends
■plf^ .; u go back frsm what
m dnrij dt.'|imHl Ibnnerly. The
i;nr<ijft 1*
wbo h
claration was given after they were kept five
days in the irohs. Then the council gave order
to raise a libel against Akxander Nisliet of
Cnugintinny, sir Fatj '* V ' «keM^
and 8i>roerveil ot^Dru .ert,
for t lie ir misbehaviour ;, mm nAinvu u cuiuiuittee
to revise the debate made by Cesnock's lawyers^
and to excerpt if there were any treasonable,
imiocent or dangerous expressions in it ; and
the justiee-flfeneral caused rajfe out the latter
part of the interlocutor suslnining the aeooiid
additional libel ancnthis reseUing rebels, as an
Aggravation ; aud did insert a declaration of
the kiug^'s advocate's just before the interlo*
ciitor, that he ^mKsed from the second and third
additional indictments, only * pro bwo et tem-
* pore.' This alteration was said to be mwie
cowtrary to whkt was truly done ; tliat Ibej
might yet raise a new indictment uguinst Cei^
nock for these things, as if it had luit t»Ma
triiil already ; lo the effect, by tliis or some
other meaus, they may get him yet forfeited,
if possible.
** It was expected that sir George Lockbart,
and the king*s advocate should have debuted
this point, tlmt the pannel s running to the
act of indemnity was an acknowledapng of the
crime, like the using a private remission ; but
it would seem they did not think ibis argu-
ment ttmable in law, and so did not urge it ;
and the king's advocate's own opinion is con-
trary, both in his Ciiminals and in his Ina^i-
tutious/^
<* June 4, 16S4. At Privy Council, Sir Patrick
Maxwell of Sprinkell, Alejtander Ni»bct of
Cr.tigintinny, and Hugh Somervell of Druni»
are pui^ucd by his miij city's advocate for a
riot, lu disturbing and interrupting the court in
Cesnock^s trial, and for coufounding and dash*
tng the witneMea in their deponing, and making
k
STATE TRIAL?, 36 Charles II. ICS4 — Pm»€dwgi^gainM [088
In-en over artiTet 'oi' somr of Ci«aiDck's viu
uesset de|»oiiecJ that he hotf dninl m iitt tWiti*
given one of Uirni a )r , ud
« noUe and confusion in the courf^ contmry lo
llir hunowr ami graviiy tlitifoof, Aliodged for
tlien>t thai &Rsiitet^aiejtni;;es to th« |)roJ>ation ;
and hy the 90t!i nndpibt acts of ^tarhument
15U7,' * lid informandurn suara coniicientiam,'
they may ask qaestions at the witnessc^t or
lortJs, for clearing dubious points ; and aJI
thev did was, the tvituesscs hnring' twice or
Ihrtce upon oath declared that they had no
more t«i i»ay» and remembered no mort, they
Ihought it. was not fit to fire^ or ur^^e them
ROy tiirth(*r. The king's advocate alledgred,
|he witQCiisiesonly oppose<laud demurred a h'ttJe,
being^daslted ; and tu that case the Justice Ge-
neral fDiLfht very lawfully interrogate them
further, what they knew more ; and that these
West-land witnesses are loth to tell tlie truUi
a^inst rebels^ till tliey be pressed to it ; and
tlie a£st'zers exceeded their duty in olfering^
to Mtup this expiscation, and attempting to teach
the justioos their duty ; and they gave occasion
to an irrtY^I^^ ^^d tumultuary noise that was
rnised in ihe ctiurt. The council repelled the
defences ; and ailniitted the libel to prohatiou ;
and the criminal lords were led to l>e u'jtne«ises
tif fij at tvhich tliey were very ill pleasetl.
Alt tbiii was done tM paliiale I he atlVotii ihey
bad auffi^red by the witneswu» miscairy*
tug' ; and some' said, If a^sLzers were thus
UMfJ* it would make their odice very trouble*
some, and rery few woitid sorve in llut c«pa-
<ity,"
" April 17, 1684. Ilnerh Wallace, servitor to
air Williiim Walhico of €iiigie» pursues Hogli
Camphellt Cesnock's sou, and Mr» Ilugfb Ar-
chibald Ao^ent, for calumny and defaiualion of
hinriv in alledg^ng^ lie had tatn|iercd to coirunt
and seiJuce the witnesses agaiusi CesnocL
The defence by way of recnuvenlion w as, lar.
That ibe coudescenriing; on hitn in the criminal
coitrt as the practicer of thu u itnesscs was ne-
cessary, being' foi-ced thereto by the Justice Ge-
neral, who re|>elled the objections of suboma*
tion otherwise propfined in general. 2dly.
They bad proktble grouudi to tlitnk he had
pumped what they cuuld a^y
and ' ipiievis prouabilis cauf^a 4.^«.;iisdi a ca-
• lumoia,' The lordf found both the libci and
reconvention relevant; and adniiticdbotbto
probation/*
♦* Au^ist 6t 1685, Camphel of Cesn^K*,
elder and younger, arc IJbei^t*,* out of prr»oo,«a
a remission by his majesty far their Urcs* ool^,
but nothing^ reserved lo ihem or their crediimi
of their fortunes ; only they bad Queen«bm
the commissioner's promise of suitic amail u*
lowance out of their estate/*
«« October 4, 1635. Tliere airired two l«tl«i
from the King to his privy ooiindlf llie ta
anent the two Cesnocks, ordaining Ibeni (tiMngh
liberate) lo lie reimprisoni d in the Bu^^vOotwiiiL'
standmg iho remission given tbein, v* hich tiif
only l'"*r iheir life : because sir John Corbmn
liuJ deponed on their deep gtiilt, though ihry
with j^reat confidence always d '
Quitntur^ Ilow far the remission shi»
them from i>erpetual im prison Bient« t*iu wmi
no new crhue. ^hey were rLhcraiir* upoit ^fi^
ther letter fiy)m his Majesty iu January 160Si^
" By the written Minutes before tne of tliii
Sederunt^ I find that Cesnock's bill far csr^d-
nation, was this day, May 1, [i6Uri] heiore ib«
J»rds of the *\i tides, cousiiitiu^ of his «^
teuccs, that he was tjiihi, that Mich as he bad
conversed with who were at Both well, ka^
taken tbeboml, that his case waa ' reshacteoiB
judirala,* and an enumeration of the step* of
li]$^ loyalty, but the sliort hints befotv me iki
ncjt bwu what was done abf»ut it* We sludi
find him atlerwards forfeited." 2 Wodrow
I have not been able to discover any rvoof4
uf this proceeding before the Lords of Ariick&t {
STATE rni MA 5l?riiAitMS ri. leai.— rAe E. 0/ Loudoun andotheig. [990
Proceedings against James Earl of Loudoun, Georoe Lord
l^ltLViLLK, Sir John Cochuane, of Ochiltree, and Jons
CociiKiVfiE, his Son, fur Treason: SGChaulesIL a. d- 1084.
[Now first printed from the Books of Privy Council and Re-
cords of JuKticiary at Kdinburglh]
811 cli a competent lyroe for hh appearance^ ns
they bb&II think 6tt.
Apuil Eclinburgum, octavo die AprilJt, 16B4>
Sedtrunit
7%
B £4iiibu4^im,
piinwdieApnti*! 1684.
m
ficrunt^
Hetloi
Belcnrrea.
Bdmirs.
DuadoivalJ.
Kw.
Km to re.
muter Pri»ci(ia).
Lei-ijigsronn,
M^ll.
B'whop of Edinburgh,
^HK
Kinuaird.
^^K
tTctieral Daly ell.
^^^V
President of Session,
^^V
Tiiensurer Depnt.
^^^»
Kcyrtler,
^B|b
A'lvi»cat.
Kginr.
Jaslice Clerk. *
K"
Casttehill
Brise*
Oosfoord.
K^^ft*
Sir George Monro.
Kir*
Claverhouse,
i Lords of hh Mti}esiie9 privie cottnctll
kmifliiS^red a Petition, presented by the
'titin, rcpreiftntinq', that he being
pp^r lietiire the lords commtii*
jttsticiary» the mi^Ut tif Apryle in-
iw^T for licvemll uUeadt^cti cryraes
in I he dittay. But \w\n[r furth of
^dmne^ th« tyine of the citatione, and
L«nd in a vary uickly and distrest condi-
1 at(i)|rether unahle to tnif«U as ia in*
cerlificats, proilucwt upon scnill
ttce^ he cannot appear at the dyet
at his tnn(»cency. And therfore,
• (vuppheAting-, that the dyet mt^ht he
r continued to some cornpettnt tyme,
' be in a ruoJitlon lo oppcnr. 'JTh-
doc referr it to the lord^ coinnjU-
o4 justiciary, to grant the tupplicant
lie JiiaUce-Cletkf as the atyte of his
krateH^ wai* nut «ri^nally one of the
%oijly clerk of the jusliee-court: the
"tin I f^f Justiciaiy, in which the
1 rk, aj one of the ftidgea
t I d, ta tluit oi Decern bcr Isl
the utvtftion of his name upon that
Liccitii to hare taken place in of>edi^nce
ivy council relative to the
»faham. '* It uniyf hoi^-
(snys Mr, Hnme,) that
iirectly to call the cierU of
,c to the bench, had met
or It least, was not re-
t 4lii|ilmaur%. I'^oi in the sede*
Tllie imh of J>ec< s there if
a weoond a^n <i i, dated the
rthstHKiotiif which, alt«.r itirtcliiig th#
Chancellor,
Cla^lfuiv.
Theasurer Principal «
I L"! mil ton,
^[ontto»e»
Krro!,
MarisBhalK
Linlttbgow.
Perth.
I^anmnlr.
Twecddatc.
Belcarres.
Kintour,
IJvincrstouii.
Kinnuird.
Gfueral Dniydf.
President of Sesmw.
Theasurer Deput
Register,
Adrocat.
Justice Clerk.
Castlehill.
Gosfm>rd.
Sir George Moord.
Clarerhouse.
The lionla of his Majesties privre councill,
haTeingcnn^idereJ une Addre^semade by Jamd"
earle of Loudoun, suppUcating-, That as the
i'ouncill upon a former j»eiitioue, had for tha
n:*a?iotni therein contained^ reromnicnded to tha
lords commisBionei-s i>f justiciary to continue
the dyet in the crimiuall process ai^aitint iljc pe-
titioner, so ordor mi|jht Utt^ranted for stopping^
any deuuncialiou against l^tm for not getiin^^
caotiotie, for appearance for some competent
tymci thut he may be in a condition hi provide
a" cautioner, have thought fitt heirby of new
aj^in to recommend to the saiJs lords com^
uiisaiotierH of jusiliciary, to gire onler tor 5tf»p-
pin^ any deuuuciaiion a^^^ant^t the supplicant,
fur not j»:L'ttiinj;^ ofcautione ^br appearance for
snm«' rompetcnl time, thbt he umy l>e in a
conditioue to proviile a cantioucrf he heinjf now
sick and furth of the kingdomc, as waE verified
justice and hia assessors to do in the case of th«
&atd Geotve Gmhain aecortlin^ in law, pro-
ceeds as follows; ^^ And fardir declalreSf That
the Lord Jcuticc-Clerk i^ ane of the Jmlg^es of
tlje J iiatice Coy rt| and has powar to sitt ancfyoatt
llierein, and that the said assessors bate, lyk«
a^ I he cotuicil giire powar, authority, and com*
miss tone to them to meet, «itt, voutt, and de-
t4jrmine with the itaid Justice Clerk and Justice
Oennre in the s^id niallir.^' In this obliqii«
and irrc|Tular manner, did the justice clerk en-
larffc, or transform the charter of his office;
and obtain a srat and presidency in the court ;
which were af^eovardi confirmed to him, upott
the new cstablialmient of the present judica*
ture in t07 1** ^^ tlie History of the Court
ol th« JuBtiQtar in tUo finti Volume of Hfr
Uume's Cooijiieniarieti Chap. t.
991J STATE TRIALS. 3(5 Ciiaries U. l6a4.~Pr«>«e^«Mr* ag^injii \m
I
by certifiaiites produced upon «auU aud ct)ti-
The lonis of Jus iDnje!!iefi |iri%'ie councUl
haveing' considered a PetiUfine pres€nt4.«d by
George lord Melville, represenljng, tlint he Ij€-
iae dtfd lo ap|i«;ar biifore the lords com*
miattoners of justicmryT thts prei»ent d&y to
soswe&r for overall alleudge^l crymes, but be»
jn|^ furtb of ilie kiir^dome, (he tyme of tlpe
citatione, and yet 1^^ ^ud in a very sickly con-
ditione, and altogetlier unable to truTcU with-
out Dianifest hazard of hv& life, as is instructed
by certi6i'«ts uuder the hands of phisitians
from Rotterdam, produced upon sou]l and
conscience^ he cannot compear at this dyct to
▼indicate his innocency. And therefore, hum-
blie supplicating, that the dyet might b<? de-
serted or continued to »ofne competent tyme,
that he may he in a eouditioti to appt^ar, aud
diat viarraod might be given for (Stopping any
denunciattooe against him, for not getting of
caution for appearance for such a tyme a$ he
uuiy be in a condiiione to provide a caulionen
The saids lonls doc recommend to the lords
coromissiinera of justiciary, to continue iJie
said dyet for some competent tyme^ that the
j^etiKoncr may be in a conditione to ap(>eur»
and to giTe order for stopping of any deaum-
dalione against him, for not gelling o'fcautione
for aj^pearaoce to some dyet, that bo may be
Iio a cooditioD to provide a cautioner.
Gi
Cr
CUBU JusTTCiARLE, S. D. X. Regis tcnta in
jtrsetorio liurgi rfe F.diiiburgE, octavo die
tnensis Aprilis, auno mille^imo sexcco-
lesimo octuageaimo r|uarto» per nobilem
et potent em Comitcmf Jacobum Comi-
tem d^ Perth, Justiciarium Gcncmlem, et
honorabiles virosI>[>niinos Jacobum Foulis
de CoHiogtoune, JuKlictarite Clericum,
Johannem Lockart de Castlebill, Oavi-
dem Balfour de Forret^ Rogerum Hog
tie HarcaiTis^ Alcxandrum iSton de Pit-
iDedden^ et Patriciora Lyon de Cars*,*
Commissionarios Ju!Sticiaritedicti 8. D« N.
Regis.
Curia legitime afBrmata.
The said day aneut our 8overeigne Lord's
Criminail Letters of Treuaou, raided » used and
erecute at the instance ot sir George M'&en-
«ic of Rosehaughi his majcfdies Advocat, (or
hta-bigbuesi ii)treiit against James earle of l^u*
doun. George lord Metvdle, sir John Ctichran,
of OdiiHreef aud John Cuchron, of Watersyde,
bia aoqc, maken mention, that whf*r notWith-
Standing be the third act of the lirM. parliament
l»f king James ibe first, and thretty aeventii
* This sir Patj'ick Lvoa of Cars^, lorrJ
fIaitei^(note B2 to Uia Catal<igueof the Lords of
|i«B«io»4to. 1167,} say« »* had been a nrofiajsor
of pbiiosopby m the U Id College of8t. Andrew 'li
and aflerwaridK admii^- depute, lie drew up
the Decisions of ilie court of sesiioii from No*
T«flab«r im2 July to 1637."
act of his s
act twdth I
aud atte huudr^iU ;iii
parliament king Jam*
.t,*aiid W(lt«»nnlli
* Many of the aotient Srot« aclJi orpartia*
ment are very ootscive. Of Ibo Sd ucL ci Ibi
Isl parliament of king James lat, the title tod
enactment are as follof^s :
* That na man rebelj against tbe ki>i
* jiersane.
* Item, It is statute and ardai&fad, Ibat u
* man openlie or notourlic rrbell agmtntt tin
* ktngia person, untler the piine ol forelwi]^
^ of life, lands and gudes.^
] Q like manner tbe title and ennclmmt f^M
37th act (tbe 12th act of his second parbanifs^
is as follows:
* Receeptercsof RebeUca suld be forefiuilteiL
* Item, It is diacrr-eted and statute, thai 91
* man wilfullie suJl rt'ieipl, matnteine, w da
* favor to open aud manifest rebeUare« agtinil
* the kingis majestie, iiud tbe comtnoo kv,
* under the paineof forcfaultour.'
f It npp^rs that these references ^re nol tl^
together correct. In the c^py wf •* Tlie Li«i
and Actsof Parliament madr bv Kin^ Jiiiif !vt
and hb Royal Succe
Soodand," collected,
ray of Gh^ndack, it i> a^uiod, tliai u
parliament of king James tbe 3d, *
acts were pa.<i&etlt and none of ihem ti
towbatisheic set fortli. The l4
kingJameisGi (the 29tb of his 12tliparitaii
ii:£ intituled *^ Damuage aud Expeoces o"
suld be modified by ibe Judge's,'* and
not relate to the tiial before ua. Uts [
that the act ijttcnded in the pfpn /in><ir«
next but one of tbts same I :
king Jamcsthe 6th* It i« a» l
puiitfibment of the ret^ puns oi
rebelles. It is statute and ui '
soverame lord, with advic^^ ol his^^iea ial
present parliament : thai all fonaer lawta^ i
acts of parliament, umid of before, agiis
reoeipters of traitoures and rehelltK^ attd ]
menl of themqubiLkcontef '^ n ma
the horue, suJl be put tod aiouj
pointes. And specially quuiitr Lver<
clared traytoures, or rebel les, repairs i|
parte of this realme, ntue of our
lurdis |eii;ei» vail presume to roceipt^c
euter-commoun nith them: or to gira|
meaie, drtukc, hou^ej Imrbery or any **
comfortf under the same paine, Ibr *
are foretauited, or put lo tbe boro«
immediatiJy upon Kiiawleilge of I
iug in the bounds, that all his hienesBses i
subjects doe their exact diligence at the nt|«
maist of tlteir poller, iu acarchitt^,
taking aud apprehendmg of Ibe jiaid d4K*ll
traitoum and rebelled, and pr^^itliig «^f tlie
io justice, or jd foilovring of Ibeni qutbll tbtf
be takeD «r expelled^ and put ibtntii of i *
1
^99
IS] STATE TRIALS, 36 CHAitts XL iSU.^ihe E. of Loudoun mid othtrs.
Wmh
snd ordairtefl that no man openly nor luitqurly \
rebell aiftinst the kL^g^s person uruutKunty ur i
nsolce warr against the kiiii^'s ieidtrfs, antriUal '
wher any deetarcJ rebel Is antl traitors iej>ttjrt*j» I
in any uart of this realnie, iions t>f Km iiiajes- I
ties leidj^es shall presume ti> recepi, 8*ippiy *>r
intercomon willj them, or ^ve them aity meat,
ink^ liousci harbour, or any releitf tir com to it
■chire, and immediatdy to m^ike intimation to '
the magistrates mid pe>-j»ouLi» of power and au-
thority in tbe uixt schire : qidiilk sal) hv
baJden to do tbe like exact tliliijrexice ivjibout
delay, and sa fra f^chire to scltii^^ quhill tbey
he apprehen4«d awl broelu to justice, or ex-
pelteu and put foortk of ibe realnie. And fur-
ther, quliL-ii ever on y mauer of iraloures, re-
hetlis or mikfin^Hu men, vagabtnmdes, hap-
C»nis to repair in tbe coiintry , all bis bdnesses
iges koaMin^ tlietn, or amani^'st r[uh'>m lliev
resorl^ sail ivitb all puHsiUle ^)j«edt^ o^itilie bi^
maieftty or fiiame of his Aicrfiit cuniicell or litim
of the cliicre ptrsouy of autbority anil creUiie,
fiwelliog within tltesiiiue scUire. Tbat sick pei'-
vones (jnrif tbey be knani*u) are \% itbialhe same,
and if they be unku^iWi'n siMiawand their lakens^
and for *,vbat eause tbey pretend tbtm^dvesto be
wandenu;? atbort tbe eountry or lurking m m\y
part: under tlie [>aine, tbai tlie traytoures, re-
belles and vai^b'mudbs,uucbtt0 ha^esusteined
ia bodies or gudtlr« themselves, in cajse tbey
had b«en apprehended, prtificnted and convicted
he justice."
The acts ag-ainst treason, and rebel I ion
pulsed in the reii^'n of kin|^ James 2d of fSrot -
Imd^ are sixth parliament act 3d, (the L 4th of
his rei^n,) '* That nane rebell against tbe kin^ts
persoti nor his nuthoritie: Item it in onbined,
thftt nane rebell au^aint^t the kin|ifis person
oar bis aulhorttie : and qiiba sa makis sick
rehelUonf to he punished alter the tjualitie and
aua.ntitie of ^ick rebelhon be the advtce of tbe
tree estaitei;. And gif it happenn onv vvithut
the reaJmc openly m notourly to rebell a^iost
Uie king', or mikis weir agmnst the kiu|J[is
leif^ against hi a forbidding/ in tbnt case the
king to g'an^ tipon them with assistance of tbe
hat It lands and to punish them, after tlic quau*
titie ofthe trespasse." The 13th or I4ih (tor as
to this there seems to be some ccmfusion) act
af same lutrliament (the 1}4th or 25th ucl^ oY
his reign) is a* lollows: ** Sundrie poyntcs of
treason. Item it is statute and ordained, that
jfif ony man, as God forbid, committe or clo
treaion a^inst the kin|^6 person or hiti niiije***
tic, or risis tn Jeire of weir against birii, or
laye*; bander upon his person violet it lie, i|uhnt
age the kiuij he of, zownff or onid, or receptis
' omy thai hes committed tretisun, or that sup-
fkUes them in heipe, redde or cuuneeif or tliut
fftuffis the bouses of them that are convict of
treason, and haldis tbem againt>t tbe kint:''^ or
that Btuliis houses of their ain in furthering of
the kingi« rebelteis, or that assabries, castile^i or
Iplices where tbe king^s per^u sail happen to
te, without the consent of the three estates, sail
%e pum^^bed astraiWrn^es.^'
YOL. X.
I
under the ^anie paine for wbilk tlicy are
faulted and put to ihe borne, and tliat imme-
diately U|H>o kiiuuledi;''e of thi-tr rvpairin^ in
the hounds, all hi* muje*ilie-s obedient subfectn
due their exact dih<;etR-e at the outmost ol their
iMjwer in searcbinf*', seeking^, InkjHijj' aud appre-
hending tin; saidii traitois and rehells and pre-
senting tbent to justice, or in fi<Ih*vviii^ X tbein
lilt tbey he tak^n and exj>elle4 und put out of
the sbi^re, and imrne<ltaiely tliui ihev make in*
timaiion to the niag^istrates and peijions of
power and authority in the ni\t ub^re, wh»*
shall he bolden to do tbe tyke dtiit^uce \\vi\i-
out delay, and ^ua from ^hyre Vj ikbyie, Wbda
they be apprehended and hronj^ht to jusitice, or
expelled and pnt furth af ttie rtabne. And
furder iihen any manner of traitors nnd relH:lls
liappens to repair in the country, all Vns uia-
je^rtkes lied^t^^ knowing them i;r amoiiiTKi wiioiu M
tbey re«ifjrt, sbalt ^vitb all pos»,s]ble i»peed certify |
the kind's majesty or some of bis privy councdl,
or ifoine of tbe chief ^>ersons of rtuttiority and
crtHlit, dwellmer within the same shy re, tbat
sick persons (if they he known) are wiibm
the same, and if they lie unkno^vn showing'
their tockens under the pame thai the traitorii
and rebells oui(bt to have sustiimcd in hod^ea
or i^food!} theni2»tlvej in cane ttiey bad been ap-
prthended presented, and cfinvicl lie jnstice,
And be ihe fourteenth^ act si.vtparlikiment king'
James the second, . It is declared, that all who
shall recept sucti as arc justified for crymes if ■
the cry me he notour and the trespasser coiiFict ^1
or declared guilty and ordained to he punislied
a* the pdneipatt trespasser. And he the nynlie
seventh act seventh parliament kmk James the J
(fyft^ 4tl i»berrLtl«», haibies and others are or- I
dained to doe diti^jence to apprehend all rehells
who are at the liorne for capttall crymes, and
that no man lAiUlnlly or wittint^ly recept, sup-
ply, niaintaine, defend, or doe favour to any o|*
tbe kiiifT^s rebilts^ and being at the home itith-
in ttieir houses, bounds, laiuls and bnilaEurien
under the paine of death and conliseaticni of .
muveables. And by tbe fyli act 5rst session of ■
Ills majesty *s hrsi parliament, it is ileclar- • ■
ed th{Ll It shall he high treason for the sub-
jects of this reahne, or any number of lliem
more or less upon any ground ur pretext v> hat-
some ver, to rise or contiiuje in ariues, te> mak«
peace or %varre w ithoot his majesties speeiafl J
authority and approbation, first intcrponed I
tliereto. And be the It rat act ei^hteinth parlia-
ment kiu|°^ James the «ixt, Tbe estates ok par-
liament faillifuily promise perpetually to obey,
maintmne and defend the prerogaiive royatt of
his sacred majesty, his airs and successors, and
priviledge> ot' his liigimes cnnvn, with their
lives, lands and goods. And be tlie second act
sec^md session of bis majesties firia parliament,
It i^ statute and ord«4iiieil, that tf any piM>ont
or |M:rsons, shall licreaiter plott contryve or in-
lentt death or destruction to his majesty, ur any
bc»ddy harm lending ti» death or deslructioD, or
♦ Tliis seems rather to He the 15th act of
king James 3d, tkoug^h it is tkot recited ojcactlyr
I
^^
^Bte^ift
d
995] STATE TRIALS, S6 Charlxi U. i684.— PrMrfMb>g» agmtui [996
^ny restraint upon his royall )>erBon, or to de-
1 ry V6, depose or su&pend him from the style,
hooour,or kingly name of the imperiall crowne
of this realme, or suy others his dominions, or
to suspend liim from the exercise of his royall
govemmtnt, or to levie warre or take up armes
against his majesiy, or any commissionat by
hmi, or shall intvse any btran^eis to invade
any of his dominions, and shuli by wry ting",
printing, or other nialioious and advysed speaK-
mg, express and declare sueh their treasonable
intentions after such pers«m or persons being
upon sufficient proliatiun legally convict therof,
filiall be doomed, declared and adjudged trai-
tors, and shall suffer forfaulture of Tyfe, ho-
nour, lands and (>o(k1s, as in the cases of trea-
son. And be the Inmdreth and twenty nynth
act eight parliament king James the sixt, the
royall power and authority in the persone of
the king's mRJestie, his airs and lawfull suc-
cessors over all states as well spirituall as tem-
poral, within this realme, is ratificil, apprevcn
and perpetually confn-med. And it is statute
that his highnes, his airs and lawfull successors,
he themselves and tlier council are and shall
he judges competent to all persons his sub-
jects of whatsomever estiite pV degree, function
or condition, and that none ofHbeni shall pre-
lume to declyne his judgment, his airs and
successors, or his council! under the paine of
treason. And be the eleventh act of the first
session of his majesties second parliament * it
is statute and ordained, that intyme coming in
all cases of treasonable rysing in armes, and
open and manifest rebeUion, against his ma-
jesty, his adVoeat for the tymc may, and ought
to insist against, an<l ]HTseeute such persons as
he bhull he orderiMJ hy his majesty or Ids privy
councill to persue, and if the^ b<r cited, and doc
Tiot apiK;ar, the justices, notwithstanding of their
^bsi'uce, m y ui.d oii^hl to proceed, (if they be
cited and doe not appear) to consider and give
their interlcuuitor iipim the lyl>ell and u|»on the
verdict of the incpiest,- tiudnig the same to be
proven, the doom and sentence of forfaulture
ought to l)e given and pixinounced, in the s:ime
nianui r as it they wer present and compeir-
ing. Nevertheless it is of vciity that the
said .laiiH's earle of Lowdoun, (/eorge lord
l^Ielvill, sir John Cochran of Ochiltrie, and
J'din C'oohraii of Waterside his sone, shacking
olf all fear of (Jod, respeet and regard to his
iiuijesties aut|)()ntie and luNves, ha\e presumed
to eomniitt, and are guilty of the said erymes,
in Ki:a farr as J<.hii lial',"».ur of Kioloch, the de-
ce:.st t>a\i(i l^[:u kstoun of UiiihilJLt and others,
having unon the third day of i\lay, 1679 years,
kdled and murthered his grace ihe latc'arch-
^ In sir 'J hontas 3Iurruv*s Laws and Acts,
only one KeKKioii is noticed of this second par-
lian)tnt of king James Uth. In that session
only ten a<'ts i\n\e appear to have been passe<l,
Done of uhii'ii h*s uii\ relation to this matter.
The IMh a<'t of the Ut session of the second
parliament of c;harlcs 2t is concerning the vx-
cise and customs.
bishop of St. Andrews,* they fled into the
western shyres, and their rose in open rebeDifm
with nyne or ten thousaorl their accompUees,
under the command of Robert HamUtooa,
brother to the laird of I'restoun, banit his ma-
jesties lawes at the mercat crose of Kuthergteo,
upon tlie t>>enty nynth day of tbenid mmietli
of 3iay, drowned out bonfyres set on in coid-
memoration of his majesties happy restau-
ration : Issued furth treasonable proclaaiatiooi
and declarations, and upon the Sabbath day
thcrafler, did assault, resist, fight, and oppowA
party of his m^esties forces at Dilimdo^i
killed and murthered severalls of them. Tbor-
aftsr attacqued and assaulted the citj^ of Glai*
gow, and tiis majesties forces thenn, rende-
vouzed, exercised, and formeil themselvci ia
ancarmy. Appoyntedofficersapd commanden
over them, Ikeep'd coancilies of wane, ploi-
dered, robbed, and riffled the goods, bonei^
and armes of his majesties dutiefuD and loyal
subjects, and continued in open, avowed aad
despcrat rebellion, committing all acts of hoi-
tilitv and high treasone, till Uie twenty secosd
of the said moneth of June, that they were de-
fate by his majesties forces, the said sir Joba
Cochran was actor art and part of the ttM re*
bellion, and the other treasonable cryoMS iiieve
mentioned, in suatarr as Mr. William Gilchrist,
sone to William Gilchrist, in Ocfaikiee, wba
was a pretended preacher, and fntfittBiti
house and field conTenticles, a oomiBoattd
notorious traitor and rebell, who was actnalh
in the said rebellion, having: theraftcr leturocd,
was recept, harboured, conversed and interaoa*
raoned with by the said sir John Cochran a
his house of Ochiltree, and several other plaoci,
gott lodging, meat, drink, and was otherwiva
supplied and comforted by him. And beuf
imploycd by Mr. Robert' Miller indulgej ai-
nister at (ichiltrie, after the said rebdlion to
preach at Ochiltrie, although the said sir Jote
knew him to be a notorious traitor and nMf
yet he and his family heard him preach, aod
therafter recept him in his house, intertuncd,
and lodged him, suffered him to pray, and ef-
ercise therin. And in the moneth of April
or May 1682 years, the said sir John banMr
gone to England, he carryed the said rebol
from his ow n house alongst with him. And
sickly ke the said sir John Cochran did upon
the days of January, FebmaiT;
&c. 1682 years, or ane or other of tbeusycsv
the saids moneths of the said year, did treasoi-
ably harbour and recept Master James firovii
anc 0{>en and manifest rebell and traitor, wba
was actually in the said rebellion, and coi-
veyed him off the couutrey, of purpose to eriH
the strock of justice to him l*y law, and I)Ik*
waves did hurlMiur and recept on his gruuodi
and lands as his tennents, and receaved OMal
and duety from Andrew Paterson in Ocbil*
trie, Charles Colvil younger in Towohsidi
* See the Cases of James Nitcfael, vol &
{I. 1207 ; and of David Hackstoun, laird «
iaihillet, p. 791, of this Toiimw.
^97
] STAtE tRTAl5, 35 Charles I!, 1
ames Jotinstoun ^ane to Jotm Jolmstoun in
hillrie, David I>mje in CJors, Ft^Nn* M»ir-
loch near tli© Kirk of Odiillrie* common an»J
ionous rebflls ami iniitors, who were ac-
uity ill the reMlioo, ami were liis teneub
*lh before and after tUc r«*lH;llii>n. And also
iBie said John Cochran of Uattrsvile, Wiis ac-
[cially \n artnes i^ith the saiils nWHs at their
fieoderouzc at Cumnock, aud particular! v upun
the day of Juni^ the Kaid vt-ar, tlit? ^
said John Cocliran did asscciat hinisilf Ur the
laird of Btirtcobhand a|iDrtv of thesaidsrebells,
cynsistiiiLj of ifyve or six hundreth, and licing
ii]ount4>il <m horseback, in anneal itid with and
a mangel them, as one of their romraaiiderB,
fcadiTouzed and f^xercistd with tht»nj, anil be
was so farr accessuric to ihe said rebellion^ ihat
be penuaded s^ierall perfions who were ibere
logo alongfst witb the I'cMls, and joy ne with
tbecn in tbdr rebehious courses and pruclice«i
and thereto er be suptdytd i!ieni with wyae and
other provisions, out of his faiber's bouse in
Ochihrie, and intertained Master John Welsh
and others thereat. And since he came to the
iTorld, and to any knowled]^e, be has vented
and practised rebeirmusand seditious principles,
and prairtices. And sicklyka the said James
earle of Loudoun and several! other disloyal!
and disaffected gfentlemeu and preachers niett
together at Templebolme at ihe WatCTsyd
lieat Gabtotine, at Kdmaruock, tlie place of
Jjoii^oun and other places, and at the Kirk of
Galstoune, at the huriall of the deceist Geori^e
Canipbe!!, a captaine of the retiells, upon the
first, second, third, or ane or ottier of t!ie dayes
of the luoneth of June, 1679 years. And
there treated^ eonsutteilf an it advysed anent the
larryiog on of the said rebellion » and aiding
and as-iistirtfir the salds reheJb, and in order
thereto he did furnish sereraU with horses and
amies to goe to the said rebellion, and bar-
loured, intertained, corresponded, anrl con-
ersed with severall declared trailora and
igitiveA for treason i and who continued in
ttmies after the said relKdl ion for several I years,
inorderingf and kilhn^ several! of his majesties
^uMicrs ; anil partiruiarly John Nisbet of
Hardhill, a declared traitor, and !«everatl ttther
declared rebel la and fngilives lor rebellion
ttpoQ the ground of \m lands and as domesticks
In his own bouse and family, and oiherwayes
aided, converged w ilh, and assisted them. And
his Majesty in the said year 1679* having- by
his grations prticlamalion allowed that alt com-
mons who had hetn in thcKaid rehelbtm sboold
wixt and the tyme thereby ptefixt, si^e and
aubscribe a bond * not to ri^e in nrmes against
him, and that before sucli commissioners as
the council did appoynt within tlte respectife
thy res. Atid tlie eaiie ofGlencarne b^^ing ap-
lynted to receave the iKjnds sua signed within
lesbj^re of Ayre, the said earle ofLntubun
^e&igtiiog to frustrate his majesties gracious
pitociamationt and to continue the principles
9^™
I his
Vl>et^
hit
th«
ah:
mfiu
'^^ As to this, seethe Case of John Bpreul, at
p. fiiS^ of thi# VoluDoe.
I
684. — the E. of Loudoun andothen, fi
and practices of rebellion in these parts, ^lld
cause John Cuiupbellf mius Boltifoctt, his offi-
cer, call and conveen his wlioll tennents toge-
itier within the Closa of Lomloun, who having
accordingly mett, the said John Campbell liX -
acted two nierks 8cor^ fn>tn each pei'soue, for
subscnbing the forsaid bond. Anil tho siiid
John Campbell with the assistance of Andre%r
Mc'Rofifiey, Nottar, did most fraiiduleiill y and
falsify by fiiraself subscrylie a pretended liond
in natne of many persons^ scneralls wherof
licing conveeued l*efore major Whytt and
others commissionat by the council!, and inter-
rogat anent the subscribing thereof, they uc- ■
knowleiiged and contest that they never sub- ■
scry bed thti same, all wliicb wasilone and per- ■
pet nit by the direction, advyce» and astsi stance
of the said earle of Ijoudnun, and the said John
Campbell bis officer being ctmscimis of the
truth and veiitie oi' the premises, fled imiue-
diatly over lo Ireland. Lykeas the aaid lord
MeUid is guilty of and accessory to the said
rebellion, in sua farr as bis majesties forci^
having marched in the said monclh of June
1679, to liie Westerne countrey, forsubdueing
of the relief b then in armes. And the said
lord Melvill being witli h\s> majesties forces at
the lyme, and with as much outward zeal
professing bis eani^tness to overthrow and
subdue the saids rebel Is as tlie best of bin
majesties subjects, yet he most perlidiously
and treasonably, exprealy cou trair to his af-
leailgenee and loyalty, refigion and duty, dared
and presumed to intercommon and correspond
with the saids rebells, and to keep intedigence
with them, and send commissioners to theni^
and particularly upon the twenty one day of
June, the night before the rebel Is were defate
at Bot! I wel bridge, the said lord Melvill did
send and dispatch Jolm Uliilar of Walerhaugh
from his majesty's camp, to ^Ir. Jolm Welsh
and otiiers, the ringleaders and commanders of
the saids rebcUs, with letters and written com*
missions, &i least verbal! oi'ders, giving thent
ane accompt of the strength and numlK'rof his
majesties forces, and of tbeir resolutions, and
several! other things tending to tlie prejudice of
his majesties govelnuient, and thestrciigthning
and fortifieing of the rebells, and which com-
missioner of his accordingly arryved in the#
camp, and delivered the sanis letters and com-
missions to Mr. John Welsh and others, the
ringleaders of the said rebellion, and receaved
such returns as the ^aid rebells thought titt to
send to him upon the said occasion. And in
lyke manner iher being a dread full ccnsppic/
and plot entered into by the late earle of
Shaftsbnry, and after hisdeceis^ carry ed on by
a pretendi't councill of slate, vizt. by' the duke
ot >Iunmouth, the earle of Kssejc^ the lord
Rtiisill, Algernoon Sidney, Mr. liamden, unci
Sf*ver:dl others. Thcy» for strength enuig of
their rebellious fiction, rciohtd to draw in
some ditjcontented persons within his mtijestietf
kingdome of Scotland, and in order thereto,
tJiey did trnnsnct with the late earle ot Ar-
^le for raisLnif ten thousand men, with whl«lf
I %
d
STATE TRIALS, 36 Charles II. l6S^^ProceeiUngM ngmmt [1600
he was to bc^nne the rebellion in Scotland, i nesses contained in the ezecutioiis, and made
And did commisRioDat Aaron Smith to goe for I faith upon the troth and veritie of the ezecu*
the said kiDgdomc. of Scotland, and to engage I tions in all poynta, James Dunbar HeranlJ,
the said lord Melvill, sir John Cochran, John I executor of the saids letters at the mercatcnice
Cochran his sone, and severall others, who | of Edinburgh, peer and shbre of Letth, being in
accordingly did repair to London in the | sickness and not able to come to the court, the
moncths of May and June last, and ther they
did enter into the said abominable conspiracy
for raisin*r a rebellion against his msje^.
which they were to prosecute in conformitie -his oath, he de|K>ned he truely execute the
with them in Scotland, to the mine and de-
struction of his person and government, and to
the absolute extirpation of monarchy itself,
and that royall familie to which they had been
so much oblisred. Off the whilk crymes of
treason and lese majesty, conTeisiug with,
harbouring, recepting, intertaining, and cor-
responding with reMls and traitors, and other
crymes abovementioned. The haill fore named
pei-sons, and ilk one of them are actors fit least
art and part. Which being found be ane as-
sise, they ought to be punished with for-
faulture and loss of lyfe, lands, and goods, to
the terror and example of others to committ the
Jyke hereafler.
Ptr$€teer, — Sir George Al^Kenzie, of Rose-
hangh, his Majesty's Advocate.
His Maiesties Advocat pn)duced the said
^rouiall letters, duely execute and indorsat
against flie saids defenders upon Iftwful days,
and in a legall manner by usiu^ all solemnities
necefisar, and leaving and affixmg full doubles
of the letters, with lists of the haill assizers and
witnesses names, to be adduced against them.
Compeired lykewayes James Guthrie, and
William Hume, pnrsevants, executors of the
saids letters at the defenders duelling houses,
and the respective mercat croses* with the wit-
* Hv the 33il act of the icign of queen Mary
(the 6th act of her (jth parliament, 1555) en-
titled : " The Ordour for Summoning of par-
ties to compeir before the Justice, or uther
Judges." his statute and ordained, that ony per-
son summouned to compoirc before tlie justice,
his deputes or uthers judges within this realme,
havaud [>ower of justiciarie in criminal causes ;
the copic of the saidis letters, or precc pt, quhair-
. by hee issumm<)uned,sall be delivei-ed to biin,
gif hecau lie personallie apprehended, and fail-
zieing thereof, snil be delivered to his wife or
servands, or aHixed u[)(>n the zet of his flwel-
ling place, gif he ony lies, and thereafter 0|)en
proclamation being maid at the head burgh of
the scbire, ane other copie to \w. aftixed upon
th»' mercat croie, providing always, that gif
there be mau persons nor twa conteincd in the
letter, being nil cajltd uriou ane deede and
crime ; in that case iwa copieu to be delivered
to twa of the principal named m the suidis let-
ters, or then given to tiieir wives or servundes,
or atlixed upon their zettcs or dwelhng places,
gif the} ony have, and ane copic leA and af-
fixeil u(>ou the mercat croce, <juhair the publi-
catiun IS maid, to l)e sufficient to the haill per-
Boues, quhat-suinever they b«« co&taioed in the
lords appoynted three of their number to gof
to his house, and take his oath upon the verifi-
cation therof, who accordingly having tAken
samen conforme to the execution, and the wit*
nesses contained in the execution being swon,
de|K>ned the same.
His majesties advocat produced a wamad
from the lords of his majesties privic coudoII,
for i>ersewingthe forsaids persones^and taking
previous tryall against them.
The said day com|>eired Mr. David Cob-
ninghame, advocat, as procurator exauaiom
nomine for James earle of Loudtmn, and pit-
duced two Acts of privie councill, the one dated
the first, and the other the eig^ht dayes ef
Aprile instant, wherby the lords of privy coon-
cill, because of the said earle of Loudoun's very
sickly and distrest condition, and inability to
traveil as was instructed by certificates pro-
duced unon soull and conscience beliire tbe
saids loros of councill, referred to tbc fenb
commissioners of justiciary to grant the nid
earle of Loudonn such a competent tyme for
his appearance as they shoukl fitt. Ajid alia
recommended to the saids lords to^ve order for
stopping any denunciation against the said
earle, for not getting caution for appcaranei
for some competent tyme, that he may be in a
condition to provydea cautioner, he being now
sick and furth of the kingdome, as was verified
by certificates produced upon soul and oao«
science, as said is.
The said day compeired Mr. James Grfaane
advocat, as procurator exiusafof to nomine, fcr
Geoi-ge lord Melvill, and pr(»duced ane Actrf
privy councill of the date the eight day of
April instant, wherby the saids lords of prinr
councill, because the said lord Meh ill was furth
ofche kingdom, the tyme of ihe ciiatioD and
yet is, and in a very sickly condition and alto-
gether unable to traveil Mithout manifest haxaid
to his lite, as was instructed by certificates*
under the^hands of phisicians from Rotterdame,
produced upon soul ancl conscience, recomeod
It to the Lords Commissionei-s of Justiciary to
continue the said dyet for some competest
tyme, that the j)etitioiier might be in a copdi-
tion to a|)|>eir, and to eive order for stopping
denunciation against him for not gettio^T ^
any caution for appeirance to some dx-et, that
he'may 1k> in acondition to provyde acautioKr
as the said Act at length bears.
saidis letters. See likewise* the 86th act rf
king James 6, being the 45th of his lltb par-
liament. Concerning the l:iw as to citations,*
Hume's Couimeutaries. chap, ti, sect 4, 6,6.
I'he citation by pvoclamatiOD, and aflixitf
copies at tbe luai-kct cross i« calkKl Edtcti
dial ion.
p STTATETRIALS, 36 Charles lU l6B4,.'-thtE.ofJUudounandcth€rM. [100^
» ht/tda Justice Generall, Justiec Ckrk
Unmbskmcrs of Justict&ry» liaviog^ con-
I ills Mudjs acts of couiicill, tU^y, In re-
^~ off coiUiuiieU thecriiiimaU action,,
tt^aiust the said James earle of
and Ceoru« lord Melvill, till the
^^ Mumky of November iiixt, being the
i day ibemjf, unci orduined them to find
DO lor their ap[>eirance before tiie salds
i Coniinissiioiier^ of Justiciary at the said
^ bct^vixt and the slxt day of October iiixt»
ccrlifKatioo, if ihey find not the said
lltey shall be denuticrd, conform to
prinoijiatl letters raised and direct
hv sdad day sir John Cochran of OchiUrie,
> Jot in f'iK'hran of Watersyde, tieing oi\
cjiiied to have eomi»eired bi4bre the
lords this day and place in the hour of
IQ have undt^rlyen Uie law, for the
able cr\mes aboie mentioned* and to
kisiird ami seen doom and sentence of
tilliire [td and deduced ag^ainst them^ and
bare proponed their defences ag^ainst the
tit ^^ ny the ^uuneo should not pass to the
ane as^yse^ and to have giren
^ again tit the witnesses auu as-
» Ui be iuiduccd against tliem, if they any
I mt ihey who were lawfully cited in manner
Ijnciltianed, for that efiect, lawful! tymeof
"* 1 they nor none of them com peir,
' " ■,J1, Justice Clerk,
»ry, therforhe the
ot ^i.^MM , iUi.i >>v-i.T ,, iimcer of Court,
und adjudged the saids sir John
of Ochiltrie, and John Cochran of
Bvde, his none, to be outlawed and fogfi-
fruc hiif majesties lawes, and ordained
to (jc put to the home, and all ther
lile gXM>ds and geir to be e^blicat and in*
bt to our sovereign lord's use, for llier
nption and disobeeience, which was pro*
irt*f1 for doom.
urds for se? erall eaoses movlnj? them,
I the process of foitaulture a^aintt the
John Cochran and his sonc tit] to-
, arid ordained the witji esses and as-
i to attend « ttk person under the pain of
lliuiidrcth mtaks.
, .1i
a D. N. Regis tenta in
de Edin^ur^fh, nono die
pn
lit^j in
H pin<. Mt'iid i 'Miju'Ti; .r :.!' M. MJtM '...uniJiflU
ik* I*«-rth, Jusltcnriurn iuMttralfin, etho-
fl^pj,,!..^ .M... (i. .,,,..-, ^ r^jbimi Foulis
de < Clminim»
^.llehilU Da>
r, liojjrerum Hog
»iin Heton de Pit-
pt i'ninrmni Lyoii de Carss^
nonario^ Justicianie, diet* S> D.
Cuna legitime afErmata.
: iaid day ane&t the critniuali action and
cause depending at bis majeaties advocates id-
stance against air John Cochran of OchUtrie,
and John Cochran of Watersyde, hi^ sone, for
the treasonable crymes lyl»elled against them
in manner mentioned in their dittay recorded
yesterday.
The Lord^ with consent of U]s Majesties Ad-
vocate, continues the proces of forfuuUure
against the said sir John CcK!hran till the
aecond Miinday of July next.
This day the said Johu Cochran of Water-
syde being oft tymes called to have compeired
to have heard and seen the doom and sentence
of fforrfaultore orderly leil, and deduced
against hinif and to have propuned his defences
ajfajnst the lybell, and obicctions ap[tiinst the
witnesses and assizers if he any had, law full
tymeof day bidden and he not compeer, and
tlie Lords Justice Generally Justice Clerk, and
Commissioners of Justiciary » conform* to the
eleventh act second session of his Arajestres
second parliament, proceedit to coniider the
lyhell, and ffave their Inter! oqui lor thcreupon,in
manner foltowiug:
The Lords having considered that article of
the lybell anent Jolm Cochran of Watersyde,
su&iaincs that part of the lybell relevant, that be
was with the rebells at Cumnock or elsewhere,
at a rendivouzc w ht:ji they were in armes, ia
manner lybelled, to inferre the paine of treason.
Sic Subicriifitur. Perth, I, P. D.
AS8I8A.
The Earle of l>umfe4*niling.
The Earle of Linlithgow.
The Earle of Kinloir.
The Ix>rd Dulfus.
The I^ord Lindors.
The Earle of Tarves,
The Lord Living-stoune.
TheLonlSincla'jr.
The Lord Blaiityre.
The Lord Eirebank.
Sir AVilliam NicolsoD^ of that ilk
Robert fiordon, of nortlmistomu-.
Sir Jamrii Cocklmm, of that itk-
Sir Alexander Porfaes, of Tolquhnn.
Itubtfrt RosK, of Aucbto^in.
The noblemen on the as svse pleadit the pri -
vlleilge of tbeh* peerage, that they might not
be on the assy^ of the said John Cochran, ho
not being a noblemau.
The Lords declared the said John Cochran
was in the lybell, with the earle of Loudoun^
and lord Mchill, who were now continued, but
the assyse could not be changed^ they beii^
the nersonfi givcu him in list.
The noblemen on the assyse declared they
were veric ready and witling to senre his Ma*
jesty in this or any other aflair. But protested
for the pveservatiim of iheir pri% tledge, that their
voluotar service should not infcrr a prepanu
tlve. The assy^ lawfullie swome, no oVjco-
tion in the coutrair.
His Majesties Advocat for Prokition ttl*
P 100
1003] STATE TH! ALS. 36 Ch ARt Es II. l e8i.—ProceedMg» againd [ 1004
P
■
I
■
I
duced the wiliresses after ilepnnfD^, who were
all piir^eti of Lniilic4.% ballad, ttl wiU, and par-
ti all couiicvll^ vis.
John Bhck, Smith m Duncan sKeairiDoir* uged
Ibreity six years or thtrby, uiarryed^ pun^.
and fiwonie, deji^Des, that some day(% before
Botli well- bridge) he thinks the Frtdav wa«
eight daya he aawe Jobp Cochran of Water-
ay de att the Barr-hill f»f Ccratiock with four or
five hy lid red of the rebelU, that were rendie-
vouzing in onier lo tlieir comiog to Bothwel-
bridge, ihat he sawe hirii particutarly standing
with Earlesteun and Uarscobbj as it ihey had
beta speiiking toi^ether, biit at a distance he
did not heur what they said. And this is the
tnith as he ishall annwer to God, and that
Barscobh and Earle«toijn were among the re-
beUfl, and that he knew bim^
Sic Sukcribitur, Willum Black.
Mr. John Meid^ Schoolmaster at Curano<'k,
acred twenty seven years, not marryed, piir«;ed
and sworne, depons, that at the reodevonze uf
the rebel l;*, at the Barr-hill of Cumnock, wher
thef wer as he conjectin-es uboul ffyve hwn-
dreth of them, lit* sawe John Cochran of
Watersyde amon^t them walking* up and
dewti, iitid that he'thesiiid John Cochran had
Wk mmll OTVord aWut him^ which waa some
dayes before Bothwel-bridjre, and this is the
truth a^ h« shall ans^wer to God. Depone he
knew Watersyde,
Sic Subscri bit u r. Master J ohn He m .
John M^ComuH m Rig'g't in Aiichinleck
[larioch, agfed twentie- seven years or therUy,
marryed, purered, and swome, deponB^ that be
was at the Barrhill of Curanoek at the rendei-
"rotiZf mentioned in the dejMi^ition*; preeeedim/,
And that he sawe John Cochran of WatersytJe
there, that ht the depofient ha?in£j a mint] to
come back to provyde himself wiih armes as
he said; that the rebells* would not suffer htm
to i^oe home, but putt a guard upon him till he
should lind a geutieman wlm vras to ^oe along:«t
with them to be caution for him, find Water-
syde asked him if he would ^e out with
Knockshinnoek which he said he would doe,
wherui»ou Wutersyde went and s]Mike to the
rebelk and golt him leeve to if oe- home, that
be might rciurne ag^aine, and i]m is the truth
as he shall answer to God, and that he knew
Watersyde.
Sic SuhicribitHr. Juhh M*Cowaw.
George M^Cron in Cumnock aijed thcrty
years or tberby, marry t!il^ purged, and sworoe,
depona^ that, at a rendevouxe at the Barhill of
Cumnock, Bi^rae dayes belore BothweUbrid^e^
he sawe John Cochran of Water«^yde with the
rebelk at tha rendevouie and ihat iher were
about four or fyve huudreth of them in armes^
and to the heat of his memory John Cochran
had a ^word abont him^ and this i^ the truth as
be shall answer to God, and thiit he knew
Watersyde^
Sire Suhscribiiur. GwiUGB Bi'dtain.
miliam Waliacc^ in OchiltHe, t^ fyfti^
years or thereby, solutus, fmr^ed, sod bwotm,
depons that he s^we some people In^etHfr apot
the Calsay or Ochiltrie^ some with g^uos, tnni^
with 8wom.% and Mune with amies they ht4
made, put on upon a staff, depons that for
colours thpy haJ some whytt thidg n^ i
stick, 4iud that he sawe j'uhn Cocbrui «r
Watersyde there, and that ther vnns somt if
sir John Cochran** tenenta 90ns amooi; them,
and parti CI darlie one William !)fe*Ghie ind
William Howie, a weaver, James Muir and
James Key» David Gillies and ThoEDfts K«td,
and this is tlie truth as lie shaU answer to God.
Sic iubicribitur, WiixiAM Wallace.
Archibald Mc^Ghitf Smith id Ochiitrie, agif
fifky years or thereby, marryed, ptirgi*d, at
sworne, depons that he sawe some inen, to the
nuiviber of twenty or therhr, remlevouie ati
OchiUrie, and th^ one David GiUies and J<iln
Sinchiir did drieiel them, and that scuds M
^ns, aome partizans, and that the mcMt pst
of them were sir John Cochran's teoesit^ mm^,
a nd t h a t l>e saw J ohn Coc h ra n of Wster"; v .v
near them, and that for eoloiirs they bad whom
six quarters of linnin)^ tyeil to a stick milk I
read ribbon, and de]»on& Ibis was some dsy<i
before Eothwelbridire: and this is the truth m
be shall answer to God, and tbat be kufW
Watersyde.
Sic tiibscribiiur, AR€HimALD Mc*Gie.
Jithn Patcrum^ in Ocbtltrie, nged fifty ytsnv
or thereby* marryed, pnt^^, and iworw.
depones, tliat he sa^ve some men» wherof «sm
were sir John CochranN tcnenti aons rrmk-
vouze at Ocliihiie, und that they bad bttn «f
fork*> bitts of swords and halb^ns^ and iljit
they had a whyte eloath tyetl to a sbdk lor
colours, and that be saw e John CocbtmB, of
Watersyde, whom he knew, cotnis out lu't
speak with them, and this was 6ome diyca
before Both welbrid^i^e : and this is the truth u
he shall answer to God.
Sic sithscnbiiur* Jons Patebsos.
The Lords ordained tlie assise la indotfe^
and return e their veniict to • morrow.
Curia Josttcluka, K. D. N. Re^s tenia to pr»-
torio burri de Edtnbor^t^ decimo ib«
mensis, Aprili^, anno niUlefvimo sevccs-
tesimo octuagesimo quarto^ |»eT
et potentem Comitem Jacwbum Ca
6ii IVrtb, Justiciarum Geoeralemyi
noraltites viros, Domioos Jaeobum P<^i
de Culliun^uo, Justtoiariic Clenaa
Johaimem Lock hart de Ca%tlebil
fidem Ballbur de Forret, Ro^c
de Harcarss, et Alevandrunt
Pitroedden, et Patridum Ljon \
Comniisiuonartds Jnsticiarti, dictt S^ 0* '
Regis.
Curia legitime affirmaia.
The said day the persons wbn past apoB 1
as^se of John Cochran^ of Watersyde,
I STATE TRIALS, 3b Charles II. i684.^-4Ae £. ofLaudaun andolhcri, [ 1006
M^Kcnzie of Ros«fhau(j^h, bis majesties advo*
cat iigainst tbera thcraueut, An<J the fornamed
pcT^oii^ being: tben called, ami tliey i»or twim
of tliem compeirancJ, By lecoiimieiidation
from tiie lords of his majesties privy eoaiicill,
ihe dyet was continued to tbia ilny, and now
tbe fiuid earie of Loudoiin ami tbe k>rd Mel-
vill being oft tyntcs cuIUhI to bavc underlyeti
tbe latv for the treasonable crymes abrive m'eo-
lioiied, and tbey nor nou^ of them compeihog'v
tbe lords justice pciMrall, ju<$ti(*e clerk aud
cotumiKsioners of jiisliciary, by tbe ttiouth of
JjidieH lienrysone macer of court decerned,
auil adjudged the said James earle of Loudoun,
and Geiii-j^e lurd Melvill, to be outlnns and fa*
^itives fra*i h»s majesties lawca, decemetl them
to be deiiunced our soveraiv^ne lord's rebelk^^ ftoil
to be put to bis higrbnes horDC. And aJI tbeir
lands, bereta;reS| goods and geir whatsoraever,
to be forfaulied and escheat to our soreraiirne
lord's use^ as outlaweti and fugitives fraie
bis titajesties lawes for the crymes of treason
fomaid. The lords continue tlie protcs of lor-
faulture against the earle uf Loudoun, and
lord Melvill till tbe aeventcinth of 31arcb ntxt,
March ll^i, 1685,
The Lords in respect the earle of Loudoun,
lord Met* ill J sir John Cochran of Odultrie,
John Keir of Newtoon and Wdtei- L(H;kbart
of Kirktouni and sir William Hcot younger of
Harden, are cited before the big-h court of p;»r-
liaiij^nl ^ to tbe fyfleiut of Muy nijtt for the
same treasonable crymes Ibr which tbey are
citt-'d k'fore tliejUHtices. They therefore con-
tinue the Dyet a^^ainst thecn till tlio sixteiotli
day of the said month of May.
May 5th, 16B5.
The said day anent the petUion presented to
tbe saids lords be sir Georj^e M'Kenzie of
Rotiehaujijfh his majestie'sadvocat shew msr that
wber albeit bis miLJestie hath for puniAbin;
the lata execrable plot, and some other con-
spiracies and treasons within thin his ancient
kingdome, given order for raising' one sum-
moned of Treason against sir John Cochran
of Ochiltrie, sir Patrick Home of Polivort^f
George lord Melvill, — — M outgo me rie n
Langshaw, Mr. Robert Ferguaone, Mr. Iloborl
MartMie, Walter l^ockhart of Kirktoun, Tho-
mas Ntewart of Cultnes, Denholme of '
Westsbeilb, Andrew Fletcher of 8altoiin, ►
earle of Loudoun, Pringle of Tur-
wood lie, George Mome of Bassindean, Jamci
Stewart son to sir James Stewart, yet his ma-
jastie is desyreotts, that thev should (ufitill
they be found guilty) have ail Ikir oecaftion atid '
allowance of defending themseUov, and Jwat
any of the saids persons might be precludit
from proponing of their defences, on tbeir he.
* As to the juri^etion of tbe ^ots parlia^
ment, see a Note m Cesntiok*5 Case, p, 919 of i
this Volume.
t 8ec tlie Note in p. 654, of thia Volume, and
sir Patrick's Narrative pubttbhed by Mr. Hone*
verdielta itresence of the saida
^ iflmvof' ilie tetiar foUawes :
ki^^t hnritig meloaed and chosen the
\ liieir Chancellor, they by
uie ttnd John Cochran of
guilty of the cry me of Treason,
ooforme to the depositions of the
Hic inhfcribiiyr, Linuthqow Chancellor.
ce General I, Justice Clerk
. o( Ju9ticiiiry» having con-
tl (he ^i^id Vi-rdict of asayse ; they there-
tlie mouih of James Johnstoun Demp-
.t decerned and adjudged the said
irnot of Watersyile, to be execute to
lIvoMined as a traitor, anil to underlie
of treaaon and utier punishment ap-
tbe lawes of this realm e, at such
le and place, and in such a manner as the
Jitaticw GeoeraU and Com miss ione 1*3 of
VtlMll appoynt^ whenever he shall Ihs
'it. And ordains his name, tame,
>ad honors, to be extinct, his blood to
and Ilia annes to be riven forth and
out ot the books of armes, sua that his
may iwYer liave place nor be ahle
bruck or enjoy any honours, offices.
dignities withui this realm in tyme
I aud to hare tbrfault amiited and tmt
aundiy bis lands, beretages, tacks,
, roumes, possessions, goods and geir,
er, pcitaining to hmi, to our so-
kirdj to remain perpeluallie with his
ill p(0|)eiiy. Which is pronounced for
Jpmciani^, S. D. N. Regis tenta in
Pnetorio Burgi ilc Edinburgh, dt^cimo die
Nofeatbris millesimosexceiitesimo
orttiagesinin quarto, per Nobjlem et Po-
tcniriD Com Item Georgium Comitetn de
igow Juiticiaruni General em et ho-
firos Uominos Jacobum Fouhs
im CoUiogtoun, Jiistlciarit Clericum,
Luekhart de Ca!»tlehilU Davi-
fkm Balfour de Forret, Kogerum Hog de
Hareap>«, Atexandrum 8etoD de Pitmed-
den, ft Pittnciutn Lyon de Carss Commis-
•ionarios Justtciaii&e dicti S. D. N. iiegia.
Carta legit mie affirmata.
«ud day James earle of Loudoun, and
^ bird .Vfrh ill, \mng summoned to ap-
: the lords justice general 1, justice
f^tmnisfiioncm of justiciar^' within
th of Kdii burLrh, tbe eight day of
1 inlhe law for the
of • til Qontryving the
iiurs4*v4:riii|^iK lord the king, and bis
lirotht-r Jam»*>< duke of Albany and to
thm if • ( . And for having fur-
^►•llion raiaed in Scotland
^a«ff t^J9 ri r the retepting, barhouring
ling with rebclU and traitors,
ncBlMi^ in llic cnrninall letters of
mami ai tbe instam-e of sir Oeorg«
STAFE TRIAJ^, 36 Chakles II. i6«4.— iVocerrfinjrf agaiml [1006
I
I
iDg* tebelk and at tli^ Lorae, tbat they be re-
\BXCt\ *■ ad huDC etft'^-liim* alleoarlie that tbey
ma J have ' personam slaiuluojudicio.' But*
pri^udioe to his niajt^ty oi' atiy casuahtie or
benetitc falliDg- to hw majesty through their
rehelltoD, anri the day of their comjieiranre
beiflfl before the hifxn court of parhament
the fyfteint day of May instaut. Jies^echiiig^
tb6rfor the saids Lords to grant relaxations to the
fomaiDed persons '• ad hiinc etiectuni^ that tUc;y
may have * personam «tamti in judicio* before
the parliament the said day. The Lurds
bariog considered th^ Petition aboTe written
^veo in be his m^-ijeslies advocate they l|| iw
rdaxatioti to be exptil for -fir John Cochran and
othpre above specitied, * ad b twee (foot urn' that
tliev may haie * pei-sonani staudi in jtidicio*
and iimpont* thfir defcijces befor the parliament
the lyUeinth diiy of May instant. But pre-
jiklicf to the kin^^ of any casnulitif faJlpn to hi^
Bjajesue throuirh ilieirWini^ at iht? borne.
Sk 8ubicrtbttur^ ^ Ja. Fuulis,
Damd Bajj^our^
J. LadLHAAT.
_^Wodrow, speaking- of the prorveedings of
the Scotch Bftrhament in the year l(j85, aays,
'* Friday, May «2t diiuy U read apiitist'sir
John Oochrau, and others ; and the adfoc^ate
tnsLSta 1 mo against fiir John Coehrane. The
firjft article of hb libel, anent the plot, h voteil
reletaot. Probatioiies, Alexan<ler Monro, icho
is prcitenif and adiieret to his dcfiosition for-
merly given in Jeniswood's process (see
u. C7^), which in r^^ad to him, mid he t^igns it.
Then, contrary to repeatc'd promises and de-
clarations as we have hearil, Mr. Can^tairs^sr
printed deposition is read, and the clerks d«-
pooed Ibey saw him sit^ it. Next, Burn and
tnotberrEogli^hman^s depositions, sii^-ned by the
£n{^|j&h secretary, are i-eaiJ. Then the advocate
adduced the form 4»f proccHlinfjfs in the lik*?
ca&es before the parlianicntf in the case of tht^
Popish Lords, 1594, and against itoheri Logan.
** After all, the Advocate had a speech to the
parliament, wherein we may gmi&s he would
aggravate thi.* conspiracy, from ^i bat wo saw
in Jerviswood'K Case. 'Then tlic parliament
TOted the probation Rit^cicnt.
** The Advocate, in the next room» insi<;ted
upon the second avtich- of the dittay, scr/king
and collecting money for the l;ite earl of Ar-
gyle; and for probatjoiu »he laird of Pollock,
and Craiifends cidtv, their confesaioni in their
OH D processes, were adduced, Tbat sir John
had demanded from the tirbt fil^y^ and the
other twenty pounds sterling'. This probation
ii next voted good.
*^ Then the question \va» sttate^l, Whether the
pannel being ftiund guilty should be forfeited.
\V hereupon the bishop of 8t, Andrews, in his
own name and that of his brethren, de&ired to
X See the " DiverKioBa of Purley,'* Vol, 1,
pp. 190, et 6eq. St3, ^14, SI 5, 4t(i edit, of
urn.
be exctised, though tbey hud voted in tlie i
Taney and probation, as to this Tote^and r
liberty to remove. When he reoiovsd*
^ve in a protestation, aitd took iostnun^
tlic Register's bands, that tliis shooid be
prejudice to their parliametiiary prii
The bishop of Kdmburgh, at bU rematinTiiMti
a stated speech, exclaiming Rgpain&t ^pcff
and Presbytery, as the g^reat enemiei ^j*
bishops, with a deduction of die sense and opi'
tiions of Canonists, as to bishopa voting k
casts of blood. When the biahops Ind tt-
mored, tbey were called in agmn at the adrt^
catt**» tnotion, he aUedging tl*e pariiomeat wb
not full without them, wanting' one of tbeil>Tt«
estates. During the en lb ng of ibe roM ti»fv
were silent. [As to this matter, see 2 Huuv «
Comm. chap. 1 1, p. lOL Hee&lso in this* tuU
lection tlie Case of the Popisli Lorti«^ tol. 7^
p. 1217.]
** ^V hen the vote for forfeiting^ was ofer, Hr.
Thomas Gordon rend the sentrnt^, and t^
kiug*s trumpets sounded thrice, upon whiek
the doom Wius pr*>uouni't>d by tiie Dernpaier,*
and the trumpets sounded again ; and live fta*
ten re wa<i intimated at the Cross by ibe hm
and Heralds, ft is exactly in the same iRai
with Jerviswood's, (Hee p. 710}»
** June 13th. Tbey begin with the W
Melvij, and bis ditta^' is read, bearing, ibitbr
j^rc intelligence to" the rebel k ml HaHbnil*
bridge, and his accession to the (dot. UtA
arc TOted rt^t^rant xepar<Uim^ As to tb« <btf
article, John IVIiiler m Wotershaug-h depoacs,
tjiut the lunl Melvil sent hitn uocm Katisrdij
June tlsl, with letters to Mr. Joh" UM-4T
tttid Mr. Daviil Home, and bade hit;
if they would lay down their arm^
render, they would ;^t good quarte
kiiigV* army was decamped that ^
none knew whither they were t** r
the duke of Monmouth ; and that >
the rebels camp, and Wishaw went thrie oul^
with him ; ami that he met Cultiic«s's inia,
Thoma^^i Sicit, whotobl hitn Wishaw had Uea
at Cul Loess. Wishaw deponea c^ii^rm >« oa-
nibujt. And John Strang, who kept a pa»r
* ** The form of giving forth the ^ --- -
says Hume, (2 Comment cap, li
speaking of the Justiciary, *' has ^,..
modem times, from what it wa** of old.
cases not capital, the use had been, chat it «•
read out by the clerk of court from Uie
and was repeatetl after him, by one of i
macers, to the panneL In capital cases ^'^
an attention which savoured of biirbaritr, ibe
olSee of repeating the sentence was defalvnl
OD the Doonister^ l>empster, as lie is called, or
coumion executioner. This rudt> ceremoar
was abolished by act of adjournal of tbe Itiu
March 1773, which orders thai the ■OMBlt
shall be pronounced by the preatdiog Jo^^E*^
and afterwards read out by^ the clerk, moi tlie
record; which is signed in thi^ part, oootrary
to what is observed in Uic otbcr steps of pro-
cess, by all the jui^ge« who are prwciit.**
^krebel!i. ifepociei, Jebn ^tilter came to him
BFiniiiiififlrl, ttmt let ttitii «^ the backii nf his
Jtthn Lt»itkharii of Hars ilefmnes, he
"' ■' t to Wlrji» Na^mith's in
•' letters were ihrecleil
' niud Robert Haiiril-
1 i>»r probation,
,ir8tairs*a de-
r ! .fmfessinns ot"
leeini^ with what co«n-
I th« lord Melvii. This
9eis Alflti Uiuud proven. The iord Melvil
nicnced in coidoioq forna.
A* to jsir John Cochrane* August 17, T
i tlM* rrf»i>n<'U order a party to hi* svni with
' M •' n(*, anil bis son John, with
I. :t[ Aihef.to put thefii ahoard
r kmg ^ \ , f ■ ~ J ;| to Loniiou.
« By the uient*, The
STATE TRIALS, ^6 Charlis II. l(J84.— IA« R oftontkun and othen, [1010
landt of sir John Corhrati of Ochiltree, lord
Melril, the Ceisnocks, JvrTisw<wM|, £ar1stOuti|
of entails was evaded in Engl iind htifor^ the
Scots had bci^uo to study or to improve iheii*
laws ; and the early sovereigns of the Sliiart
fmrnily would never hare eon^eoted to a ilcvict!
adapted to |)erpetiiate a feudal aristocracy,
which it was the uniform policy of tbtir kiotisa
to depress. But the nobility nt present wera
DO lonj^r the object of jealousy or fear. The
estates were cajletl upon to coufipm the sen-
tences of Jerriswood, Arg-yle, and Portcrtkdd ;
to ratify llie op* n ions of the court of sesMiott
that it waii treason not to reveal the demand
of rontributions for traitors^ nor to abjure th<i
treasonable declaration of the fanatics ; to ap-
prove the practice of the justiciary court, in
proccedinfif to trial an»l conviction the day after
the citatiion was ^iven ; and the nobility were
secretly alarmed at the retrospective trcasoni
which they wem employed to create. From
these ihey perceived that'ihe declaration of new
laws, antfof new crimen*, wa-j lodged entirely
in the lireaKt of the jiidre ; and frnm the nu-
merous attainders wbit-^ they were required
to pronounce, they felt with terror tliat their
lives were exposed to the mercy^ and theif
estates to the rapacity of llie servantfi of the
crown. To preserve their estates from for-
feiture, and tlieir families frtjm ruiu, it would
appear that they sought an indirect expediet)!
to elude the iniquitous laws aad corrupt prae*
ticeij which they were too dependent to ii'jcct
or to resist. Eutails had already been iatro^
duced in a few instances, but were reprobated
as repugnaQt to the genius of the lawt*. Cor-
ruption of blood, whicli obstrucis the couri^eof j
succession^ was a penaltv never incurred as-
the consequence of altaLncfer, u^l«s5 it were in<
tlicted by an act of disbabiliiation ; and the «
e^ateSf relying' secretly on the^niajLim, thut
nothing more could be ibrfeited than the per-
son attainted was entitled to alien ate» passed, j
an act^^ [it is the act concerning' tailstiesi*
act !2td, of the 1st session of the 1st parliametil
of King James 7th,] '^ by which lands fnij^ht j
be entailed to perpetuity, and the rights of
an endless aeries of \wm l»e reduced «lmos| j
to uu usufructuary interest during* their lives,
I'nder the pretext of securing iheir es-
tates f]Y>m alienation or debtn, the nobility un-
doubteilly expected to nreserve their fomilie*, '
in the ev*ent of an attainufr, from the forfeiture
of more than the life-rent interest or escheat ofA
the heir The coimnissioner [Qiieemiberryl ]
consented to the act, to perpetuate his own ae« )
quisitions to his family ; and Irorn tli> v^
of James, entails were ititrtHlocfd Int \
when the rigor of the feiidal system hint iiimoti
expired. In a commrrtial conntry* abo»«
a iifth, or a third part of th^ lands is etcluded
from c4^timjL'r»n; ; and entAils wdl contihue
increase, titUlie uicif^itude of the evil rtquir
an extensive redress/* Of ihe Article^ of I
Grievances, (Ibth of the Acti *nd Oi-dert of]
the Meetinir of the Estati^i of the kbi^oro i '
ST
♦ t^pon the subject of forfeit uie and eorrup-
Mr. Hume, 3 Coram. <^p. 17, p.
thu« coneerninjj the law of Scot -
By custom lime out of mind, every
lY ientt'ncr is attc^nded with a farther con-
duce, I ho contirication, or escheat as we
I ft, of all the convict^s moveable goods and
ce, Ui his majesty ^s use ; to which effect
t^anCifnCij K<?ars a g'eneral declaration, and
iftMlvr and »uihority to the projier officers^
toarikct and brli ' ' s. This had
htamnnt ihe law ^i iie empei'orti ;
iMittt tlieeastorii mvf »u >i^ti.il untions, who
In^ iKiC the same regard to the Horn an law
ite wtt hK^f^ and has pri>bahty been derived
Um frocn tieft ramote source. Except in
OMi uf iTfMOii, the turfeitur«i of property on
eiyiial eonrictioti, has never, at any penod of
«V fvictice, extended to the real or heretable
tfliie-, which in Eu*{lnnd, at this da^, seems
^&M as escheat to tiie lord of the fee, in all
' petty treason or tielony. In this res-
b% oitr costcmi is less rig'orous than that
H9 we have never a;dmittei! ttint
I corritption of blood, consequent with
I attainder of IVdony ; whereby all des-
itf |iropcrty to the felon *s kindi'etl is oh-
1^ irl|ifjY*ver tliey have to connect a title
througli him to any of their
fblhiwtn^r observations of Mr, Lmng
list. ItKftf '^d ed. Bvo.) tlirow light on this
,««idon iilhinr parts of thtsc4i$e, uhich
wcr^ by uti means constitutes the whole
. the new treasons which the par-
l flfWiicd^ and the numerous att^nuders
aiM*ed, an act fd'an oppositt ten-
MMi MMtd, to authorise the perjietual
fbiida, Hiat tlie 8coU should have
iImmI su lonif ignorant, or have availed
I at audi a tale period, of a feudal
iHmcU other natioos were desirous
IbiBfilCNlit, ifit rirenmstancef sufiicicnt to ex-
fil»««r iHeiilkia md furj^rijEe. The tdfttute
101 1 J STATE TRIALS, 36 Charlbs IL l6M^ProeeetUng8 agamti [101?
Doucba], and others, are for ever aoDcxed to '
the crown *, not to he dissolved from it but
by parliament, and that nut upon general nar-
ratives, hut particular causes and services to bo
spcciiicHl, that it may appear the same is not
granted upon iiiipdi-tutiity, or ui>on private su{^-
gestions, but for true, jubt, aud reasonable causes
of public concern.
'* 1 siay no more of all these worthy persons
but that they had justice done them alter the
llevolution.
*^ This Annexation, with such solemnity, to
the crown, was by |)eople, who knew matters,
reckoned {grimace aud farce; and upon the
matter their estates wei-e already in the hands
of the chief muua;;ers of the persecution ; and
iu the very next purliament, we sliall find dis-
solutions 6f several of them made, upon uo
considerations of public concernment, but to
Ijfratify particular |)ers(ms who had been active
in the present measures, and were favourites,
and nmde use of to corrupt i)eople into the plot
against the Protestant Re!i<;ion. And it is cer-
tain enough the rents of all of them, and multi-
tudes of others forfeited, were one way or other
running to the private use of favourites."
It appears, that in this same year, there was
a suApician that tht; lord llepster, (sir George
Mackenzie) and secrrtary Murray, had been
in corref((K>ndence with lord Melvil. Wodi-ow,
after notiring Jameses encroachments on the
Royal Burghs, and interference as to the no-
mination of magistrates, pniceetis thus :
" Whili* thasc l>r,l:l stops are takinir at Lon-
don, whieh weri* a prrfarc to uUut followed iii
ll!i;4^1nnd, as to coi\).»r..ii..';is, mmh-Ii i>f thcsuinc
iiut;ir<\ our nj;inaj^vrs y.cie. iiut to !.« aitngt'lhcr
ot"a pii'fc juiioi.g liicinsiIvTs ; and ihfor;jiMions
art: l;i!;v;n from y»i\ Ju\t\\ Vtitvh. nnd L^'jiue ac-
c«!;ir.is s.ild to h.' given by s»ir JoLm C'ofliraii, with
riI;tlio;i lo ;h.' wgiitci* and bitrttarv Murray
tijrir cunvsprmli:ig with tijc lord Afchil, and
some malvr-rsaiioiis of the king's advocate.
Without dipping at nil into tliis part of secret
history, T shall lay before the reader what 1
meet with iu tlic ri'i;isitcrs about it.
Si'oil.ind, .\[.vVi V\ iCWO) tlic lliiril \% ** That
tl " r{;;!i.u'.ti.;;'S in pnjndicc ul' va;si:!;, eu*-
dit;»rs,u.id !.».ir} M'fei.Juil aiv aj^rcat gricvani'L"."
Slo Mr. Liiin^,'s account of Act / Aniic, c. CI.
* j{ is scai\ ily liecessai;) lo rclcr lu iL*; va-
rious acta tor L->>SL.iii(iing and restitution wliidi
Me:v e.ii.rtcil sli(»rtl\ alier thv; rcvoluiloii, in
favour ofii.L* iiiiiiiliiii of those who had perish-
f,i uaJvi* il»e antei-^Jont proseripiion, or of
ihose prose: ibi^d i:iili\i',!uaU v.lio [im\ survived
it, i^!r. Laing, 4 Hi^i. ::31, smv:, ;li»t " l#y a
aijigie aet up'.w.ni.s wf four iuiiitlicil atirniiicd
|,<..soi.s vv.ij Vi'Awiin'il by nauji ." 1 Cwiiji.!:-
tujj, ibat ;l;c iiel whiefi !^ir. Laing tonu^in-
Ll.il'.il, vvas ;ii't i:., ul'thw' CJ Sf SM< n of tl.c l»t
I'urliai.icut of \»illiaii» an J Mary. July 4,
l:i'/o ; *nu\ if so, 1 i>clici*:, >ii*. Laing rather
vkcrjiM.ek ihe imuibcr uf pcr:ioai» who were by
nauiu ri:&Lur«<d bv it.
' The Letter dDderwritten, directed to his m-
* cred majesty h-om the council, being brought
* in from the committee appointed in the fore-
' noon for that effect, being read, the same was
( approven of and signed, and ordered to bede-
'• liyered to tlie lord marquis of Athde, to be by
* him presented to liis must sacred majesty,
* which letter he accordingly received, with
< the nrincipal examinations of Mr. Jdht
* VeitcD, and Mr. William 8peoce, upon ottk,
< there being no copies letl, by die council'!
*• special order. Folloiirs the tenor of tfat
' foresaid letter :
' May it please your most sacred Majesty;
< According to your majesty's commaBdi
* given by vour royal letter, we have by yov
< proclamation, adjourned your parliaioent ts
< the first Thursday of April 1686, in the usual
* manner. As also, in obedience to ^our sacnd
( commands, in another letter of the san»
< date, we did intimate your royal pleasure to
< the council of Edinburgh, to continue dit
< town council as formerly, and to forbear to
^proceed to any election of magistrates or
* town-council, for the ensuing year, until your
< majesty declare your pleasure. We judgs
'• ourselves always obliged to inform your oui-
* jesty, as being of great importance to your
* majcbty's government, ancf of the higbert
< concern to all your faithful servants, that the
* committee for public affairs having appointed
* two days last week for srarching of priaom,
* and examination of prisoners, they reportedlo
< UK, that in the examination they touud by Mr.
'• ^ViIlium S|K>nre, that sir J(dm Cochran's soi
*■ had been qiHfslioi.ing him, if he had carried
* on any coiTe»pondenec betwixt the lord re-
< gisttr, and the late l(»rd Melvil, by wliich il
*• would appc-u;*, that sir John Cochrjo'i sob
< had I)t>en pvaaising him, v.iih a di^s^ign toac*
» CUI.J the lord iTq;l.sUn', v.hii'h corrcs(>ondcoct
' is lioelaio-.l I>y liio >i;i«i SpeMUM? to be utterly
* tal.NC. 'riuii;' wu:» anotiKi- railed Mr. Jvba
' Veil eh, who wa^ ilose jiiiiA'iier by the lonl
^ e.liaiiCL]lei\ ordtr, ar.d liiuicfore whett thf
' council called for him, they removed all thi
^ clerks, and that Veitch did* give his oatbii
' wr.t. «vhereof, he s:iid, h^' had sent ao exad
'• (foiilii'e iO the lord chancLilor, atWr his lord*
* siiip's i><»ing froni this, \ihieh pro(>orts, as if
' i nil' iuifi lion ha4l eoi.:e from a rebel, or some
» of their eoriespondL»nee, of your advocaie'i
' malversation in your majesty's service, whick
' he albo denies uJmui oath. \\ e have ltke»i*a
* information, that albeit sir John Cochna
* v.onld not v.i'..int:irily expose his secrets and
* <li.iCovcTies, until he saw your majesty, no DOt
' to your otiicois of state ; yet some have toM
* hei\.> a day or tW4) alter sir John had |arted
' tVouk this, iliat he \« as to accuse tlie earl d
* Murray of c.)u\ersiiig with traitors, andwt
* having" sent lor bir James Roch-head tbi io-
* former*, ue find he is gone for London. Thii
' in fact we iiumbly lay before your royal ws-
' doui, a;» matters of extraordinary wdgjrti
' loi^i by such practices your majesty's savioi
013] STATE TRIALS. 36 Ch ABLes II. 1 684.— fA? E. rf Loudoun and others. [1014
mmy be more endangered, than by the ene-
my't open eudeavonrs ; and albeit such in-
formatioos are to lie received agfainst the best
aerrantSv yet we in all submission offer to your
mnesty'a consideration, how fur the rat^e of
demted enemies, (es|>ecially when inrluced
by threats or promises) wilf prompt them to
concur in ruining your faithiul servants, who
have aerred your majesty faithfully, in ruining
of them: and we humbly oiler these, amongst
many considerations, to*^your sacred majesty,
that from your royal and fatherly interest m
and orer your servants, such directions may
be given, and such notice may be taken of
these informers, as will be most consistent
with your majesty's 'interest, and with that
which is a part of it, y(Kir majesties justice to
yoor aniast servants. There is one Welsh, a
rarfeited traitor, taken, and brought before
01, whom we hare remitted to the justices, in
order to bis execution ; and albeit severalls
of these irreclaimable reliels be still skulking
in the Mosses, yet at present there is a greater
qoiet in the western shires, than has been in
ncm these many years bypast, and all pos-
ftUe cure for their continuing so shall be taken
by us. But since the lord privy seal , who has
btCB present with us, and whose eminent ap-
and fidelity on all occasions, in your
_ 'B service is so known to all, espc-
to yonr royal self, is now going to at-
^our royal 'majesty, we leave a more
fBdeuUr information to he given by him, of
whit relates to the idbresaid or other of the
hWc concerns of your majesty's service
■oti and what further occurs, shall be faith -
My transmitted on all occasions, by, May it
pIsMe your mojesty. Your majesty's niost
umble, most faithful, and most obedient sub-
'jeds and servants. Subscribed ut sedemnty
cnept the marquis of Athole.'
"October 24, the Councill have the fol-
hnog Return to this Letter :
J.R.
* Right tmsty. Sec. We received your letter
'if the 21st of 'September, from the marquis of
' Athole, by which we were much surjirisrd,
'tet you had taken upon you to examine
'?alcii, oommitted close prisoner by our
* dWBoellor, with express order, t!iat none of
' what quality soever, should have any access
'li kimyawT totake up the order given by our
Uor. Both which, we look upon ns
of that nature, as we cannot but ad-
'y Jtw by what perswasioo vou came
li do them ; for supposing it has been pos-
■Ue fur our chancellor to have done surh a
our onler, and that it had really
yet we ought to have been in-
our royal pleasure known, before
mgj tlniig bad been'done contrary to the order,
' illy where there was no danger in a
lODgur delay. This we look upon to be
ndb our immediate concern, that we
Icfc wwa know how much we are dissa-
wn it, that for fhe future you might
< be more careful, that no such practice may
' be. We do likewise find in that letter, that
' some rebels have been induced by threats or
' promises, to accuse some of our faithful ser-
* vants. We doubt not, that before you sent
* us that information, you were acquainted
* with the names of such as threatened or pro-
> mjsed rewards in so wicked a matter, (as is
* well known to the world we would not suffer
* against the worst of ouren^mirs) which names
* we desire to be sent forthwith to us, that we
' may make them examples of our justice to
* posterity. So we bid yon heartily farewel.
« Given at our Court at Whitehalf, the 17tJi
* day of October, 1605, and of our reign this
* first year.
* By his Majesty's mmmand. Melford.'
" Such a letter required a speedy answer,
and so, October 25, tliey make the follow uig
Ueturn :
* 3Iay it please your sacred Majesty,
* W'e regret very much, that any thing in
our conduct should have offended your sacred
majesty, whose prosperity and greatness we
have ever designcfl in all oiir consultations
and actions ; aud since your sacred majpsty
has prescribi?d to us me^isures, for our con-
duct in the future, we shall by obefliruce show
what have been our former designs; nor
would we insist U|X>n what was done nt the
writing of the last letter, lest it might seem
a justification, if your majesty's express com-
mands in your letter did not ordain us to
give an account of the motives upon wiiirh
we proceeded. As to what concerned the
examination of Vcitcli, we having seen my
lord chancellor's order, which bears nothing
of any warrant from your majesty ; yet we
thought it our duty, to have so mudi respect
to a jjerson of his eminent trust and merit, to
contmue Mr. Veilch close prisoner, acconling
to his lordship's order, without ever taking up
the same from the keepers, in whose hanils it
did and still lii^, notwitiistandit::; ^^^^t Mr.
Witch has Imth drponed to his ^inlsliip and
us, tlmt he knew nothing of that affair, nor
would we proceed on that examination, until
we knew what he had said to liis lordship ;
and acconlingly he continues still close pri-
soner, so that whatever enquiry may he made
as to him, is still entire ; norwould we take
any discovery from him, further than what
was made to my lord chancellor, udr would
we so much as keep a doohle of the Fame,
but transmitted it to your majesty by on of-
ficer of state, and member of the private roin-
niittee. And one of the chief motives that
induced us to believe, that we mi^'ht examine
him, was, that my lonl chancellor's onicr did
not expressly bear, that no person or juUi-
<«atiire should examine him, wliicli, if it bad
been, we would have had that just deference to
my lord chancellor's onler, as not to have cxa-
mineil him ; hut theoi*der bearing only, that no
person should speak with or see him, wo only
considered Veitch to be in the condition of
1015] STATE TRIALS, 36 Chaelbs If, iCU^Proceediitgi agBiMii
' fftbcr close priaoners, u bom tbc coiincU uten
* to eitaminc. But wliatcverthe pmctice lias
*■ hiiiti^ [{ ih siiflicient tor us^ tbat your u)«^ty
* has ejtcluilcd aJI examinatioii in t uch cases
' for the future, ^hlch we &hail humbly auit
* lii^artily obey. Ami to shew tUat no iutercs^t
^f»t' ouii>, (Jid or shall induce us to belipvei tbat
r j'uur majesty by yuarseU or your ordei\ may
* not examine any person h batsoc?«'er, either as
* to UM gr your lUBJc^sly's stirvants; we again
* renew tlie ackoowledg^nient in our former
*" ieiter, tbat inltirmationa are to be received
ainst the hvst of scn?aiits ; and we may be
? safiT in thi8 aeknowledgment, tiiat we are
'«o hnpjiy a^ to live under a prince who will
* prolsct ttie iuDoceuce of bis approved ser-
* rants. Ab 10 that expression in your ma-
* jesty'sleltcr, that «otne rebells have been in-
* duced) by threats, or promises^ to accuse your
* serrantsi, we humbly ofler to your majestY**
* consideiadou the rlau^e uf our letter, which
* bears, tbat we in all subiuissiuu oiler to your
* iiia|fc^ty*ii conoid e Hi timit how far the fTftg^t of
* dt'fealfd euemict> may prompt them to ruine
* your majesty's faitbiul servant*, which was
* an absti-act consideration iu the g^eneral,
*■ «\ itbout reflecting upon any ])ariicular person
* wbatsamever, or arising Irom any examina-
* tiOQ u^eutioued in the lettLT, bnt from tire
* md experience we have of the rage of your
^Ul^Jetly^s enemies against your majesty's
* lervaxils, and the gre^t Uberty tbey titke to
* Kwear eveiy thing tbey think for the advau*
* lage of their C4iusv; and in this time uben
IJfour majesty *s enemies have nothing left
Kihem hilt tllis re\cn£^c, against tho<$e who
■ faitlifulJ^ seive» to mine ibeni, and who are
* iiTcconcilable vuih them and their interest,
» U|jufi your ttacrtnl muje^y's account, es|»e-
•cially, beiiiile uur ruin, they may project to
* tbemiKflves a freedora from death and punish-
* meut, which, ua they justly desene, is the
* mosl territicalion ot' all tenors. This in
* offered to your majesty by. May it please your
* sacred mBjesty, Your majesty's most bumble,
* most faithful, and most obedjent suhjecL» and
* servants. 8ub<)( i ihed ut s*:dcrunt^ except
* Batcaiias and Claverhouse.'
L«irdof Abbfltshall,
C, Gmbum of Claver-
bouse,
Laird of GosfortI,
The Lord Archbishop
of Glasgow,
The Earl of Linlith-
gow,
The Earl of Balcarras,
The Lord V. Tarliet,
The Lord Y ester,
Pre*iidenl of SessioD,
The I^rd Advocate,
The Lord Justice-
Clerk,
Luird of Drumelzier.
'* How tins matter endetl, I cannot say. If
1 he procedure ofllie council I after this year,
liad been insert in Ilegisters, we might have
known more of this, and other differences which
let! in among the managers in this reign, of
ivbicb 1 am not in case to give certain ac-
counts.*'
I^Ir Laiog says that Cocbnme [qu* both]
«Si;a4i«d mtb Uelvil mUt Uotlaod^ and it ap-
pears frotn sir Falrick Ilitoic^*^ Nartftttrt (^ 9),
RoAe, tlialnrioliiiCiiaMiat
«( Nil
published by Mr.
and his son John upoB itie
Charles' death, came, with oIIm _
oi Amsterdam, and £ir JobD fsagirly^
io tlie c*oncert which was ttiere bwl i
the invasion of Scotland, in co*op<!nitioo '
Monmouth. Sir Patrick Hiiiuo's oartalifvs
an account of the occurreucies in tkat cip^
ditioui in which he had a very acti? e pan,
The following ts tbeai^ounl of Wiiiln9«»
into wUicb be says, he has; inoarporsid
the papers which the carl irr<»te wilb hi* owl
baud, or dictated in prison. " TUesi?,** Ut «UK
** are evidently unfinished^ bill as Io a |Alil
narrative of the most cousideral»ie fads, iimf
are the best account 1 have seen of ikia miU
Icr."
*^ MoQitKHith was not ibrwaril to ib iiy
thing during his fatht^r's liii.- : but m h*?ri 1^ mm
dead, and that in so > itaf,
be, with the bauisbc^l < Miuut,
thought it high time to bee»Ur thetiuirlvtss, judg*
ing tiiini^s now come to a crisis^ Uy ibe ifiCl^
sion of a bigott€;d papist tu the ikrouei andil
like to go as Home would have it.
** Accordingly, in the end uf Febniifyi il
March and Aprd, there were several i
kept in Holland ; and an invasion was
upon OS necessary. The duke of Hlc
with the English rc^ - -^ to liad s
Koglaud, and the eoH i h il»«^0i«
people, were to essay •<' <^>>i> ^^ o^ud&ii4| aM
it was agreed, tbnt Iwth should be as iiiiieliil
possible about the same lime. The diiba d
Monmoutirs attempt 1 shall wImiLIv kmtf H
the English bistortan&, and eoofini^myidlw
the earl's de&ign upt)a Scotland,
^-^ I havebclbre me the Minutes of o mmAf
of our Scots people at Aiii^terdam, Afinl }7|
0» 8. this fear, and the rtadcr will d**fjrvt»
have tbera nere. There were |
of Argyle, Mr. Charles Cam|il
John Cochran of Ochiltree, sir I/iirnck Hutoc
of Ftdwart, George Prijijjj^le of IWwowller,
William Denbobii ofWestshida, Geor^g^ BoSi
of Bassindeaa, John Cochran of \\ alcnii^
Mr. George Wisheart, >V«M -r^ ^ *f Itaa^Jancl
.Stuart advocate^ aiMl Mf l%iliol* ir
John Cochran was ekcteU * „^^^ ^iru Aaefica
Thev UDaiiimously resolve,
^ That the abovenamed persons* und Qfhtt
*' gentlemen of the kingdom ot ^
Mng with them in a great u:
* tended by them in the defence^ ^
* i-ecovery of the religion, rights, m
^ofthe kmgdom of Scotland, &ir
* take upon them the quality i
' a council, for co&sukiog and tlfjLeniiifiailf
^ whatsoever relates to tbat great un^gSfWkit^
< and management thei^eof ; atiik thttl 00 iOA
' as they come to Seotlaiidi audi of the BtfiBi
* as shall jo^n themselves to libeill in tbe|W
^ seen t ion ot the said uudert»kiiig', sbaM hk0*
*■ wise have access uoU>| ttai W Jojmrd m I'
' foresaid CQuncil.
STATE TRIALS, 36 Charles IT. i
t |*prs<mif tWrt^aiii, In Ihe oUarflkCtpr and i
f ahovr r^im xsciL iUt resolve to intike
i> the rK mentionettj »4jaitist I
I tJuktr of I J (1 Vurk, Hn<l sui'li vl» \
lilheffftio biai; tiuU for tht^ corn man rt j
tofltirt <»f ibe army lhe\ shall be uWe to
r . iliVl |]»iit)imuuf»i}' cbo^)^''
• !, wtili aji fiiU and ,
iw\^ Min-generAl is ordi-
la Qtti; lo iKn «: ii orii any tt-«?e »Ul« 10
3r«l4cli*d And nominated Mr. WilUani
ft tiieir derk, und recumtsiend it to the
Mtw<« Siimrt, to iierltfCt the declarutiou
ib;u to publish I ftitd llmt ngtiinst
r, llitl Mr. Willium Veiuh.
ilay* und William Clelbn, be
li^j l^ HtxitlaiidtanU tut»tiui:ted (or that
Aud that the eurl ol' Argryle, feir John
iHt»ir Putrick Hume. ^Itm-ge Prinj^k,
J ham llfMihoirii, lac-^i loniorrow at the
' 'ifljhtotih*? chick lu the
M their iiiit ructions, and
t uetrimg till Mu ml ay at eitfltt
I ; flight, lo sir John Cochmn's
liouHt they met at tlie thtie oonoerted,
J baie seen no more of the minutes df
k«cdurv\ and I r(*ckon tht'n thev a^'eed
hitt^lit of Iht'ir drclf^mtion^ iihirli shall
c I be inserted . Probably after
|k , ' nut otlen meet^ for the thne
iwixt them and the duke oi' Mon*
his com{iuny« was now h&sliu^r en.
** iit'lay, and VVniiaro (»iVerw«rds
neJ) Clelbn, were in Scotland
I came over, and no doubt kept
uctions.
of May, the earl and his
id, with a very few ships, and
iher of artus. The money
thrje, waft R)08tlv raised on the
The duke of Monmouth, with
I, had faithfully enga^^ed
ten davs at^r them in Hoi-
st N fore they landetl in
.. AS done of desitrn,
wMti ^determine, ftwasvn-
it*.. I ly was ndviEied, that the
ibnsis muihi be iH^ttn'd down upon
if and llictr i^ite thns lie tfie easier in
I; Ilawe?er, it b certain, tlte duke of
WM titlrooely concern ed wh«n the
Ntv was brok» !•<- enrl himself
MM Indeed hi^ "uld not have
I n tr--*f f*— It ii 1., ,.i^ii, the English
4ii}^ ' ina of aj^reeinent, tended
I kiu^^..^.. i^*c earl'a lualbeuiiH and to
nl'bolb.
i amri ci Eitf^lfind bud very exact afid
f iftJbnmlinn of tbe Dumber, force,
^ w^the earrs little MitiadroHf M*He
m off And notit^e a^roidinifly x*ns
Ibie ifiiwigera to Hcotlaiid io be upon
tori* ^rbeif taucbiog at Orkney liid
684.-— /Af E, qf Loudoun mdcihcrt, [ lOiS
further alorrn 8c<illand ; and ko much had the ^
late imposed oath^ i«rru(»ltKl the p*iMn ;*i;ui,
and ao S£:reat was the iuHufence of thi- : ^
that there appeared a very df^neral <\^ •!
B^^iiiist the earl'ti attempt ; yud auch was the
consieruatiou and terror u|H)n friends, and so
far were they H.unk by \ou*^ op(irc-ii»ion, that at
bent they vvei ti siteni, wnd would not mi much
am cori%spond with MUch an were«cnt oyer from
Holluud^ and a coming'.
^* In bhori, aa the curl himaelf in the foresaid '
hintSf more than once, remarks, * the Lord%^
* lijue was not iet ctune.' 'lUr •; '■ ^' Pre^.
byierians ill Scotland, were ^ n ini
the pl;i4'»3 {^tf^ draj5:ons. their mJUi .,*^ -....iered^i
and the bulk ot the pedplci who wish<^ well to{
this enterprise, were peileelly dispirtted under!
twenty four yeurR soi'e sutferuij^^*. The liimaoe J
had not attogether healeil liic reoLs und breuchet ]
among- thetu ; and tbe party whit were in aruis^ I
wandriu^ and hiding in the tiehk, tt>o many of 1
llietii were ^oue to those heights, which did I
not pemiil them to joy n with any fraokaesti in 1
this debig-n, as hath been observed ; and th« i
rest Mere miserably bom dowu, and friifhted \
with the Koldiers and niihtia; and most ol'tlis <
honei»t Presbyterian gentlemen were eitlier in '
pri>»c>ni», or forfeited* and su scattered, as
could do nothing in favouiaol* the eavL An
above all, the self- concci led neas^ couardic ,
ignorance, and miserable (lifferenceat ainoii#|
iome who were embarked in tbe desig^n, spoiU
eii all ; so it is no wonder 1 huve a very inekia*
choty liod aofry acoount lo give of this ettler*
priice*
*^ Betbre f eome Id give an aeoount of th«
earrii uttnnpt itself, I aball baert what I meetj
with in the council-registtrs relative thereunto^f
li)l the etirl was mx* d, from which it will' a[i
peur httw ex;tct their intbrmation was. t
the ap[kjintmeut I tind in the councii-
March 12, to have come from aotue hints o** i
desig^ned invawin. ' The marquis of Atholei
^ ordereil to raise tire huudretl high land- meo,]
* for securing the peact* of the shire ot Ar^ It^ j
* and that they have tueat and dnnk providcd«|
*■ with arms and amnnmitiuu, out of the kin^
^ magazine.^ IHteir intbrmation, it seems, b
been very imrlicnlar and early, (or April 38, th
council wnte a letler to tbe lords jitstices
Ireland^ thaukin*;; tht:m tor sending down tl
forces to the c^ast, and accfuainttng them, tha|4
by thia time they reckon the late esrl of Ar* '
gyle is sivik'd with three ships. Thtit same day
lliey publish a proclamation^ ortleriujf all the
subjects to be in a rcadiuesa to SbMst the kincf
in case of an invasion. And next day, ApnJ
29, they grant a commissiou to the uiarqtiis of
Athole, to be kird tieutru'cint ot the shires of Ar«f
gyle and Tarbat. He is onlertMl to marcel
with some forcY^ to that shire, and every plao
he goes through is ordained to furnish hifl
with bii*>|;age-Tuirses, And May «, the <
cil declare, Uiat by tluit clause in the inarqniiH
cominifiMoo^ That be shun hi take provisioQi
uec^'iaarY to sii^h at were under bis command
they oAoemand that he may take quarten.
1010] STATE TllIALS. 36 Charles IT. 1584.— Pnorefdifr^t &gmnsi riOK
easily raised, and the earl in flill time at Ih, to
hare surprized Ballechan and his party ; bat
they wrrr kept back for forty eight boars, tnd
miss d hin^ but 1>y one hour.
*< In Tobemnore in Mu)l» they dropped an-
chor, and were by several rubs kept there three
d<iys, which was'mightily *io the disadfantige
of their cause ; for e?ery boor's loss now was
more than of a day at another time, and a dij
like a month. From Mull they carried three
hundred men with them, and wafted orer to
Kintyre. Here they met with new disappoint-
ments, many, from whom they expected rnocb,
failed them. However, in this place the?
stayed some little time, and sent orer' some it
their men to the Lowlands, to prepare thfl
westtojoyn them.
** At Campbeltounin Kintyre, was first pob-
lished and dispersed the Declaratwn and .Apo-
logy, &c. drawn np in Holland, as the five-
mentioned minutes bear, by Mr. Stuart thit
eminent lawyer, and excdlent person. 1 hire
two copies of it under mine eye ; that printed
at Campbeltoun in Kintyre, in tlie shire of Ar*
gyle, and the other reprinted some time aftei
in Holland, said tobctakenfrnm acorrerteopj.
** This Declaration and Apology the mder
will find drawn with a vast deal of jndjrnient,
candor and calmness, and it contains a most
pathetical and affecting account of the pre-
sent state of things in Scotland, and the pre-
ceeding history will afford vouchers for many
particulars in it. It might have been expected
tb is declaration would have much awakeacd
the kingdom, but indeed it bad vefy little ia-
fluence that way.
" When they were at Mull, or coming to it,
the earl sent offhisKonMr. Charles, auil bf
went ashore at the castle of Dunstafiugf , with
letters to his friends. Some, whom he sup-
pled to be his friends, basely discovered ail,
and others were very backward to joyn. The
lairds of Lochniel and Loup had lettwtamon;
other gentlemen of the shire. The first eait
Mr. Charles his solruin promise to joyn tha
earl with all men he could raise, and that npoa
a day a|»pointe<l ; and yet ni<wt treacherously
ho sent by an t xpress the earl's letters, aw
prohably his declarations, to the connril <
l^dinburgh, and afterwards joy nod tlie niarqdi
of Athole, with his forces, at Inveraray.
*< Mr. Charles used nil his interest in that
country to convocate them ; but, except a
hundred or t^i^o hiiodred volunleeni, lieliad
very little success. Some pretended they di^
not believe the carl was come in person, other-
wise he himself would have come to the shire;
others professed their willin<;nessto stand and
fall with the carl, but prefise<l he mi^ht ^fto^
fight the enemy, otherwise their families Uf
presently at tlirir merry ; and indeed the bei
of the ijenllenien in the earl's company were
for this, but it was as violently oi>pused hy
others.
" All Mr. Charles got done, waa potting i
pirrison in the castle of Caraasory, tbc dweB-
ing house of sir Dtmcaa Campbel of AoeUi-
** May 11, the council publish a Prorhroa-
linn, ordering out all the fencible men ; which,
•ince it is m c(»ramon form with those at
Bothwel and Pentland, needs not be insert.
May 17, Letters are writ by the council to the
duke of Gonlon, and a great many others in
the northern shires, acM|iiainting' them, that the
earl of Ari^yle is appearin|;<;' on the western
ishmds, and appomtin'T them to call forth the
heritors. Tliat same day William Spence and
Blackadder, are onleretl to lie broufjjfht
•outh to Edinbursrh. And May 19, all the
heritors on the south side of Tay| are ordered
to attend upon the king's hosL That same
day, ** Lord Neil Campbell, William Cochran
younger of Ochiltree, the master of Melvil,
and Pringle younger of Tor^voolllpe, arc re-
quired tu enter their persons ^rithin twelve
hours, in the castle of Ethnburgh.'* This is
all [ have observed in the registers, till June
20, when the earl of Ai-gvle is ordered to be
brou;;ht to Edinhunrh under a guard, as we
shall hear. I return now to give a narrative
of the earl's attempt.
" At first their voyage was very promising,
and in thri.'e days they were at Orkney, and
happily escaped the 'dangerous tides there ;
and under a considerable storm they were kept •
together, and free of the rocks, when they
oould neither see the coast nor their lanterns,
by reason of a thick mist : but next day, im-
happily they found themsekes on the 'wrong
side ot Orkney, and had missed the passage
betwixt Orkney and Zetland ; so they were
forced to put in to get pilots, not without hopes
of assistance, but \\ere disappointed.
** Mr. iJJac'kaddtT, son to Mr John Black-
adder, f )f ^vhom before, was sent iu by the earl
to get intelligence, and Mr. \\ ill lain S|)ence
would needs go with him, to visit an uncle of
his who live<l in Kirkwnll, the chief town in
Orkney. Ijoth were<lisoovtrtHl, and catched
by the old bishop there. This was a great
Joss, and alarmed the country very much, and
notice was soon sent to the government, of the
small force the earl had >^ ith him.
** The carl w.is peremptorily resolved to re-
cover the two geiitli'men, ano ordered sir Pa-
trick Hume, with a party of fusileers, to attick
the town where the bitihop und they were,
which might have bocn easily done ; but some
of the company intiuiiicod the enrl, and much
more the masters of the ships, pretending they
might ly long then*, deUiined by contmry
winds ; so the d('si«<fn was dropt, and only li^-c
or six prisoners sei/e<l.
'* From Orkney the little fleet hasted away
by the inside of the Western Islands, as the
shortrst conrse ; and li-ad they got thither
straight, tliey would have surprized a gentle-
man, Ballechan, in lla, with t(»uror tive hun-
dred men : but the m ind calmed, and after-
wards blew liard and contrary, which made
them tack in to the sound of Mull, that, if
possible, the earl might touch at Lorn, a part
ut* his own lauds. And if such as they ex-
pected bad joy ncd them, that country had been
NBl] STATE TRIALSp36 CHARLSsn. l68i.-^<Af £. ofldmdmmand^hetB. [lOSfi
brack, ami the seUlinff of himself with a few
neu ill a litde town belonging to 8ir Duncan,
ibnut fbnr miles distant ; and informed his
&dier thence, uf the state of the country.
** While tlie earl was at Kintyre, he had
letters from Bir. George Barclay, who had
bem lent orer, as wc heard, and was a consi-
dcrsUe trustee in the Lowlands. By those he
had accounts, that all possible was done, in
cder to dispose the country for befriending
kirn ; but no assurances could be given of auy
condcraUe party there joining him ; that
ftftfal had the matter under their considera-
lim, but were come to no resolution. In
iboit, all was but faint probabilities.
•* Hatters standing thus, ue need not won-
dortbeear) and his party stayed some time in
Kiatyre. The earl was indeed very much
UuM, as losing time, and giving his enemies
tinie Id draw together an army ; but necessity
kdi no^hiw. Aud further, as was thei^ given
sat, he had |iromisedtotheduke of Monmoutli,
Iseontinue in some retired place of tlie coun-
. try, till he had notice of the duke's being in
Mioo in England. He had, likewise given
aaonmoes of raising a considerable number
tfncn io his own shire, and we see how much
hi was disappointed. iScurce any uf his friends
AoCaave sir Duncan Campbel of Auchin-
hnd^ with about eight hundred men, joyiied
.■ "Twy few resorted to him while In Kim-
a; oniv he bad one addition of about three
M foot, and one hundred horse. Upon
ibmill accession, he profKised to send off a
WcM-ooantry gentleman to the castle of Ard
■iln, who deelinetl going till some intelli-
; and then he Mas not only wil-
I hot rash and hasty to undertake that cx-
till, with ii7uch ditHcuIty, the earl
him, bavin:;; recL-ived advices the
iras full of forces, and some English
_ _ I upon that shore.
** About this time the gonrf news came, that
^■hipbreck's men were ready ; whereu|)on
Aeoui ordered him to march with tbcm to
ihtTvbet, a very centrical place, and oppo-
4ll ID the Lowlands ; and thither the earl
^■fs with his three compimicH from Ita, ui^d
knec'otnpaDies from Kintyre, commantUd by
^iaael Aylief, Robert Elphaistuuu of Lapness,
^d ottjor John CampbJ, afterward executed
Itlavenray, and a troop of horse couimanded
^liamboU.
^ At th« Tarbet, upon tlie 27th of May, the
>irtpriiited« and caused disperse his own De-
fknCioii. This ^^J^ heai-s the rcasan ol' it
^ito««ii bosom. The earl bud concurred in
Ihiibnner lais^ declaratiun ; but it was i^i^en
N|l.|y bis enemies, that he hail private views
^nevrar hit own estate, and the lands of bis
This he fully obviates, and pm
^M»t»jBiy not only bis own but his far lit '.N
^jhli. The otlier particulars the rcat'.er will
Wis lbs paper itself, and so 1 say no uiorc of
!«■), TbP Aedaratioii, it seeinx' very much
goreroiueiit, vluce they 'print it
at full length ; whereas the former dedara-
tion is printed in some short hints, with per-
verting clauses insert by way of commentary,
and for the refutation of it, of which somo
notice hath been taken. Both were published
by authority.
*' At that same place, about a thousand men'
joyned the earl, mostly with sir Duncan Camp-
bel. Here the earl modelled his very small
army into three regiments, which were not
nmch above five hundred men |)er piece. Sir
Duncan Campbel,Mohn Aylief, and tlie hiird
of L:t|iness, were colonels ; major Alexander
Campbel, the laird of Barbreck, and a third,
were lieutenant-colonels ; James Henderson,
John Fullarton, aud major John Campbel, wera
majoi-s ; and all inferior officers were at this
time nominate, and this handful put in the
best order might be.
^' The earl was fully determined to have at-
tacked Ballechan, who was lying about Inve-
raray, waiting for the marquis of Athole and
the earl of Broad-albin their coming up : this
was a very reasonable proposal. That gen-
tleman had but about six hundred men with
him, which might have easily been given ac-
count of, and Argyle shire settled anusecured,
and the carl's army at least doubled.
*' But 1 find in the alMivementioned paper,
that sir John Cochran and some others of his
party would by no means consent to this ; but
were peremptory to have soine hundreds of
men, and half of the arms and ammunition,
brought from Holland, giveu sir John, and
him sent to the shire of Air instantly : he was
so peremptor}', that he said, if no l^dy would
go with him, he would go alone with a com-
lork in his hand. This was not the only con-
tradiction sir John gave the earl, if the ac«
counts of those times may be credited.
''*' To do every man justice, as far as my ac-
counts ailbrd materials in this irksom story, I
am apt to think, sur John laid too much weight
upon some informations which came from the
Lowlands, aud promised himself a great deal
more than came to pass. I have In-tbre me a
letter without any date ; but I take it to be at
this time, from William (alWwards lieutenant-
colonel) Ckllan, to sir John, which, with
some other accounts of such a nature, might
have out an e<ige on sir John's expectations,
especialiv in a matter he would so willingly
have had true. It deserves a room here, as
what at least will let u^ in to the activity and
cndcuuiiirs of that gallant gentleman, in the
trust coniiiiitted to luin. Jt follows :
* S. P. 1.
* If vou kiK^w what hazflrds I liavo nm, and
' travel i Waw been at, y<}ii would he satistied 1
' have not been ncglitrcnt. I \\\\\v turned all
* stones, and hope, by God's assistance, things
* shall go well. The great muliliudcs «f ene-
* lilies, and the remissness of sdine friends,
< liave retarded mightily. By God's help, I
* hope the malecontents are gained, and begin
* now to act : I hava this order to write in th«k
STATE TRIALS, 36Cha&lks n« l6U
« ii«iii«9» thai if Mr Rer be for the work of re-
« foroi^oi), carried on from tKe 1638 to the
* 1648, Uiey are i'ar him. Let him Dot i pare to
* »peak them fair, and d at to be anv way trou-
' bled fur what they may write to Dim. Rce|i
* yoQ strong where yon are, and keep the ene-
* iny in ss greal rexalion ma you cao, till you
* tec m beaeoD upon Lowdoo-hilL I hope in
* ei|^t days or tliereby all shall be in a flame.
* Send us intelligrence to Moffat-well, if possi-
* ble, where I shall have a man or woman with
* a knot of broad red ribbons about their ri^rht
^ arm, to whom they shall give all their inteHi-
* g-ence. Haste to send it. The enemies did
* prevent us as to horses, but we are minded to
* retake them. If yon could frequently abrm
* the enemies, it would erceedinjfly weaken
* tbem* In short, things ore brought to a pro-
*■ babte posture.'
*< This probability did misgite, and tltose
temed malecontents^ the society people in the
aOOtb and west, fell into diHTerences, as we
Ii6ard| as to the terms upon which they would
jjOyti with xArgyle. But 1 caji find nothing of
tbetr scruples as to his being against niouar-
chy, and for a common wealth, which is a
mere reproach: And uothijig was effectually
done.
** However^ such accounts as these made
some of ilie 4(entlemen stifily oppose the earl
his going to Inveraray, when he had an excel-
lent pros|M!<:t of muny advantages by so doing*
Tu deleiijjine. ibvir ditforent sentiments, a
onmeil of uar muh eallrJ, and there, contrary
to the earrs sentiments, it M-as resolved to make
an iuTaaion upon the lowlands. The earl calm-
ly submjtiad, but indeed this step was mightily
to tlieir loss.
^^ At the isle of Bate, another stop befel
them; a company of foot, and some of Rum-
bold*s horse, could not have boats to come up
aoon enough, and waiting for them, the earl
was detained three days. When I hey arrived,
the good project upon Inveraray was laid aside,
and the forces transported, the best way they
could, to Cowal in Argyle shire, just opiKisite
to the lowlands, whilTiei* the gentlemen would
be. And sir John Cochran, cojonel filphtn-
stoun, and major Fullartoun, were sent to the
lowlands,
** By this time the coasts were guarded, and
some Enj^lish frigata come up, so that sir John
durst not land in the Largs in Air shire, as was
prqjecied, but put in towards Greenock for in-
telligence, and some meal for their army.
** l^^ien they came within musket shot of
land, there appeared a body of horse upon the
sburc. Sir John having the command, ordered
colonel £iphinstoun to es^oy landing with
alraut twenty men, iihich was all they could
land at once for want of boats ; but the thiug
being impracticable at that place, and the co-
lonel's orders being only to ol*ey in as far an
reasonable, taking this to be just the losing io
many men, he flatty refused.
** &r'Johji prevailed upon major Fullartoun,
^ vien,tOHllaDnlt»U
' ky% wkksli tn did niff
' giiiaal«Mkn«i«i
iHter. Tliv prM
with about a dtmtnk «f
in another place ]
the Ore of the mihtia, a'oil ;
into a sort of ditch f^Mr shHter*
account abovenaroed, bears, * Thmt ike *
seeing them ashore, gaire #irer firini:, aad At
* young laird of Hooitotlti, aod Crawfonltea,
' came up to the cnajfn*, ftitd aaotber with b«,
* and had some otuirersstionv and paaidttv
«
mutual worrfai of himoitr^ to i
'■ till the parley was over. Af^r they Hadal*
* ed some oneations at the mafor, to bis snU
* surprize, they difcbargied th«tr pastids alMii»
* whu;h happily missed binr», aod be ntiOMi
* his, and killed one of ibeir I
* ed another. By tliit tin
* were landed to the major's
* those with the first fMirty beliST«il m i
' that the militia retired to llie Ibe^oT i
^ opposite to the ships, who 6r»4 i _
* thecn^ which reached bo near thens, tiial i
* retired, and some did n<it draw hridlrliil ib^ '
* came to Faisly/ This is tbe account givia
in the printed narrative be<t»r(-naiG»tk»acd ; 1
cannot assert it as certain, and h&ve aci it dost
as I tind it.
*' Having oommontcated what is above. 16 1
worthy gentleman present at iliia litde kbAi,
he is pleased to acquaint me, * Tbst line hn-
* tors of lienfrew shire, formed is a txoop oiip
' the lord Cochran, at the ooundrs ^fidii'
' ineot, were at this time keepiti|f goatd <
' Greenock. When Mr. Fullartaao ' * *
' near the kirk of OreeniH-k, Jotm He
* yoimger of that ilk, lieutenant o4' ibe I
< and T)
and Thomas Craufbrd of Cmwfoi
^ elder, quartermaster to it, with
* men in comi»nv» r*'de down tov
^ Fullartoun and uis men, who ha4 put if i
, sig^ial for parley; and Houstoun bavinf i^
^ postulated with the major on tbe«r
' he answered, they were cotnf^ to thrrr
' country, for the preservation '
' religion, aD<l libertlea of tb<
* was pity stich brave geatleincii «.noui»i «p-
^ pear against them, in uie serrtoe of a |ii|al
* tyrant and usurper. Upon %vhich iloatfiw
' said he was a liar, and thschar;ge<l hi« |a^
* amongst them, as did also the rest of tliefi^
*■ tiemen with him, and the m:iior and hit osi
* returned their fire very brizJ^ ly , but did ■*
' execution ; only Houstoim'a horse bdnff ^
*■ mettle, and unused witJi fire, tjinew sMi
' but be soon remotmtedi and reLuruedtatb
* troop/
** Upon their flight, sir John with the •«•
came ashore, and entered the towrn of GrmfliA
ai]d endear onrcd to preva? 1 r inbabinrtk
to^joyn in defence of re I' libtrinr* Hi
sazed about forty bolls ui uitiH, insteM of ll^
two hundred the earl Iiad ordered him la ha^
for the use of the army ; and then, upoa^te
alunn, went off in the night, and itt^ad huk^
i'tnvA, and Uiere, tix> lati% dacUfsd it a»
fully to attempt the lowlands ns yel, they W«f
every where guarded with Boldi^m and oiilitB'
'« AJl now Idl 10 the «Arl, was la aak^ i^
&
fSTATETKlALS.36CHARLRsll. l6U.^ike K of Loudoun mdaihers, [1088*
t he cuufff in hia ovrii count rv i and m fte
^wwi lib de«t^ la iittenipt Inveraray,
iK»w St II vast ilf^MMlvHiitui^e. Ac-
, lir riii tries hiM k(ii;UI nritM i uiuY'^nve
ball ui ii to cM>loiicl Kiiiulu i<J, Atu] sent
- ^ ' ^' ' '' ''k^ iii.ujjuis of
|l 'wi««o to injse
Hitli Uun*.t;JJ t« lfii«*rajjiy j but
Dif CJiiiM'ary !jix ar i'it^ht iJavs, nnd
► t'lisjat* b#»iii*{' n»i«e ti|^ he was
' tit!!* Vf^ist^U ur«fer the oinntJe o!*
*rh«np he took out surli jirinic ami
tiiJii sui li^ at prtfMMit stooil iti dcihI oi\
llliem uji in the cftHtle, wUU'h hv torii-
iell aM in sn cihort a time he could, muJ
L'lieil by lutid to InvtTurjv. rtrsohiu;;
; till' muniiiu ol' A»h<»k", U his %hiit\
ti{i to him* lie lett iwu ci}ru|f;u]tes
i Uie castii**
[J-
* hunilretf
^hiss ;
■ V :t five
\n!kiiii^
He jn i-rjMja, in tiDMiL 1-ul oti a laitje
lull of n»cn» to knoiv the coloru'l'i
^(f <ti.T.,tiik -r^rjiain Duncan son
l» »ul, wrth ten mcn^
^ . >hot of ihf tovui,
j^iaadi lo liiy hnn«>ur i However, so nit rv-
iTfiU wt?iv onltreil from lovtTarnyjto rttakt*
' lie t^f Artlkinglass.
lire c»rl, by ihts lime, wns i^ot U{\
J rc^gimt^nt* b<Miml with Itiu^ to Uum-
kI the enemy tlut!in|j their , tutstake^
[mJt III th«! bead of Uirhfin, Up«iu
* eaiH lilfuiielff nith five cotnprmies of
nvo of horse, went li> ntlack ihem,
' rc3t to be hroug-hl uj» by air l>iin-
pbeL The maniuis of Alliole beltijj
[4>f thbi ii«nt off ^omi^ of his tnen in
fftUd upon the em Is rerc, and cut off
but sir Duuc^ui proveiUeil thai by
able r^imin^ u|).
I tfiirl wilb the iirst named companieflf
Ltbe lirbi b<Mlv of the e fiemy, auil eu-
^tbrmlo liaf ilight, ainl {Jiirsu«.'fl iheiii
rbilc ijpubt^ep hill, till the i^tounil
Bii iitJMidviiiitii^^eouSf that he s,skw tli to
, r^rirfHt^ In this action be had but one
d^ uni) severala of the enemy were
wounded,
r tilts advant^agc tb€ earl returned to
" AlilLing^ljtKs, and desii^uetl next
, little army to attack ItiviT^iniyi
T(\\\\ii of \t\jole ^vjis reckoned tive
ne tb« carl wassuircely
tfttt kiu*j;;'s fnf(atj» and
• eomingf up pretty
. where the enii\
■i tlie q;eiilletuen %rho
H carl to \rtlliin[Uf);is*4,
of Al-
ordering
Rumbttia and m Uunoan, to
meet him at tbe kirk of Cleudarule, if there
wiiji nerd ; which they did.
** Thus a second time the earl was miirrcil]
in hi^ design upon Inveraray, when it hart mosil
probrddy sueeee<ieil, thout^h the marquis off
Atliole luid double his numbers, since U|K>i|'|
thi^ small rutlle jrrcal uuritbeni of the marquis'M
men left hint. In short every thing' went erosil
the earPs desig^n, and that whet: just about to j
be happily executed.
*^ When the earl came to Allanffre^ in tliia
eriiical juucture, Ue renoUed lo ntait out fouf J
prizes he Itud got at sea, and thirty Int^tfl
cowans or fiishor-boatfs, with tbe thousand meaj
he had uith huu, and joitr hi»> own three sbi}isj
with them, and altack the men of t%artl>a* weral
c<unin;^ up ; but onoiher mutiny was rfti^ett^
aniont^ the seutnen^ by thowe hIio !»titl erobnr- i
lUttiied the earl, so the desig-u was cotirelyl
broke^ and the ei»rl forceil ii^o tiie uieiwures
those, who, co^i wtuit it would ^ resolved to bcj
at the lowlands,
*» Thus the castle of AUanjfrcg was left
tbe Lnird of I^apnt'^s, with asuificient garriisonjl
and men to guard the ships, and the tjovernorl
ordered, in case be irasnot able lo hold it out^J
to blow up the ma^a^ine, and either to dra«f j
up the sbipg, so as they mi^bt he recovered^l
or to .^ink them. But two day^ after theearf.l
with the forces had ktl them, the garrison fof^j
sook all, l>L!itti^; an tLey said, in want of pmri^f
sjou, leaving a U'ain of powder to blow up th€l|
ciiAile, and nei^lectin'^ the shiptj intnvly ; an4l
vibjch was wor»e, they Nt behind them thai
few pri Sonera taken at Orkney, who l»einj]j IcfkJ
at liberty, immediately ucquauiteil the captains J
of the Iriffats, who came ashore in loog iM>ats^ I
discovered the ti-ain, and seized all.
** No wonder that thi« vexeil llie earl, when ]
the t^arrison came up to him in his march, to* j
w»r«J the iiead of the Gare-Joch ^ and now no-
thing'was lell him hut to maridi into ttie low*
lands, under a thuuianddii^idvantcL^cs. In thfl
way they ruet and defeated several of tlio ]
enemy^s parties ; and such of them vtho es-
ca)M*«i, alarmed the country before the earl^ ]
and hii^itencii up the icg^ular forces, actpiaint-
hig them of the roa^l the earl had taken ; sa .
that when he cro^ised the vi^aler of Lf:«iu, a |
htlle above liunkbartou, he found all the king;'fl
army and militia upon him, treble to bim in I
number, aud iheiBtrl of Dutnbarton on their]
head.
*^ Here the earl of Ai^k took up % gfroundL j
which was ioaccessible und stfe, but they eonln J
not stay in it for want <d' provision, ny tlHMf ,
titiHenible difisions they lont another op|»or-
tunuy here, to have louj^ht a part of ilieir ]
enemies lieforegfeneral, cannon, ornnfmunitioiid
were come up. Tfiis was |»i-«'Hsi'd hy tbe carlj \
Inilhe was over -ruled. When all tine kin)i('s
up,and tliey nmt^t either do or
I'i bis councd of war.
I iM imiu ifi thcj^Miibuifu were fur march-
ing by the enemy, and letfin^if them (all upon
their iet%, which in tbe foresaid HmlH, iiny« th«
<2arl, would batu bteu present dekUrutitioiu
3 U
Ida] STAT£ TRIALS, 36 Charlbb 1L l684.-Ph»mfi0f « 0grimi [1028
The earl tod A^lieff were for eoj^ing, koow-
ing' todeed they were treble their number, but
that likewise they wanted not friends among
them. This was violently opposed by the
other side, as pertecUv impracticable, llum-
bold moderatefl their neats, and a night attack
If aa agreed upon ; but the earl was again over-
ruled and balked in that also : so that it ended
in a retreat to Glasgow, or Both wel- bridge, and
so towards the soutli.
*' Accordingly (ires were kindled, and men
left with them, which took so well, that they
S>t all pretty well betwixt the enemy and
Usgow. Several of their own number gave
them false alarms, pretending to see pvtiea
inarching towards them, and such like imaffi-
liatioaa« Sir John Cochran m charged ia the
printed account, aa being very instrumenlal in
diaooHragfiaff the meu, and pressing them to
■eparateanu flee ; how truly, I am not at thia
dis^Ukce to determine.
" But it is certain enough, their guides mifr-
gnided them, ami carried them near four miles
fdiout, and instead of lending them to Gbugow.
brought them down u{k>u ' Kilputrick ; and
fhe carl in thi; fbrecited Hints, says, he wae«
mile in the dark before he |»erceivcd the cheat,
and could neither help it, nor perswade them
le hah, to draw up, so that their retreat turned
te.arout. He stayed in the rere, and sent
Rumbold to the van to stoptliem, but, says he,
it was impossible, and concludes, so 1 was Icit
neuessarily to be taken.
*< At Kilpati'ick u few of them put a militia
com [Mm V to Dig tit, and hail it been p(»i»ible to
have rallied their scattered forces, they might
have got out of the reach of the enemy ; but
that u-as impiaciirabie, >%hen a go<ul many of
tiu-iiutelves uixi^dsepaiatiii^^and fleeing.
'* Sir John Cocliran, sir Patrick Hume, and
some other gentlemen went straight to Clyde,
and woi)l(l not so mu(:h as stay to reason the
matter with my loiil Aij^yle. Tliey were re-
ceived with the tire of soine of the militia
horse, when they came to the other aide. The
laii*d of Lapnesii, the laird of Barl»reck, witli a
few soldiepH, coming up in auuther boat, tired |
at the luiiitiu, and obliged them to bear off with ;
sonic loss, and ha\ iiiyf i;ot ashore, tiiey joyned i
the rest, and were pursued tor some time by |
two troops of militia, coiiiiuaiided by captaiii
Clellau of Frtsken. At Icnjrlli a scuffle liap-
penetl near Muird) k(\ in Lociiwinnioch, wiiere-
m captain Clclhai and some others wcrt> killeti, i
and the laitil of Bluir, (othrr accounts make it
sir Adam Bhiir of (.^arbt'irv ,) with so iu(.< others,
wounded. U|ion the olhf^' s.de, a treii'I.-man
of the name of Cainiibcl wiis Uillul. an.! '.njor
Ilenilerrton, and >Ir. Archer (of wlioin .itter-
wurd.x) was sore woinidi'd.
*' Having ^iven this account of uliai of.ssed
aince the earl's coming from Holland, i'lfurc I
enter ujiou the earl's personal inisfoi1i.:ies, let
uie sub)oyue here several other hints emu'em-
iiig this attempt, and particularly the eiuuunter
at Muirdyke, from a narrative come to my
bandy since 1 wcotc what in above, written by
a person of good reputation yet alive, who cmm
over with the earl, and waapreeent at the
Muirdyke encounter. ^ When we eclaail fna
* Holland, we were not above three hundred
* men in all, but had our three alupa laden with
*' good arms and ammunition, ne had a quick
( passage, but came to the wrong place « the
' kuigdom, Orkney, where two of our nm
' were taken. When we came about to the
* earl's country, a good many highlandcn
* joined us. Upon notice of an English mm
f ot war in purauitof ns, we went down a Utlht
« creek to the castle of AUai^|ic;^, where wt
* lo(k|;«d all our arma and pruviaMMia, and baii
* a fort on the west side of the caade, aid
* plaolediomecannott,incasethefriratiihoiU
< come down. We left an hundred and tkf
* men there, and went in queat of tbe maiqM
* of Athole's men, who constantly fled fron » ^
* Thus we were taken up several daya : noa
* while the frigates came down upon the caefe,
* which our men could not defend, and vtn
* forced to quit it, hiying a train to bfew alip,
* which misgave, and all feU into the encmi't
< hand.
<' This mightily disconraged the eaile,ioil
' we left piuvuing Atbole's men, and miitbed
' to the lowlanda, hopin|^ our numhen vtold
' increase. When at nigjit we weie 9it6ag
' our watches, a party of the king'a trospai^
' peare<l, so that instead of getting rtk, wc
* marched all night towarda Glasfow; aid
* after we had sent out for prevismi, wbwb ett
* very much wanted, the whole of the 1^^
* army appear^ ; so we drew up on a war
^ side, there being a water betwixt ua and then,
' being firmly resolved to fight them, thoufh
< much inferior in numbers ; but they nem
' approached us all that day. At nigbt ve
* marched ofl*, leaving great fires in our fbnncf
* camp, and our leaders mistaking the way, led m
* into a moss, which quite disordered us, so Uut
* though we wcie a gooil army at night, tbert
* were not five hundred of us together in thi
< moruine. Our discouracrementa beiogfrcsti
* multitudes, and RumboTd, and many ocave
* men who had no mind to part with ui, M
* their way. Those who kept together caowti
* Kilpatrick. We crossed Clyde, where waii
* troop of militia horse, whiclisir John Codw
< an<i Pol wart soon defeated, and made then rst
< more than a mile before they halted : Sq ve
< sent the boat to and again, till we bfOigt^
< over an hundred and fifty men, and theavt
( with the rest reiused to come over. On lbs
< south side of Clyde we refreshed onnelto
< with some provision, in a gentleman's boaM
* at the water side, which had beat de-
< sij^ned for the king's forces, and indeed we
< nee4led it, i'w some of us had tasted little tbcaa
* three days, then we resolved to march ia i
< body south to £ngland.
< But the militia troops we had cbaaed fit*
' the water side, had got two others jay*^
' them, and came towani ua, whidi maoe ei
' alter our rout. Sir John Coefaran dividaiei
* into three coopaniea, one. be
'ATE TRIALS, 36 Cii At L Ed IK l(>8i— #Ac E.o/Lmiimmsndoihen.ltOSO
E*bt«rart Uir other, find major Heo-
e Uiird. We w«Dt to attack the iiit*
I AeA, and vre saw no more of them
Ti, Ti, Twf» troops cuuimamleil
Lm, and toy lord Rus^i, with
mm, Limiie near us^ fvho now were
i to »U>tn scvt?nty, and attacked u< ;
oiif (^niijnfK and had Mr, Thomus
voundcif, A trt^aty wuk W\^im^ and
md iiiini-tprs, wbicli *ve rfd'iised, and
»i >y^^^ nltich was a kiud
Br^i I > I ifc^rc t lie V made u. furious
|I0I> us, wliereln oiptain Ci^^Uau nas
h1 renewed their »tlack, wlicrein we
I my hnl Hos* was in liaxard ; and
Hat had liaroess, would ha%e heeii
prero! othera \irfro, \Vc had one
\ ftnd two wounde<1 ; ^nd sir John
I two shots* whidi lighted on his
lid itfuiLirtefl much, but did not
PA'T " *V r:^ the enemj^ retiretl a
ft'' I na rouud at some dis-
yj (sa \ s the writer) cm-
*^e I\ir, Archer lyinq-^ who
t-iw*fuL»'iJtd by bis hltx-diny*. He
: herd's house, wh€:re the
i\i him» aod he was tulcen
burgh.
nij^bt came, sir John ordered us to
i miin the fold we were in^ in a elose
leiMknvmir to f'mve our way through
Binding they re^oUed tu^-uard ni;
Hvcirces should eotne U}>. But we
na retired to Kihnar»<H;k, and trn
fin^ about a day\ time tiigether, in
I Utilise of sir Jt^hn Cuubntn ht& la>
a pan bcariok^ tliut the carl td' Anv-yle
ij litr John dismissetl us, and wu »e-
atid Mbiiled for ourselves the bi*st
r4»uhl/
r
inif James |iubbaiheil the follow*
'lOn I
iMATfON AOiI?<ST TRAtTOM
Enres, JufXE ^4, 1686.
be
M3iD
le |T«c« of Owl, kinfjf of Great
ice, Ireland, defender of the
f Mttcena
i<rv cotiiiciU or niessena^^era at arm^,
iliiu tliAt |iarit conjunctly and so-
Meiatly consiituiu, g-recting : ioraii'
i^Khti^td Cam)d»i'), late lurl of Ar-
^nrch ami hereditary traitor) tiav-
^pm oib«r hia accurn|»U4:e« aud as
HDi of tbu und other nutiuus, com-
^ber to disturb our t^overnment,
iMu:«f aud trant(uillity of thi« our a»-
o, Olid having* UHWK;iHted to
C vik and sacriU^tuus mur-
iate archbishoji of St. An^
et) thai bloody mi>icriaut Iturti-
who w lis to have eaibrmxl
the Jiatired blood of our duarest
to h >»*'♦- Ot'en the principal ai tor
InigvJy, designed at the llye
in England ^ they, ptirs«atjt to their traiterou*
and wicketl plots and desiigns, having Itinde4
in some of our western and hi^hbnd islaudi^
and there pillaged and harassed our utfftplc
tbr a ccmsideiTible space by iijone ; and now,
after all their desperate emk^a^oin*, it having
pleased llmig^hty God to give oar tiii-ces that
t(»»od sucee^ over lhe»e »»ur edtsmies, as td
defeat and lolally rout them, many of otiose
chief ringleader!^ are now taken, and parti>
cuUrly the said arch traitor ArchibAld Camp*
bel, UumlKdd the malster, Joliu Aylief, called
colonel Ay lief, (which last, out of the terror
of his atrocious g-uilt atid deii]>air, endteavoured
to kill himselt after he was taken, by giving
himself a wound in the Uelty with a kmfe, ia
tlie prison of our hnr^i of Glasj^ow) and
mauy othera : and w hereas there are several
of tbnt hpUish crew not yet taken, who may
skulk and hirk in this our realm, with these
of their party, aod he shelici'^d by disaffected
persons ; and we^ being residved to prosi-cute
und pursue thiwc execi-ablc rt bels and irnilors,
uulii tbey he apprebruded and broi»*;ht t*
eundi^n putiishtiunt, do hereby, with the ad-
vice of our privy couuiil, require and com*
mand all our lifood and britif^ subfifcti, aiii
particularly all our sheritTs and other magia*
tfatet, amf theoHicers of our siandiiiff fbrcei
and mihtia, to ukc their utmost eudeavoui^
ibr atipi^hendiiig tlte aaid rtbels and triiitortf,
and hriojcin^ them to juKiire ; and for that
etieet, to convocate otrr lieges, and use «K
other warlike force against them : and lor
tlioir encouraitfemcut, we btrei*y not oaly
irtdemndy and fully pardon th<?m of auy
Mood, sluu£fhiCM', uiutilatiou, lire-raism^, or
auv.h like inconienit-m-iej^, which may tail out
ill this our service^ hut we do hereby pro-
mi««e and assure any per-s^m or |K;r*ionK, "ho
KbadI upprihrnl tifc pt'}*stins uuifi-r^riHen,
dead or ahve, or disL-over tliem so as they
may be npivrehnidcd, the revvanis foHowinjt^,
viz' For Joim Cochran, sotn^^ttmc called sir
John Cochran id' <Jrhdtre«e, Patrick Huhic,
sometime ealle^l sir PalrK-k [fimie of Pol wart,
toileiied trititors, Archibald C^mpbel, son to
the lord >^cil Campbct, Charlts and Joliii
Camplnds, sonsto.tiie said arch traitor Archi-
halil Campbel, Pring^le cd Forwoodlee,
sir Duncan Campbel of Auehinbreck, and
carb of them, the sum id ei;^hteen hundred
merks 8cois iiioney ; — — Deuholm of West-
shitds, und liulfour, and Fleminar,
murderers and asmi^ues of the said late arch-
bishoii fd" Hi, Andrews, Wdliam Clevehuiif
culteJ captain L levehmd, und — 8tiiart
yoiinLjfer of Cultne»«, g^rundcliild to sir Jauunt
Sluart^ sometime provoM of Edinburgh, and
eueli of thcm« one tboustmd merks money
for<*said ; for IVisheart maffter of one
ol'tbesbip!i who came alooi^t with the said
arch trai or Arch. C;im[»bel, 6LK) inerKs, v^a^l
tor every tknaiical preat'luT wiio >%ns wichltte
said rrlMfls, 1CKX) inerks money tores nd. A(kd
we lurt her declare, th.it d any of oursulyecfa
shall be so des|»cnitety wicked, an Ui hurbouTt
1031] STATE TRIALS, 36 Chaeles II, 1 684.— Prof efrfm^« ^g&imM
* reset, entertain, imereommtiDe, cafiveree^
* c<jrr€sponrf Wfitb, or comf(>rt any of ihe said
^ nersoii*», Hiiy manner of way, orsbull not gire
* ilitc4litft»uce of ihvvn, or shuil oot {^rvc their
* asslsiunct^ atrai»«l them, thiit they shall ht*
' lioldeiif lepuip, irt^nU'dt oiid ilemeanal nil ami
* pan vi\ and acrt'-ssory t» the suit! hotriil
* crime ot Ireo^jon on*! mx^llion ngnitist us, and
* otjr royal «'overumcnt, with tlie litnifwst seve-
* nty of law. Ami j^nerally, ve hereby pn>-
* hUni and dischurt^tiatl our subjects, from har-
* h4»urii)i«:, resttlio^, lodfftiig, or entertaining
* any peisotts wjiat^^neircr, iinlc^is ihcy Iia%e a
' pass from tbe?«e nnthortzed by our foraK*r
* proclamations to pTant the same, as tbey will
* ansMfr nt their bigbe^t penL And that this
* our plear^ure may hv known to all our lieges,
* our will is, and we charj^e you stricll v anil
* commRud, tliat incontinent, these our letters
* seen, ye ^lass to the market- cross of Edin-
* burgfh, LtnlithiLrow, Stirlinj^^, Lanerk» Air,
* Renfrew, !tntlierg^len,<ilas|rfiw, lr\iui, Duni-
' btirtoun^ Ui^ttmn, Kirkcndhright, Dumfries,
* Inveraray, and all theotber market -crosiJ us
* of the head bur^i^ns of the Fihires of this kinsf-
* doni, and there, by open proclamation, in our
' royal name and autbt^rity, make publicatioti
* ol our oleaKure in the premisses. And we
* further oereby recommend to the ri^ht re-
* lerend our archbishops and bishops, thai they
* cause this our royal proclamation be reaid
* from the pnlpits, by the ministers of the fie-
* vcral parts hcH in their dioceses, resj*ective,
* U|M>n the first Li>rd's-*lay aflcr the san»e jihall
* be delivered to them ; rer^uiriny hereby all
* our sheriifs, to cause publish and deliver thi!^
* our proclamation in manner above said, iui-
* mediately after tht same comes to their handsi,
* as they will anstrer the contrary at their
* hi jf best peril.
' Given under our si^jnet, at Edinburgh, the
* 21th day of June, 1005, and of our
* rcig^ the first year.
< Per actum Domiuorum Secreti CooeJlii.
• CoL MACKEszrp, CL Hecr. Concilii.
* God save the King.*
**rochran had a rich fether, theeaHof Don-
donald ; and lie offered tlie priests 5,000/. to
iiave his son. They wanted a stork of money
^itr manng"iii|T tlieir def^ig^ns : solhey intei^posed
FO clTeiiuHliy, that the bnriifnin wa*! made.
But^ to covcf jt^ Cochran pctttioue^l the coun-
cil that he misfhl lie sent to the kin*j, for he
had some secrets of g'reat importatire, %*^hiclt
were not tit to be conmmnicateil i<> any but to
the king himself. He i*as npon thai Uroug'ht
up to London ; and, atW he had been lor some
time iu private with tlie kjntf, the mattors be
had discovered were said to l>e of such im-
portance, that iu eonsidc ration of that the kin^
pardoneil him. It wa<i said, he had discovered
all their ne^eiations wirh the Elector of Bran*
deoburijh, and the Prince of Oinnge. Bui
this was a pretence only given out to conceal
Ibe bai^'iin, for the j^riuce toid me be lia*r
never once ieen him. The aecret of this cam
to be kpown soon after/' Biinict.
1 know not what were tU<? tmnwir«iiw» of
lord Ml Ivde in the interval between bit «*c»^
ing" Vo Holland and the |?*'ioiiiilnn 1 i!«in,A
find that he partook in tl
j^yle: his name is not iU'
persons alteinling the Council hcbl
dam, A|»rn 17, 1655; nor do 1
amonir tho?»e of the nobility, wKm iu» Mink
lf», 1689, subwcrilii d itie ' T><^H:iral»on nf ^
Kslati*»* conrcrninjj kinijj ' 1 ;ni«r. Hit
was ktnfif William's con in the li
nnd :^*\ sessions, 16<M), of tint > m:' ^^
ment, but soon dis^daeed to < i
vour of the Episcopalians. Se*.- 4 L^aiii^. iai
The fidlowinjr are tbc Deciarftlioos w^
tloned liy \Vo<lro« 1
DECLARATION or tub Eaio. or A^cro,
wnu THL NoBLr.MEN, GtNiue.M&?«, Sec 1 '
They imist be at ton-ether Rlrafig«T», '
little eonct med in the chriMitm worliif »**
(after all that the nntion« and rimrclff»l
have seen, of the Lord*$ mig-hly hand til
stretched out arm, in the l»*t*' unr^ hn^uX .
kinij Charles 1. and bin j»eanb
of Scotland, Eni^land and in I
then conspiring^s of [H
ruin < f true relicpon
advancement of the K;"^i"
liOifl Jesus within these I
upon ensueil, witli the gt lu . ..
and security of all the pi\it
abmad, that i hence redoundetU
rooted and firm loyalty of tbe
whOj oolwititstandmgof (heir lr»fi^« bt(
fatal contending^ with the fat J ler, did yt,
reason aide, fair and Just irt-aties coi
with all the assurance that cither
honour, or gratitude could promise, eall fcai
and restore Charle<< IL ht« sou, ti» hiir throM
and empire)* are not fully convinceti and ta^
fied, that, considenriir the per|»etii3d ei«tli>*
dicljngps and couuleractingfs nf all tbete 9»or*l
and st)lenm enslavements, that immedisliifi
and ever since have been practiced, ihc*Wt
reiffn of the aforesaid Charles II, (through ifcr
stms^trous and subtil iofl«em*es of a wicked mni
popish party, now manifestly discovereit), «*»
a constant and uniform course of j^ffj'in,
aposlucy and violence* begun with o|icii t>-
liellion aifainst Got!, the reseindin^ not only -i
particular Inws^ but by nn uTipamncled^ et^t
un politick and pernicious device of whole un-
exceptionable parlbments, for tbe eptcf *<
twenty s(^Ten years precedmg", nortwithsLKxl n^
both our i-elifirion and liberties were therrr.. <
pressU J Iq^ally and well provided for. and the
cruel shevldintf of the lw;st protestant blooJ^ •
the most unjust execution of the laMt fn«f^
of Ar^yle, and many other worth ica coptriry
to all law and reason, earned on by the amiJaff
and casting out of more faitbfiil and pi«ft
] STATETRIALS, 56Charles IL l6$4.—tke E.of Loudoun and othen. [JOSt
ore, and scattering and dissipTvtJng- mDre
lie rtockj* and folbwers of Christ, tban was
done ill most of the t«n primitiit! ppr-ecutious,
mnd the *Sehiging of these Itimk with all
▼ilkiinoiis debaucheries and abomiDablp hceii-
DsoesSf to Iht^ very proflhyating- of conscience,
*" Jily and comumn lioiiesly from among
and tht'iice forward accoiiiplisheil by a
unrelenting |>fersectiiion, ami r»jiprpssJoii
tlhe gentfnility of God's peo|f!e, in their
C!eocef»t jx^i^ ms aiid e?itatijs, wiib vexatioiis
rigours almost invrechble, aod that for no
reason, but because the}' eouhl not
re!y com pi v with ihe<!e notorious perfidies,
the manifold piofnoaiioni^ and mischiefs
pre with tliey are attended,
lut this hellish mystery of anti christian
|uity ^od arbitrary tyranny, imposiopr u|>on
Dy at home, too willinsf, throucfli their love
fcase, to be abuseil, ami deluding the pro-
''ant churches abroad (in that woful and
ble iiidiflerence that every where reigns) by
I vain pi-eiext of the mere notion of our courts
ply and simulate protestant profeshion,
brng* of a long time, ander (lie late king-,
de most remarkable advanre^i in the follow-
^ particulars, and niany more that mig-ht he
uerated, all too evidently seen, and lieavily
to uet'd any expUcite proof or demon -
^lEtratton.
As Imo. Not only in the aborementioned
open and avowed revolting from Gr^d^ hy
lireach of sworn treaties, covenants and eoriA
nation oaths^ and ^li^hti. g and deiipisin^ sikon-
tnocoos pronuses and procliimalions, the over-
turning the very foimilaiiikiis of parhanienls,
ftfhd ran versing, at one blow, our best and mo«t
lrgp.1 establi^hmcntts - the ungrate, as well a»
unjust pot ( I ng^ tn death of most innocent untl
fWithful men, upon absurd preiences, eanvelled
by the laws and customs of nations, and that
in ill e time of (iod's greate?5t induhjjence to-
wards ihe authors; the desolating of the
chttfcheSf and changing of the ordinances of
Ood, for setting un ilie frtvf>lous and super-
stitious inveniionsi of men, the coimlenancinjj
and encouraging all rice and profnnity, and
J^kte violent and grievous persecuting* of all
cience and conscientious men.
Jut next, aivl more particularly, in the eon-
ling at papists ihcir meetings and idoluirous
ses, while, in the mean lime, all proteslant
Hcou for mists are persecuted with endless
erities.
Hie raisings keeping up and increasing of
ding fbreea, the very bane of all civil and
ful govcmmentt and that without anV other
isnre, save what the indigence of' c-<»urt
dry and proliision did necessarily put unto
he declaring and appointing' a!l judges and
officers to enjoy their ptaces only during
pleasure, on purpose to make them more supple
and compliant to all their master*s designs.
The abusing of the great trust of calling
and diAolving parliaments, the most high and
' court* of the kingdoms^ hy iniquous
packing, unseasonable proroguing, pernicitm»
discharging, aiiil insolent bafHing Ihciii at
pleasure.
The exalling of the king's sunrpniaey, under
the colour of his p»^tea<led right and piiwer,
about the external government and policy of
the church, to an expi"<'SH and alisulute power
of enacting and statuting in all church-meel-
mg^ and matters, as lie, in his wisdom, stmlF
think tit, a ready and prepared tool to bring utt
back, not only to pojiei'y, hut to paganism.
The strange perversmn of the nigh trust of
the militia, committed to his mfljeslyr expressly
for the protection of good subjects, and the
assistance of all our protestaut friends abroad,
only to tlie invading anri o[»pressing, bv law- *
less hosts of the woi-st, both of llii^hjanders
nnd !/Owlanderis, in times of profound peace,
the best parts of the kingdom, purposely to
ruine them, because too protestant, by free
quarter, and other illegal exactions, and the ,
making war most causelesly and obstinately
against tlie states of the United Netherlands,
our best neiirbbonrs, and the strongest bulwark
of the jirotestant interest.
The tbrcing of poor people, by the extremtt
rigours of exorbitant tinings, imprisoiuQnrgj
tieatiiigs, stigmati^]ngi9,spoi tings, banishments^
and other violences, for the simple cause of
nonconfonnitv, to take arms in their own de-
fence, as at l^entland and Both wel- bridge, and
then demeaning and executing them, what in
fields, w hat on scaftolds, as the most ilcsperate
of t mi tors, and, at the same time, involving
whole countries, upon the most slender and
absurd pretexts of inevitable interc<»minunjngi
and reset, both in their crimes and nunishinetit».
The setting up the most violeni and oli-
noxions of men to be ministers of the law, and
packing juries and assi/es mo^t partially tor
their worst ends.
The straining, stretching and wrf^ting f>f
law, not only in prtjndice of every one sus-
pected to bcdisatrected to their evil coursts, but
the violation of all right, for Sipoitiutf and
rtddiing cities and incor|>o rations of their an^
cient and undoubted privileges.
The transporting of fresmen, as staves, t<i
foreign plantations, for not making faith to an-
swer (against law) super inquirenJis^ as (\hQ
for not delating men upon oath (acccirding to a
most impious law lately made against noncon-
formists) in matters, wherein the pnrtv, put to
swear, judges them to be in their ifuty, and
without exception of his nearest relations.
The arbitrary imprisoniiigs and rlctainiug of
free subjeets, without either bringing them tci
trial, or allowing them any hearing.
The torturini^ of several persons, even fivo
times more, ot coniM^ienlious nonconformists
within these twenty years, than of all sort* of
febms and malefactors in Scotland these hun-
dred years by past, and that without eitlier
Just previous grounds, regarding of legal tne-
thmls, or observing the measures of commoa
humanitv-
The eficiting of promises of indemnity, and j
1035] STATE TRIALS. 35 Ch4RUE1 IL ]ff84.— .
the poblic fiiitb interposed, for that effect Tolan-
tary confessioiis of some, as of Mr. James
Mitchcl, 6cc. aud then nut only retracting and
disowning the promixe and condition upon
oath, in face of tiie Justice- court, but farther,
witnessing the confession to the poor man's
condemnation, notwithstanding the books of
council, rontaining the foresaid indemnity,
were produced and laid open before, and at tue
f ery time of their swcannj? : Like as, of late,
after most cruel and exquisite tmlures prac-
tised upon Mr. Spcnce and Mr. Carstairs, and
a full and ample promise thereafter made tbem,
with an act upon it, that neither tbey, nor
their evidence shoukl ever be made use of to
their, or to any utfater mens hurt, they never-
thelan cause protluce, and do sustain Mr. Car-
■tairs's deposition against Daily of Jerviswood,
for an aduiioicie or aid to their lane and de-
fcotiTe probation.
The making men offenders, yea, traitors for
words, and these true, fair and innocent ; as
the earl of Argyle for declaring before the
council atler leave given, and with submission,
and only for eionering bis own conscience,
that he nelieveil, the parliament intended no
contradictiou in the lest, and therefore was
willing to take it iu their sense, viz. for secur-
iag the Protestant religion, and that he did mit
thereby mean to bind up himself from endea-
▼onring lawfully, in church and state, what
religkm^and loyalty might oblige and allow
him do ; for which words nevertuelew he was
tried and condemned, as a traitor, in the loss of
his life, lands and goo<ls, and stands de fucto
deprived of bf»th lands and goods, having only
saved bis life, in the extremity, by a gracious
providential escape.
Tbe crucll executing to the death of several
hundreds within these twenty years, besides
many (lundreds more, that liavc either fallen
in the fields, or been made to perish in their
imprisonments, or trans|»ortations, and tliat for
the alone cause, or ou the occasion of their
conscientious noncoufbrmiog : and some of
tbem (of which number several poor women)
for their bare opinion about the king's breach
of trust never before by tliem vented, but sim-
ply declared upon examination, and most part
of^ them dispatched with thut barbarous inhu-
manity, as that Rafter no belter example than
that of the bloody duke of Alva) they were,
by beating of drums, hindred to spcalc to the
people their last and dying words ; and some
of them, contrary to the perpetual custom of
Scotland, and all the forms used in the christian
worid, and as of it had been on design to destroy
both their souls and bodies, tried, sentencol,
and put to death in one day, yea, the time and
hour of their death industriously concealed
from them, that they might be cut off by a
more mortal surprise.
The condemnii-g some to deatli, otliers to
the boring of their tongues, azid fining many
in most exorbitant sums, even to 100,000 poun«Is
sterling, for calling the duke of York a Papist,
QotwithstAoding the notoriety of. the matter to
[M»S
all men, and bis recusancy fbund and dedani
by a grand jury, and expraariy nippond bjr aa
exception in hn fairoma, eoDtained u an act af
pariiament, and that now he goca openly ta
the Mass, and marches in solemn procawoai
to the horror of all good Protestant auigecti.
The loosing and exempting tbe king'a soss
and brothers from what themself es oonooftd
to be the best fence, and greatest security ftr
tbe Protestant religion.
The imposing and pressing of nntha, wihotf
law, manifestly oontradidory, and that by icTi
rible menacinga, violent beatings* rignrausisi-
Erisonings, and irrdigious swearings, ns \m
srbarous than what was iNrMtised by ihe
Spaniards in christianizing the wild Indiana
The eating up of men by free quartsnii tr
otherwise fiuling on them by downright ris>
lence, as driving with drawn awoids, ts en-
strain them to hear, whom they, in thdr en-
science, judged unseut and uncalled cnretM^H
the effacing of all conscience, and open nn
of God, and that pure and fvee ndigioD vbicb
he only accepts.
The compeJiing the heritors of fhiratti»*
sesB themselves and Ihe ft«e suliyeclB wtim
their bounda, a thing ezpresly denied bj hm
to the king himself, and only resert ed Is pv-
liaments.
The soming upon, barassinff and deih>)i^y
the best parts of the countir by four cartniR^
dinary circuits upon one ana tfa!e same a^icI
of Bothwel-bridge, on purpose, as it were, H
justify his highocss's judgment to bis latesA-
jesty, that it would not te well with Sootbsl
until tbe South of Forth (the better and dor
substantial half of tliat kingdom) were VonA
to a hunting field. Aud to verify the bUe cfasB>
cellor, the earl of Aberdeen, his affirmatioo it
tlie council-board, that there was not a ls)il
subject westward of tbe castle of Edinboixh*
The industrious stifling, hindering and dod-
ing the detection of all Popish Plots.
riie shamming of mocK plots upon gooi
Protestants.
The suborning of witnesses, bounding ool
and encouraging of assassines to murder ui
cut the throats of honest men.
And generally in tlie studied and coutsBl
ensnaring, or ruining, upon every sbaduw of
pretence, all esteemed either fited to tbe Pka-
testant interest, or well affected to their coup*
try's liberty.
Tliis wicked mystery, we say, and conspincf
of popery and tyranny, inse|>arably twitfH
both in experience and reason in all their at-
tempts up<>" these freox and mighty natioai,
so unanimously unite<i, and firiuly fixed ii
their contrary profession, rights, and liberliei,
having made su gi-eat a progress by the hVtm
aboveinentioued, is now at length o'ldeatly
disclosed, revealed, and brouglit to full laata-
rity, by the most suspicious (though aitbil
most ingrate) cutting off of the late kiiy, ■
having mdeeil very unhappily acted u ibrt
part of which the conspirators did judge hi*
capable. The MC>ending of Jamea
ttifet hi
a ftpdstoU*, a ail bii^t Papistt
iiw, tiotwithstanilinfr IiIa hem^ ttirice
- omrnoM t>r Kn^liincl 5 ant!
4 ill giveu, nor cmn jri^«?» wiih-
b> iim4'e!Qsion, auJ contetnfitibie to all
\> !n? onth ftnd security lUilis-
1 of tum^ belivre and at bis
ncnt. Jmii, 6* |». I.e. 8,
nf t^«o paiibnienu \toib called
in ***:*":" m'jI by Urn own rigilant
IT, ( ngfitto bit eti'dcietl in
ti by bin inthntkin)^*
'ATETRfALS, 35CHAEtESlL \6S4^,^theE.afLmd<mnandotheri, [1039
hboire aUJ, ib€ in<'9tiimablo blessing of our pure
religion, to the elFtci that ibt? ssiine pure rtli*
(v^iohi \rilh ourjut»t ri^ljtiiaod libertieni, so r«-
liantiy aiscitcil by our ancertore, iimv be b^
us faithfully tnmsuiitted to our poslcrilSev.
We liave been, und are obliged ft*d con*
strained by extreme uece^sity, and for commoii
salety (ih© supreme laws) to take up just and
uecetBary aruis iu tlie name and f ' ' -< eat
GkMi^atid tbecoiilidcncc of \m tw i^f
aoce, fur our own aud our counti*) ^ 1 •.nti . trom
the «forcsuct most ^evous and intolerable ty-
rannies i&od oppreasionti, tbe defence and re-es-
tHblishrjientof the tnie and pure Christian reli«
sjiuD, commonly culled Proiestant, in opposition
to tbat anti-Christian Roman religion com-
inooly called Papistical, and the recovery and
rtsestablishnientof all our Just rig-bis, liberties^
aud privilegres, accoixling as wc stimd indis-
pensably obliged thereto, butb before God aud
DitD ; t^ml ilnit againat tbe Mi Jamet dii1»
of York, and all other his iLccompUces, our
mofil unnatural a'jd wicked enemies aiKl op
prenom* ^
Hflsirtngf ia the first place to bedeq^yiiiitn-
bled e«ch of as before God, for mtr raantfold
sios aad proToc^ktiona, txpecially our false*
bcartedoess, ami unsteailtustness in, and revolt-
iDgs from our g'reat aud mattifeW en^pijemenU*
to him, that abte haf e brought upon us all
these sad inisebjefiii, earnestly, and with Oiot* ,
whole hearts suppiicatiug;', that be wDotd ceflli»«
fmiD bis ancer^ cause bis face to shine upon lot^
aud H«ire \m for his owa oame^K stake*
And ill the nejtt place deciaiing, lilcea*! ww
her ehy e!rfvre9«}y ileelare, that our sincere antr
single entift aud desigfos in thin oar undertnkin j»
are IJrst, the reslonn*^ and settling^of the afore-
said true, reformed, Protestant rt^ligton, in its
pofpep tad purity ; ami with such 11 just com-
prehensrou of pore Christian charity, as may
thrmt^^K tbe^o^Kl hand of oar Oorf upon us, be '
truly satisfy iuj^ to all that fear hitn , and lore our
iiord Jeeea ChrUt in sincerity, renouncing aud
deoe^i^ as well im{>osin^ti aj orrofK, m all
ruttrters of conscience, aud trusting' thuf, atlef
the manr teaching tTperieiices we hare had,
we shall be for hereafter preserved from all un-
happy mtsundersiandiug^ ; but rather through
the spirit of truth, love, and pctcce, gmclotiMr *
led into all the paths thereof.
Idly, The suppression and perpetnal excln-
siutief autichriHtiffn Pojiery, with all its idota* ^1
trf»ii« sufwrstitiont* arid falsehoods, as aJ«o iia*
j most bilter root and otfsprinfir. Prelacy, with its*
j new and wicked head the Nupreniacy, and all
j their alJu.Hcs, tlint so not ooly the g-ospe! «iid
work ot O'kI may be rerived in tbeae lands,
I hot also all the churches of Christ al>roatl;
Ibereliy refreshed and strengtbened.
And'sdly, The restoring of all men to theij?-
I just ri^j^ita and liberties, especially the recom>
t tensing of all sutfttera, whether unto blood, or J
OSS of lilierty aud gooils, the relief of such
who are m present diMresSj the remof iug" of ^
all oppression, and establishing such righteou* "
laws and methods of gnvemto^t, af my be^
I tor the future, not only all luenibers
Hient, Imt also all their electors should
r cenlradtctery and irreHgious oath,
bjCmUed the test, which no man own-
^Mi^ or earing for any retiLpou, can
P^pife) long since prepared lor all his
' Aud thi? otljer in England packt,
^nd returned by all the arts and me-
i either fraud or injustice c^uld in-
^nder it pliable to hia intentions ', and
1^ will c^ol with all the fair
ofev ef lawi», tbat can be
both the Protestant rehgion
profidiug they will but give
answers all things, und which
luredly frustrate and ranverseall their
eiie« Tbe pursuinji; with indefhti|*a-
r, ev«D without the btuinds of the
^ aed m all foreign parts, alf honest
^jed for tlieir lives, and that either hy
flresecs or private violences, so that
nrrcaeandy reduced to that fatal di-
illter to Jo, or die. The entei*iuir
i enteHatniti^ m<>re close corres-
llHajt at any timebelnfe, with Po-
rveaiid states, especially tlie king of
I mo9t riotonons enemy both or the
iei» and liherty of mankind. And
m thmt may be alretidy seen in the
rations he hath lately made,
erealHT may be at»f>rehLnded
' M-k,^K r.iiM'.in -Uvaysbreath-
aggot, mur-
; 1 andenraif^ed
and reigning in the most dt-
iiKV^. »nTjiie^tT«>ruib]v o^ipftble,
iidtfei.
M-r paU
u« or utti'xiy iucoiisiUent with
e«f endn of government, lender-
th our common cala-
riidw 10 he its protector,
I ' ^ I'ify im-
11* of all
^iiiMii;ti iMv I (HITS have
ind cut asunder; aod
•iM :dl diHtniirted snb-
I'l V 0%'ei'w helmet I by,
hen alter fesir to be in-
i, tbat unflouhtrd right
Cod II 111! tutliire, with
ir ' iiMotn of all
f titig, defend-
r li¥es iuid iil^rtiea, and
^'^T^fff^-"-
las
» •ii4 ooaoar
•pprmicd bretfareo and fnendt, fa EngUndittd
iNlaod, who, ftom the like reasons sad mo-
tivesy shall be induced and stirred up to the
JQce undertakiofjf, for the same or the like ends.
Wherefbre, we most seriouslj^ and humbly
beseech and obtest, in the bowels of our Lord
Jesus Christ, all that lo?e his truth, and this
our rigliteous cause, none excepted, though
either formerly little concerned for, and Avour •
able to us and these inteiests, or even still in
actual opposition against us and them, (their
sincere repentance being at all times to God
most acceptable, and not to be better witpeased
before men, than by a contrary and yigorons
amendment) to come and jo^n w ith us for God's
glory and j^rospel, our country, lives, rights,
and liberties, and our posterities, and all our
bone, against an apostate papist, an nsurpiag
and persecuting tyrant, by the most sacred ar-
ticle of his religion, our mortal enemy under
the pain of his own damnation, and by the fun-
damental and express Jaws of the land, Jam. 6,
p. 1, c. 9, and p. 20, c. 5, incapable of the
meanest office within the kingdom, and in ef-
fect a declared enemy and rebel, Jam. a, par.
8, c. 47, and who e%eii by the act lately nuule
by himself for pa? ing the way to his succession.
Char. 2, pari. 3, chap. 2, can have no shadow
of pretence lo the benefit thereof, unless he
first inHruet himself both ta be the lawful, and
the immediate and nearest heir of the crown,
whioh without satisfying tbo old law, Jam. G,
pitfl. 1, chap, 8, ai th« aaiae ijoft ratified.
brBOoand maitaio t^e tniw. wfcwMTfwIw^
tnt relknoB, he eao asmr MHftIf 1ml wMi.
tbeo £SBcdy miaaqploa MiMMl ly lb
principal ftaneit of UMinMI» «M iV^ ^
tbaliArd, wba fritt.iMtgiy«hi»gmy t»«-
olber, hath tacuwriy get hinwidf >yiaaBiw>
" mt nataosa, wImm mm mm
ooIt hifa andtdl, and
enmirai or choir hando- bo
Lonlof Hoolo, «bolooai
tho oocth, ohaU ariMi aMt dMl ftf^
this our most oornoil ooD 01
fidemljbopoiholl bote
konod hdIow oad boortily
plied with, tbofcbtboMOfcra
mgofQod,it ^'
ii
KM] STATE TMALS, 3irCKAii» IL46ifc^*ffrmiiM|gi %bM/: '{M0
If 01 hborty ond ^pnjptstj^ wsui
OBd oqoalitj.
thiogo as wo porpooo and hope to ae-
j 00^ throoffb jtbo preaonoe of oar
fwitb OS, and his bleasiBg opoo ua^ so^wo
orOfBOilwillHigaod tooolved. thot ther ba oil
^Bitled.OBdporiMed by a fkoo, full, jooC, ond
oorsioigD BepresentatiTo of all tho praoent oil-
^ortakon, ond ouch OB shall beraaftflr sfaieeroly
r ond toke port with us ; and that in aMA
4 ways, aa God by bio good provi*
I onlir OMMtboppily direot ond oooduot
, doeteringaDdproloitingfiivther,thot
oiM soiidi bave beon, and are the monifost pier-
4dT, trsoobory, ond ftbobood of our odvor-
oanoii not 00& in their treoties and oovomuiIb,
Imt iJoo ifk tbair pardooa, indooiDilieB, ond m-
dalgoiuMO, 00 thai tfaeyloafo nogroondor
tolorobioovBfoneoof foidb ond tro^ tobogifon
Op thov, wo will never enter mto mxy lenii»of
^ gopitubition, treaties, or oonditions with dioni,
lOpto the great endo of this undertaking; but
oa the controry, proooento tbo oamo wUb oil
ffcoli^, cQiiBtancy, and vigonr, without any ao-
fflialMD, diviaion, or bocfcdrawing, nntil thoy
Vp^vftotfy ond finaOy obtained. Uponwhiob
frMado, and for which endo obovemontioiiod^
mm not only hereby oiost anioenly ond fimily
pojijoland docfaura, aa m the preoonoo of God,
cwaatintly ond porpJetoally to odboro, jto
ond.noiotoin one anotb
ogaoHl an deadly; botdo
MirtayroBolToaMl oiigogooiinolvoa,to
rwiftou^
OS ivudifi proopontyt-oM ^^^lI^
tbooo king
graoodnoliooorbiittfao i
tocCioa oftfuonligkM ondliboo^ i
(Britaa'o eertam and gnot ialonri^ tCkli
tbo
CboiiinontboooitC
liot 00 tbonfevo be of good cminijii^ wljl^y
tbo aso» file our poojlob ond fiwr tbo BowiOKm
God; ooil dio Lotd do tbot whirih HMfibbb
good*
Amtu^ DacuuuTioN Tom yssasu.
I shaU not mention my Caoo pnUiriMlal
printed in Latm and Dutch, and more Iscfdf
m Eng^Iish, nor need I repete the printed De^
deration, emitted by several noUemen, gooit*
men, and others of both natioiis now insnai;
but because the suffering of me and my toilf
are therein mentioned, 1 have thought it fit w
me to declare for my self, that as I go lo am^
with those who have appointed me to ooodaBl
them, for no private nor personal end,- aad sal^
for these contained in the said Dmlsisili
whksh I have concerted with tbem, ant ip^
proven of; so I do claim no interest, botww
all personal injuries agamst my person or §»
mily, to all that shall not oppose, but joyo mi
concur with us in our present undertanagtfil
the ends mentioned in the said Dodaniiidl
aad hereby I oblige me never to pnrrae '* ^
Andlfi
in judgment or out ot juilgrocnt.
declare, that obtaining the quiet and :
possession of what belonged to my £
myself, before the pretended fbrfatare, I iW
satisfy all debts due by my father aad mMlf
as far as any heir or debitor can boohfigeL
And as my faithfulness to bio fato ■^i'*'
and his government, has snffidendv apfSi
to all nnbiassed^rsims, voidofiiiMM^ool
with grief acknowledge my Ikmm loOji
U] STATE TI11ALS,3C Charles 11. iGU.^ae Kof Loudirnnandolhirs, [1019
nplyiog- with^ «ntJ connirinsr al the raclhods
en taken to briti;^ us to tbc said coudiiion
\i^^^^ 10, thftnirh^ God kuous, never culi-
J lo the d**si|fn.
Jiaire now vrixU Cod-sBtronjjlK suftered jm-
pnlly mv imjust ticntence and barnshment,
shears uml un lialf, and never otTfied to
idaWtici", by the lllh »ct of psirliameDt 16G9f
can only be June in the case oi'acUml vW\n^ ni
tiru)s^ or eke to df nmince llicui tu^^itivcs, the
privy coinicil, n|u>ii a bill g\%'i*n in to tlieui, in
their bcbalK* rccommtnd^^U to llie jusljceij la
continue tlie diet rcth'im^i (Lim liirsomc com
peteut space. Aa ^q tlu* 9th AprU^
QuyupfQQror ilctencc by arms, to d is- | the cimncil's recfs on bettig^ lead
tlie pence upon my private concern ; Intt ; in thfl crimiRnl court, the justices continui^
being now dead, and I bed nkeot York j the diet agtiinyt Ijoodou and Meliii till tb«
2d Monday ot Norenobf^r iui.\t ; and ordained
tbeni to find caution for thrir apjK^arance tlm
first Tuesday after l^IiehfirlmaJis, othci'wise to
be declared and denounced ttjptiveft. But fh«
justice t^^neraJ and king's adxocatet^aTc three
ffeueral Rdvtirti&emeut&, 1* That they Moidd
f^itig taken olF his tniLsk, and bsi\in^ aban-
ped and imadetl our religion and bbrrties,
liolving- to enter into tlie cf'J^erjunent,atid ex-
tise it contrary to law, ) think it not oidy
', but my dMly* to God and my cot*utiy» to
my ulmo«t endeavours to oppose and re-
h is usurpation and tyranny ; iind there- hereafter admit of no crrtiAcaies anentanab*
^ ^beiDg' assisted and furnislied very nubiy by
^eml jjofxi Protestants, and inviied, auci ac-
' apanied by several s of both ualiMis, to leAd
* resolve,' as God shall enable me, to use
iistance of all kiud, toward ibe ends eac-
lifi tile said Declaration, I do hereby ear-
ly invite and obtest all honetrt Protectants,
I particularly all my friends and hbjotl rela-
B9, to concur with us in the said undertuking.
And a* 1 have wriUen fseveral letters, so
iring no way fully to intimate my mind to
lers, I do hereby rerinire all my vassals
ery whenf, and All wit bin my several juris-
'lluns, with the ietieilile men within their
to ^o to arms, and to joyn and
[with us, according to ifie said Decla-
as they will be ans^verable at their
t perils, liud to obey the particular ordei's
"I receive from lue from lime to tiuie.
Jhllnwlng PasMaga from Fountainhall*»
Xkciihns relate to these Froceedtngt :
April 8, 1684, Tbis was the diet to which
earl of L^iudoti, the lord Meltil, ^ir John
ibrane and his son, were cited, on tio days,
use abroad. Melvira crime lik'lled was
« to the rebellion at BotUw;!- bridge,
fiarlying' and keepiiij
tin If, fiarlying' and keepui^ eorre«if>oii>
^itli the reWls there ; but the mcust they
GOiibi prove, was hia ierjdin^ a nies!»«gv to Mr.
*^hn ^V^ehtl and the other ministers, buUliuQr tia! treai^on, by ituffcriui^ rebek to escapo un
sent parurer>4 sicknei$s, whether they were
abroad or uiibin the cnuiUry ^ thougfh they wcr«
upon sold and conscience of the aitesient, tin-
^ess they were also under the hand and bm.wl
seal of the magistrates or burno-maKters of the
place ivhere they stayeil, bearing tliat the phy-
sicians had compeared before them, and had
deponed anent it ; and that by the old adjournal
books it appeared, no other lef titicates useil to
be admitted as excusatious and esf^oiirnies in
crinunal cases, but \^ here the miuister, elders
physician and witnesses compeared inthecoui-t
and deponed thei'cupon : and th(»righ iu iij#
circuit court, thev siiiuclimes admUted such
certificates i it was only because oj* the great
multipheity of business that foreed theiu Xo
continue causes there ; but they w oidd not do
so bereat\er. \etHee act 79. \ut\. 158?.
against continuiug justice courts. The tjj
caveat was to assizers, that, thoo[;h by net
91. 1587, tliey might modestly inform them* .
selves of any doubts, yet tbey behoved not iu«j
liolently to direct Ibe jiistices ; this was levellei
againa some of (Jesnock's assizeini ; and trnH
be rati mated and r<»quircd the clerks of c^mr'
and maceru, to be ready to ailvert to any di^
turbance sboubl happen in the court, that thej
may be able to bt^r witness tijr tlte king
wlien adduced. And as to assizers who ab
NcnteH themselves, he declared it would not I
their fmeof 1(X) merktt that would bring the
off; See act 76. ISHT, ami act lo6. 159a|
but that he could puriiue them liir coiisei|ueui|
Qi lay doun their arms, and come in the
f& mercy ; now even such comnumi cation
bwis notsafe^ without a warrant from the
or bis counsel, or the general, to doit.
lie say he bad the duke of Monmnyth's li-
ce and commission for it, Tcstiiitates « ere
luced from Urelincniu-l and other ph\ si-
ps in Holland, that MeU il and Loudoti were
KsposieJ ; besides Luudon dunii not come
tie for captions and debts, .A!ledged, the
itjiicateii are not probuiive, uot being al^o
from the magistrates of the place vi he ^e they
^^^, nor the *^raiiters examined upfin oatii
^Kta tJie truth of the eveuse. The justice
P^ftvt being to proceed acconhng to their form
cither to lead piv>batiou against theju, (which
punished by their uot attendance^ w liieh wa
a tacit tavouritig of rebels. The ihitd reproo
J was to the advocates who pie d tor pauuelsg
I (this also looked asquint to Cesnock^s lawyersj|
I not to adventure to justify crimes, or to palliat
rebellion ; for the preparative was bad ; i^eein^
these restless mutineers would poison uur iiosJ
tcrtty, by printing what made for them vu tlie«
deba'tes.*'*
** April 9, ia&4. The kiog-*^ advocate cott-
tinued the ditt against Weir of Newtun, ac-»^
<Mis4i4;<of treason, ior sondiog a m&u i« itli hots
and arms to liothwell britlge, to the secoui
Tuesday of July next: hh ulsoTigaiuiiit sir Jt)bi
Coctiraue oi OcbdliYe ; but m the mean linii
ordained hiiti to bo deiiouticf^ loruMt l^uduii
\
N
lOiT] STATE TRIALS, SfJCHAtLKS II.
utitl^ irnrram! Ami
liorrid, an:
treA^Q antl i
. »aiils cryrne.^, or ,.
oc \%bo dolh abait, a^t^iat, itLtrj*^ iiarU»uuiii-
lercoiiimoii or kef*p *t»n>'5T>on'!f n<'e wiib such
reb^Hfi, or ri m lu an^/
m:itincr of \ ►.• procb-
rir iih or aa-
5 -: hnviiig'
I riie
I"- . .->..-...*:; acts
<^ -, aHlhesub-
j^' ,»plie or rnTr r-
nunir . of wny\
inent oi kinj^ Jaicjcs the tint, it is sUlutt: und
tmhmptf, That rao ntnn n^f^niif* nor tif.tniTrti?
tilt t\ii ai. i !»i t!ie lJij»t ^es-i^ua i*i Lis >
fil'st ptuIJAiiie il^ it is tiedared thai ji
ttlisiU he hij^h Irea^ou to il
njiun uu> ttruund m* preteM v. 1 , m
rijse or c<«iitirnie iu armes, to n or
M-arw, or to umke aiiy treaties 01 it:,i:^.if^ ♦>itti
ITjrcig^ne iirinces or- csitaio!* or Mfnonj^t them*
iKlvfsi uiili >!it h]^ iM-i'-i'^ '-^''^ ' " r«titborilie
ami 0 [.i^ And
all his \; ^c(i to at-
U-njpt ajiy 1*4' liics thtntj* uiider iIjc i>aine of
trc^sotu I-jk'js Ik^ the thretliL' H'venlh net of
libTf Jhfv.'.:s i!;i! Hi-*!, hit* hecond parliamonl,
II is slutytc and oniaiued that no mwa « ilfullie
fceepc, maiatatne or doe fuvour to oiipine and
manifif^l rebcrlU, ajjfainst tl»e kttjjf'J majesty
and e^Hniiutn lawe, und^r the* iiaiae of forfaul-
farc; aad btt the tnenty futirtn art of the &\xt
|>arliain«fit of ltii»j^ Janieic second, intituled
Anent aererall peynis of treason. It h statute,
and ontainwl, that if any mnu comniit urdoe
treason itgaiust tie kinj^^s pei^on or his afta-
je^iiie or rises in fear of wrn^ ■ -^n^t liim, or
reccjftt any 4h'4t bus eomni i or sup-
|*ri«!S them, tht-y shall be j . ui iraitorii.
Aod h*; the hnndrnth and fbmtie lourtb act of
ytn,^ Jamc'M tht' «ixt, his tw«^li parlittmcnt, it i«
atnlute and ortlained, that wlirrever any de
ctarL'i! tv litor n ^tlie*, lii anv nart of ihiii rpnfm
mider the (laini^^ that the aaida rehdlt mdt
torsc'.v '. ■-' '- -' ^*""- -"-— -hw
and '"<
tcinlii aci. i>i M
theswonti, It i>
cept such aa :
cr\*mi?s be not
dtil.u '
nisti^
nynu^: s ^
ot kJngf Ju
others aii^ .m...*.,, . - -
I bend all rHjclls who are
at I
•i]
,i! 11:-:
nitbiu thcTS- hiitiscs b«j >riiis laiida or b?Lrl«»nn,
trndcr tl:» pnm rf dt'aih« aud nrnti^rtotef
An la iIk*
It at iwirtT kn
.< il 1%, ot
•, ot UiicT
, rryptTi and I
f illul laf«l'9, Si
L'iM5i: .'fy ufiJie
sua 1 I 167 9, N'
»nd ill ■H<>\ u I I .... ..J-
si'rnbktl ihfin^
none of iua '
Tccqd, feupj
pvc thfifi lioy I
luediatrty iipoQ 1
all bin \u^\v
dilip^ncc; tn
Irattorii, and
ie<, 11} any part of ibis realm*
ibjtK^ts hUtiU pvesimie ttf
reommon v^iUi them, or
^ inflnt, and that im-
lug* in the bounds
14 doe thmr exact
lie aatds rebcUs and
^, i ".t b[»eed they certilie
hw tnajeKie, or soroe of his srcret councill, or
aoine (lenrmis of aniburity or cictHt, within the
f byre, iUu uucb rebella are ^itbiu the latae.
and viUtMh iiVLirtlicn
je«lie*a K 1 :nid r
iiQrs«»a [*p». h«nj»»;r>»j uiiil li \kt
tsomMdei ice {oi>^\tmv Mill u ^ tpi-
j<^stiea toiY»« ut Uatij%»r'iijnd^i\
w rr del'ide by tbcin in Uie ni«m<'tli
Kftid yi*ar \\jf9 ; and tituot^h itii
rortertStld, of lltiehUl, u:i>* not jm
»cff With Ibt* fi.itds nbrlb, 3el ^
turnti»b or !(ii|iphe ti**'m m*i;
(^-»nk, ami vxUw pr«>v4sit'
sutJe<vd sr^fVciTitt of iiiu
weiv
Juh.
ibipui, ur eitUrr ot ihcipi in hm tiotuc or
* Iloitnilrd m»tt «. <- '
orders irovfnimM»t nnd f»v
17 n- 8, V
4rcuBe<r •
* homing <'u
♦ thieves and H'
chap, 7, Voi. L , > n, TV < )ir
case of Nainvt i , a* u. ITG^, J
a Nott^ respe^in,^ ,,.^ ^^uubtiou of
neous ehargoa in oiut diitay*
SCCniKUisn. l6st,— for Treanm.
LI050
tmitor in liit owd house aatt m the house pos-
sessed be hiin^ and aiillt, assisted . and supplied
him with meaty (]ri»k^ money, or did other
t'ariiurs to him since hia bem^ forfbult and
itedftrcd traitor ; and lie uo tar owued and
couuti^^niinced htni, muntaiD^d, intercommoDed
uDrl t^i]Tt'rg43d with him, tUtit WilKam Porter-
tieid^ihe said John, hie eldest sone, having
djed m the mooeLh of 1680, 1681, 1682,
m part
' Ltrours
ih of his
iicc ill ilie
Eld mat»-
t(Td and
iraitor,
att( nd
« h«iiag
lineal ed
rebellion,
Ufil acts
them to be such) the puhlic nrvtorietj bein^
pniven by witnesses; that audi hurhriuring-,
rtisvtliiLg-, aod conTersing^ &c. Bas treason,
and tliis guilt puuisliftbte huIj the pain of trea-
son ; b«>cause tliel4thi I5ib, and 25th acts of
jmrlininent 1449, and 97th act 1640, e.X]irr<!sty
deeltreit such hable ds traitnrs, and n>quirtii no
> more but that tliey be hold en and repute £uebp
TWm was determitied against lu! npiniDU of
Pjtmedden and Hurcous, two of thejusUcfv^
nith an eye to make a {jreparative in tUir poor
men 'a ease, to reach lilackwooJ, and many
others* For by tbit strange Inivrlni^ntor may
he endang^reu many innocent people, espe-
cially almott all the wesHTU siiire.<«, whtre
such promiseiious eon verse iias been 1i*equent,
and iii'aL' meiiiable | aod il can be only just,
to make this so odious a crime, where 1 wit-
iiji^ly and ttilliiv^ly, ivilhoul n*mpnkion, ron-
itFuv with one I kiiTivv III be a iel»e], vlinher
lie be declared to hv n rebel or not, or at least,
that he is notiimly kno^ui to be a rclK>l in that
pari ul" the comiiry inhere I sUiy ; ft»r they
con- : may lie notour in me pari, and yet not in that
lai«ei J I plac*<? where 1 duel! And thcntbr^, lo miii-
av(m~eil i ffate it, the judg-fsdeHai-etl, tbey meant not by
lUt king^- I resf^ttiiig-anacentemidrencunntrr in an inn, or
_biBtthbro- I on ibe high-road, bui a dclilieratc eoneealinof
Imlitiire led i tliem from iht! law, or as&istin!^ tiud maintain^-
i) beiniT ia- ' ing tbem with meat drink and liarbourini^' and
|0lf and beini| | kife|»iujY^ tbem at domestics i>t servantb^ with-
, and }<iuud : fn', ^1 th^/'irh act of parliament 1681, reijnire
- -*'^ [for pii|iin|ir me in thuitt Jiiit^ , ilmt the verj-
' niiurnhloMnj!vt raiiaiic luuiii^i livinir upon my
l(ro«ind, hhull bif inlitnalHl t<i me, for turning^
tbi^iii uMuy, ii^ru mutiif /w*/^«.< will law and
I reasiin require my knu^vled^r,. of those who live
rlscwhiir-*, Of sM:iilk iind lurk a short while in
' tiiy land, Vu be rr,Ms, ere 1 can \>ii oitiehidrd
Wmen Vii'vwtn tfi I ^^iiiUy oi treitsuualJt' it'sett of them. And it
iif DuHiall. imd all Ji'Siv'bt alled>^«<lj that the foresaid ir>th H<-t
1 t'HJ, ill* loo H-vcas k in di'Mietude ; soo I4j;r,
H'ltm, and 1ii92, aui M4. Vidi- Hlackuooii**
cfisip, :ilTil Junn^ry 16CSX [Sie \ol. 0. p. lnjj.j
** Jiiiiifiirv 4, 108:L At Privy C'ouuril,—
'Iliifmiol heiTTin in (JaUo^ay htivtn-r res« t
l68€. At the t^'riniiuHl hisiwos*ms wbn ueru in tlh* late n-beiiioa ai
case ofCnirris, ts^r- { J>'4liwtfl bridtre, be iniini^ iii Uu; rouneil's wiU .
- tlie rtf^i^niwr ifV tnii- ; iticl knl(*•^ niiTry ; iiud ih^y io riusird ol" the
lit be hi J own son, fbut i miiriiLNN til rdai'irm, vnijtrto his nia|t>ty a re-
I^Ctend tr>u»aua!Mi wilb <:oniitiL'ud!ilifUj tbsit he m];|lit trrani him a re-
ft^ one auulbcr, Ujfni;^h tJii!»vSiiJU r (>lbc:r«ise thoy crtuld not but hove
r dt*c J a n^l fiirtcit traitors, I rennilcd htm l»i ibr rnniiiial ('ourt : t|i<.u;rh
or intercom muiictl, or liis cust be jmist tavdurahle, aud e.MrepU-d tit.
[^QOtnriou^ known rtbeisj TK de receptator. latrnn/* 1 Fonntaiidiall't
iproTCiii that you knew j DmasmnH aoo,ttv5,
I
loi'tri'a^trin,
ore was T'rO'
I doom and ^n-
iha elc^i?uih
tiament, not-
hiM name i^ vk-
iilid ih^ said hir*
PJohti I'urif^rli'kl of
reerpl iutrrroin*
I the jumti WiwnntlpT
^ n fmranUand ilL'ilar«^d
»19h lllO IUUJOV1C9 llCViCUaill V% UllICIB iiaviii^
rower or aiiih.'irity for re|iressiijj> the saids re-
uells ousfht to lie proceedetl ay.MDyt antl severlie
punishrd as traitors. Lykeas by sererall acts
of parliament, and prot-iarnatioiis, all tJie sub-
jects arc* discharged, to recejit S!?pplie or iiilcr-
ci»mm(in witli rrb-IIs, any iiiannei' of way, and
partienlarlie be tiic thinf act of the first parlia-
ment of kingf James the tirst, it is statute and
onluiiied, that no man opcnlie nor noldurlie
rphcll aijainst ihe kingr's person under the pnine
of Ibrfaulture of lyfie, land, and pfoods. And by
the f\ ft act of the first session of his majesties
6rst parliamc )t, it is declared tha't it is, and
ithaH be hi^b trea;ii>n to tlie subjects of this
Jiiiigdom'% or any nuuiber of them more or less
iipon auy tjraund or pretext whatsoiaever, to
rise or continue in armej>, to make peace or
\f arne, or to make any treaties or Icajjues with
flbrei<rnc princes or estati>s or amongst them-
^dves wiihoiit his majesties speriall authoritie
and aj)pro!ia:inn first inttM-poned thereto. And
all his nuijoslies subjects are discharc<;ed to at-
tcnipi any of thes thinirs under the paine of
treason. * J. yk::s bo the threttie seventh act of
kinTf tFar.ics tlie rii-st, his hecon<l parliament,
It is statute and ordained that no man wilfullie
rccepty roaintaine or doe favour to oppine and
manifest rcUlis, aj^ainst the king*8 majesty
and common lawe, under the jtaine of forfaul-
turc ; and be the twenty fourth act of the sixt
parliament of king James second, intituled
Anent severall poynts of treason, It is statute,
and ordained, that if any man commit or doe
treason Bgrainst the kini^'s person or bis na«
jestic or rises in fear of wear against liim, or
recepts any tlrat has comniittei! treason or sup-
plies them, th^'v shall be punished as traitors.
nyntie sevenii act of the sevcati
I ot king Janu'sth'j fylt, al! sneritls,
I others arc ()rdaine<i to d^ic dili^en
I bend all rebells who arc at the li
i liitai crysTies, and that n.o mm ^
! wittin^llt? rrcepi supt lie n»a;!trLin d
I favours to ::ny rcbcMs, tK-iiig at the
! within theii- m<i;ses i>'>.i(ris lands ui
j under tla; j'.uin (.f dc.uii, and
; of their i;u»vtM: i.*s. As in the
and acis or jiiii-iii-r-f rl at more lei
tained ; 'SrviMiii.l-^s i; is of M'vi
said Jolin TortL rni*id, oi l>iich.lt, :
all fear ol (.i«^!, rcspLCt and re«^ar
jostles autiioriiie and lawcs, bus |
commilt, an:l :s cuiiiy of the said
sua fjir as in tiU* y«'ar 1610, se\eri
and disloynll perM>ns baviitr roii\
sembled tht^inselves ioj;«ihc'r iu
wcsterne hhyn?s of this kin^du
themsi'licsiii aneai'iny, n'iidi\o'.z
I cised-tbeniN<>Ues, roMV.tiiitiu*^ iiif
! and xilb.nics, kil:iu.r ar.i) u.uriberi
Ijestie's K\ihjei.is, litlleiDLj dud n
j horses [«pi. hous.">*i and i:o«ds, a
I confideiiee touppo^^and fi:rht ai;a
jesties forcrs ut l5oihwelnrid-e,
wer delate by thoni in (hf monetb
».aid year I'oTO ; and ttiouifh tb«
PorteriieM, of U-ichill, ..asn.il |i
self with thi? s.iids rtbells, >el be d
furnish or suppiie them with ai
4rink, anti oiIht pr«nisiuMs, hoiiu
sutteitfd sfiverail of his (ciu-nU to
the said rel)eIliot», anil elttr the ^i
were dvil^.c, th»y returning bauK
John Porirrnc-ld, olljuclwll, •
591
STATE TRIALS, 36 Chablm II. iSSi,—Jw Trrat«u.
[1054
%e Lords for seTerall cfiuses moving them,
tinucd the snid crimlnat aclioD, and caURe
the twentie second of October, and the
to find diutian in matitier foresaid, you
I send them in prisoners to onr privy couti-
lor their committee at Edinburs^li.
You fihaU diiig-^ntly searcli for the he*
incitorfi, promoters, or concurreri to the
rebellions, the intercoinmuoers with siich»
setters of thera, and others^ not heritors,
^ of the said crimes, since July 1, 1683-
'** Yon shall siaiji and secure all pedlars
> have not passes^ according' to the trnor of
h last proclaiiiatioo, and lecnre them lill they
1 caution for their good bL^haviour.
" You simll stop nil posts who earry
er«, exctpt snch who are allowed by our
naster f^eneraL
" You shall commuDe with rebels, to
_ thetn to obedience, upon their address
[ ^rdon, and you shall acquaint (j>ur secret
pmtttee with their proposals, imd what
i twixt you and them ; and in order there-
by you are allowed to i^ire them safe con*
II. ^* You shall command the foi*ces assi^-
I to you by our privi^ council, aoeoiding to
I necepiity of our service.
|2. •* Yoa shall turn out oil the wive* and
dren of the forfeited persons and fuj^itive^,
I their habitations, if it shall appear that
/ have convers<'d with their parents or hu8-
d«, or if they shall refuse to vindicate tham-
\ by t)ieir oaths,
** You shall enmiire whsrt quartei's are
jid by the soldiers in your several districts,
[take care payment be made tor bygonea,
I in time to come,
|4. *' You are to eiamine what money has
collected by any body wtthin your dii-
s, and not conotetl for.
|S. '* You shall take care, that decreets for
B for ecclesiastic disorders, be put in execu-
, as shall be prescribed by our privy coun-
k5. ** You shall Ijc aiaisting" to our regular
y, in hring^io^ people to obcilience in set-
church -sessions J and if any complaint
de of any of the reg-ular clerjEfy, you are
EitTifnd the punishment and censure
p to our bishops, orjudgfcs competent.
■ If you find any part of the country
bborn or contumacious, you shall impose
\ ftnes upon them as the law will allow ;
in case of not paynient thereof, and that
t think it tit, you are inimciliately to quarter
forces tm tlie stubborn and conlumacious
til the tines imposed shall be exhausted by
*• Yoa are to ktep good and constant
spondence amoug- yourselves ; and if it
I happen that any man %hi\\ tlt^ fn^n tme
rict to another, when you .ire adver Jspd
tliereoC \ou shnll immetliatcly cause the fu-
S'tive to be a]>|*rehetided, auJ you ^hnW st*nd
tu tu the dtfiitct from whbtice he fled, to be
«amen being then called, and the pannall havings j
^ven ill a Petition craving that for the rea**]
sons therein mentioned, the Lords would b#1
judged by the commissioners there, or else sent ^
by thera to Edinburgh, as they shall think fit.
19. ** You shal^arquaint any of the nei^h*
bouring^ jurisdictions to which any of the rebel*
shall flee, to the end they may assist to ap-
prehend them ; and if, in pursuit of those|
ii shall be convenient for you to go out of your
district, or to send parties out of the same, th«^
magistrates are hereby recjuii'cd to obey and
as*$tst you, as they will be aaswerable.
30. '^ You shall suDer no man to travel j
with arms, excepting jcrentlemeti of kuowa ,
loyalty, who have taken the Test ; and no yeo*
man to travel three miles from his own houses
without a pass from his minister, or a com mis'*
aioner of the excise.
31. " Vou are to call for all or any part of \
the heritors, as oftea and where you shall find i
ii needful for our service, who are hereby or-
dered to obey under the pains of being punish^
ed as absents from our host.
Si. ** You shall put in cjcecution the power I
of justiciary to be granted unto you by our ,
privy council-, with all ri^ur, by using fire
and swortl, as is usual in such cases ; and i
wedoirapower our privy council to insert aii^
indemnity to you, or any imployed by you, foi
what i^hall he done in the eaeecution thereof
23. " You are hereby imnowered to give
the oath of allegiance to such persons wluiiti
your districts, as you shall have reason iH^
suspect; and in case of refusal, you shalfj
banish thetn to the pbntations, whether nieitn
or women*
54* *'If you shall be informed, that an^l
within your dLslrict shall deny our authority' . J
or their*boad of Allegiance to us, you shall!;
enquire therein, apprehend the persouS) and'
either judge them upon tlie place, or send thera' j
into Edinburgh, as you find most expedient. t
25. ** You shall call lor, and dispose of tit€? '
mililia, as you find most (it for our service.
26* " Y^ou shall enquire how the ordinary'* J
magistrates have earned in our service, andtu*j
form the privy council tlicreof
27. " You shall repoi t to tha secret enni* '
mitlee of our privv council, such propnsitioiis <
tts the shires within your district shall make to^
you for onr servfce.
28. ** Yon arc to obey such orders as yoa3
shall lecetve from u^f, or our privy council, or^
Gccret committee thereof, from time to time j'l
and you lire also hcTf^hv nnf i,»r; » d <.. ♦^^rbeaf^
the execution of ^nv ' m-^
stroctions, if you sfioi! ime.
** For doinjif of which, these presents shall Ih, .
to you, and all others who may be rfspeolivelyji
concernetl, a suflicient Warrant* Civtn unde
our royal hfind nnd ^fT^^nrt, nt otir court
Windsor ravile, the ust le
aud of our r^^'ign the r.
Uy hh .liajcity '^ cmw^ '■ "-l
I
1055] STATE TRIALS, 36 CaAEttS IL i684.— Tria/ cf Jukn t^mirrfitH,
pltm^ to delay hU tryaU* and the lamea beio^
resii Aod con&idered, tbc Lords eonliuued the
tr^'oll uf liie panoall lor tlie cr^'iues rocjilioiji^
Wodrow tiieu proce^di t)»uii i
»' It was the montb of O ■ * - t.^' -^ »i ^
ieffiUlc cin^uR HAt duv*ti \\\
trrcK. Tho&*2 ample nowei>, -u.. *...;., ..
cut and carve in iheni as tbcy sau- j^ood, let
us see wUal an arbitrary and abs^tute jjovcrn-
Inent Scotland was now UDder. Lirejibertv,
and e%ery thin^ i^i H't in the rnauai^^rs liantf^t.
If they pltftsetl to have mercy on the poor ha-
fftsse«rcountry, the kinjf alloifed tlieni, and
If not, their instructiona carry them even to
iirc »nd sword.
** To pave the way for their work, or at least
to present the poor stifl'erers gettinp off the
kingdom, and to di!keoter surh as remained in
It, two Proclaiuaiimts are err»itled in Septem-
her ; the first bears the dcitet September 15th,
#rdi*rin^ lite oaths of all the masierf of ships,
or vess>t.«}s ^oin^ off the kinji^dom, to be taken,
«s to their passetii^ers. This nec^fs no obser-
vation u|ion it. No question, it wn*; l*\*41*>ir
aizumit the pcr*»ei'iited^ party pi
Jlevi circuit was very justly 1Vij4^! J «
IVom their experience of the scvrritics of the
former. They are not ^utfered to live at bomi\
And nrtW are stoppetl irom retiring- to forcij^u
Doumrifs, where they mi^bt be free from be-
%£k% butchered in cold blood.
»* And SSeptcinber 16, another Proclamation
istmitletif diacbargiDg- all persons whatnom-
aver* to travel from one shire to another with-
out a paait. It i^ but short : All travellers
inust have a pas« from some* [persons in tho
S^iemment. And the pretext is, to hinder
(iers»n3 from carrying false nev^s from one
•art of the comitrj' to anothpr. I am uot so
fiir master of the mtriij^iies now on foot, av to
wake reflections that perhaps might be native
•fiou^li bore. A* ilic birmiT \%sto a check and
diinip upon rmde and €oniiiicrce« ko tbi^ is a
plain encroachment upu the libetiy of tlie
subject, in ^oini^ and c^minif from one place
to another, and a kind of imprisoning the lieges
at large, nithout any jubt reason i^iven. That
of spreading fi»lse news is cvidenll v frivolous,
«t»d every body may sec ihe^c might l>e i|/rerid
by letters. Tbu true desitju seems to have
been, to be a preface to more general imposi-
tiona on the sid»ject, lus we jihall atkrwurd
hear, to (irefi^it sMilering people retirin^f from
the fury of tltc circuits, to be a oew colour to
the soldieri, and to op[ire^s poor irt?ople the
more. I wonder the proclumation tUn:^ not
inipower the hiwbops and ortliudox cltrrgy, to
gi>e passes. The iuM ructions to the com-
mbksionerti seem to suppose soiui!*fiiu;b puviseK,
but, it seemj«, the couucii do not find it need-
f ti I to eut r u St t h en t ,
*' Before the meeting of the circuit or justi-
citiry, llie council by Uicir rJerk order the shire
of Stirling with it^ jurisdieiiofi«, pru hoc vice,
to b« adjoined to th« jurisdiction of Glasgow,
in hb bdyttneitL, till iUe sevroleiDth^l
tember, then next to cwme, njid
to be tranfported primmer lu the Tol
tci save the lorib the UouM<^, as I
! ci V- i n 2" G f assfo w. 1 ob^ l rv c t i t »T h if 3 ^^
, but it n
Hit* rlrrVv ■
ol Uie p
matters f*
the clergy m» r*^
here, its date
dorsed.
is twi
' nj 5ii4«i, I lid' 1
€xprea»eil« and
a^
Warrant to the Shiriff^drpuic ^if ikt ^iietf'
Siirhng, ItJUf.
" SheriflT- depute of > •
*» Fura^ninch as his bv
under his own royal f '
adjoyn the shire ol <r^|»
tion '''"^ '■' '" ' '^i ' ^
or r*
ibni
ind other
I Other sMpr
shire, tmd juiisdiotion^ and
the same, to compear belbrr 1 1
majei>ty*s priry council^ at Gla*^*w the titk
diiy of October instant, by ni***' ^»f fbrd-d,
and there to attend the said l.«
such onlers and dipeeiHui* f*
service, as sUaii be til ' a,
** You art* likcwi- Al the m*
uislers within ymsr i^inn-, tri;w
said Lords at UiasgiiW the l^
that they como [nvjn ■ ' * ^u
Lords, exact lists, .rr t>
make faith as t^^ ' tiiitn-
drawrrs froio iiliil
suspect and di . , . .i,i
I jest) *s fjn\ e\T\ me n I m cb un j 1
' as it cooM^lii with their know I.
list Of all b^ucli persons, as ih , «i9
give best infonuulion anerst th
*♦ As Hke\* ise you are U
of KJrk rkcssions, their cU t
pone upon the foremetHiont-d pjjij*.ulAf* m
Kiiid day and jdac^.
** And parlicii' *
gistrates of the .
fore *.;:■■ ■ •■• ' ' ^iinr,
and , rmmh
IZ
tiont^. ^.^.......^
them an exiict
stand infeft in Li
in this you uor any
sons are not to fail,
answerable^ Kktrniitcd
PatersoD, clerk to bis liiaj
ble'priry council.
'*• Wnj.. Pateeson, CL Swrr, Coci
"-H
*^ From this and whal gota before wv m
le&rn, that these vaurts bad both a cotiticitaaii
jti&lictary ^^owcr, and had a vast gooi|)«0 ^
)57J
STATE TRTAIA SfiCHAHtES IT. \6U,^for Treiuon.
burgh, tber to bvd tils trvall for tlie crymes
Bid, at the da^ above specirted, and like-
^yes onluined the haill wltne^^es aoruii)st him
fiod caution loi* I heir apjmrunoe at Kdin^
r^h, the said sevt'titeintli day of November
itf to J^ear vutues iu the flirsaid c;iuse, under
irs before tliein. We shall find al'tervvards,
sliire rmne to Glasgow, and tj^.ive ample
ik of thrlr loyahy and siil>mi$sion to the
g's orders.
' What were the precise days upon which
me courts, orduiarilv caileii cireuits though
f^rent a httle from t^ese in the former years,
I cannot i^ay, fnrtlier than the dutea of
Lie papers tn the re^Uters, and others cotDe
my hand, shew, li nuuld seem that court
"edburgh met Ituvard tlie betftnnin^ of Oc*
T, for i find a letter directed to them, aiid
rest, from the commillee of public a dairts,
'ler 9, which will give some more light
lutthcin, This I ^ve fi'om the regtiaera of
incIL
** October 9, 1614. Sederunt the conmiittee
IT public afiairs, upon llie report of the com*
'^TsioD, at Jedbnrifh, and for the western dig-
its the Lords did send the following letter, a
py whereof wan ordered to be sent to the
It of the districta for the rule of Ihetr proce*
iure :
** My Lords ; The Committee of council
being' rery frequent, I did propose to them
jfour two queries : in ans^ver to the first
whereof, it is all our opinioti!^, that il' the de-
lenderSf called before yon as counse!lers» be
■*" oaljy cited J they may be hohlen as con-
but they canno't unless they be oersonally
and all that can be done in that case is
I them to the horn, w hich will be as great
punishnieat to them, as if they were de-
' 'ed tuj^attves ; but it will not infer any dan-
to tlie country by resetting them, which
much in he shunned as can be. And if it
thereafter found cooveuient to hold them as
"est, to the end that the king may get a fine
holding thenj as contest, which may l>e
i-e advisable than the takinpr of ihdr esdjeat,
ich is all that can follow upon their being
to the horn, then I shall cause cite them
m sisciy days, as being out of* the countiy,
let not that stop your dili^'eniTe ; in which
they "'ill be liolden as confcsti though not
nalfy cited.
It is* likewise their opinion, yon shonlfl
eed against all sheriff-deputes who have
vcfsed, and that you should punish them
mplarily to the terror of others, and to the
cod thai people may see that you ore come
there to protect honest men, as well as to punish
knaves. 1 am, your lordships* humble sen ant,
** George M*Renzie.*'
** This letter is a little dark to me, l^ot hat bg
qu«rie»; but it lets us in to see somewhat
the managers severe designs upon gentle*
!fi and others.
*< It tat of more Importance to gire aa account
I
the paine of f^ve bunder merks, or else to be
committed pnsoners to the Tolbuith of Glas-
gotv, lilJ they l»e transported to the Tolbuilli
of Kdlnbufiifii, to bear wiines in the forsaid
cause. The lords lykwaycs ordained the as-
sizers to attend at fidinburigh, the said seven -
of a letter from the king, read in council, or its
committee, October Vi^ which was no doubt
im]»etratc by our managers here, as the foun-
dation of their imposing exorbitant 6nes upon
many gentlemen we iihaU hear of in the uexl
section^ The letter follows :
»* C. H.
" Right irnsly, ^c. Whereas we find that
some of our unnatural and rebellious subjects
in that our ancient kingdom, da enttfr into
plots and conspiracies, the more willingly and
securely, that they think their guilt cannot be
discoTcred by the depositions of witnesBes, tlieyj
for concealing their guilt, indueJtriou*<]y using
to discourse of those matters only with ana
person alone ; and it being easy to cause ona
or two, who might be proving witnesses, to
withdrawr for sometime. And seeing it h tho
great interest of all gf>vernmei)t^ as well as of
all w'ho desifc to live peaceably under it^ that
all subjects should be oblijjed to fear all manner
of accession to such hcirrid crimes^ as tend to
overt hn*w all sm^iety and government ; and it
being undeniable, tftat no man can com plain
when judged by his o^vn oatb^ by which he is
in less danger, than by any probation of anj
witness whatsomever.
** Therefore thought it necessary to impower,
and we do hereby authorize and impower our
advocate to raise process before you, or before
those who are eommis^ionate to represent us,
as our privy council, in the Western and South-
ern shires, aganist any whom you or they
shall order, for the said crimes of plotting and
contriving to rise in rebellion, or for intercom-
muning with, or resulting any declared i-eliels ;
and to refer tbeir guilt to the oath of the said
dt^endcDf, io sio fiir as may e^end to a pecu-
niary mulct or fine allenarly.
** Declaring hereby, for their further se-
curity, that if they shall depone upon the
guilt so referred to their oath, they &hall be foe
ever as secure upon the pa^^ment of their 6ne»
as if they had a remission under our great
seal : whereas, if they refuse to dcpt>ne, wa
order you to hold them as confL-st, and to fine
them m what sums you shall judge to be pro-
portional to their respective guilt and accession.
Which pov*'erso graiited to you, shidl only
continue in Ibrce till the first day of April next
to come, and is hereby ordained to be regis-
irale and recorded rn yoi^r books, to the end
that extracts may he n;ivcn to any wlio shall
depone, as said is, this, and the decreet* t<>
follow thereupon, being to them in place of»
remission. For all which thts shall be to yoti
a sufficient warrant Given, &c. September
37, 1684. " McRRAV."
«
(
I
I
1059] 9rAT£TRIALS^36CHASLBsII. l684^rr»aIo/JoJbP<>ff»:^». [1060
teiath of No?eniber nixt, under the paine of
two huodretli luerks each peraone.
*' The Mid criminall actioo and cause being
th^n called, the Lords for Beverall causes moving
them continued the same from tyme to tvme,
till the twenty eight of this instant, and the
same being then called and both parties com-
peirand, The querie and solution tberof under-
written was produced in presence of the saids
lords whereof the tenor foliowes :
" Edinburgh 98 November 1684. . The said
day anent ane querie proposed be his majesties
advocat to the lords of council! and Kession, be
command to him from the lords of the secret
comitie. It being treason by tlie common
kw and ours to supplie or comfort* declared
iraitors, apd it being treason by our law' to con-
ceal treason, queritur whither sir John Cochran
bating asked from Porterfield>of Dnchall who
was not related to the late earl of Argvle, the
•bume of fitly pounds sterling for the said
«urle's use being a declared and notour tr^tor,
apd Duchall not having revealed the samen
either to his majestie or his officers, wherby
the pr^udice that might have followed tber-
upon might have been prevented. Is not the
£»r8aid conccjgliii^ and not revealing treason ?
Sic SubicribUur^ Geo. Mackenzie.
** The Lords of counsell and session having
•onndered the faeti species proposed in the for-
■aid querie, it 'is their ^ud^ement that the con-
cealipg and not reveahng in the case forsaid is
mason. (Sic Subscribitur,) Perth Chan>
oellor, Da. Falconer, Ja. Foulis, J. Lock-
hart, David Balfour, James Foulis, J.
Beton, J. Murray, Ro^er Hog, J. Wau-
chope, H. BeiTiie, F. Stewart, L. Lyon,
Geo. M^Kenzie, Patrick Ogilvy, George
Nicholson*."
The Lords having considered the lybcll per-
loticing Uurae*s representation of king Charles
the second, as endeavouring to niitic^te or per*
■uade his ministers to remit one half of the lines
levied in the persecution in Scotland, in the
early part of his reign, under the ecclesiastical
commissions) observes, <* The fact is, that Uiev
were levied entire for the king's own use,'*
which indeed is sufficiently shewn by Wodrow,
to whom Mr. Laiog refers. See also 1 Fount.
186.
* ' In this answer* says Wodrow, vol. 2, p.
4Q1, ' the whole of the lords of thcjusticiarv.
almost, three or four at least, deliberatelv ^n% c
their jud^ent anent the chief part oi'thJ mat-
ter, in debate in DouchaPs process; and it mav
be considered how ikr in equity pen»ous who
have already given ju<iginent, can give it ovtt
again. It is certain they could not but con-
demn the gentleman, unless thev should con-
demn what they themselves had signed under
their hands.'
*< I have not observed the debates of any ai1-
Vocates in the process, for indeed it was fruit-
less almost to reason upon a matter already
CMc/iided upon. However, 1 shall here bet
4
sewed by bis miyestles advocat agiiiwt Jehu
down Doucbal's own thoughts of his cbk,
which he drew up at the time, and^f 1 1 '
not, gave into the court and resumed it I
the assize ; and it is as follows :
John Porteriiehl of Doucfaal, is indided ftr
reset and converse with bis own brother Ala-
ander Porterfidd of UaarreKoan, whereas ikt
said Alexander being forfeited for his acosnM
to the rebellion 1066, and his estate beoy hU,
and disposed by the Exchequer, the nid Ala«
ander aher some years did oome and live pcMe-
ably within the shire of Renfrew, and, looff ll^
fore the time libelled, did ^ publickly to Ekk
and market, behaving hunself as one tf Ui
majesty's iinee lieges, by ooovernqg wiA ik
miyesty 's suligects of all ranks, and as Fkifj
Counaellors, the sheriff of the ahire, «id He
officers and soldiers of his majesty's lmci;»
that i^rivate snl^ects could not but conchA,bi
was mdemnified, and his own brother wa Ml
more to abstain from converse with him,lhH
those above-mentioned, espectaUhr sriiar hi
did compear before the ordinary domii sf J«-
dicatnre, particularly the sheriff ooutt of Bo-
frew, sometimes as pursuer, aonietinies ai dt-
fender in sundry actions; yea, did adMlly
Compound with the sheriff of the shiv^ ibr afai
of irregularities in not keeping his own pnb
church, and received his discbarBe nr tb
same, Moreover, he did ordinarily fitqeMi
his own parish church, when there was a r^
gular incumbent, and freqoent]j eoavoHi
with the said minister ; be was fraqiienlly iii
vited, and present at most part of the baridi
within the shire, where he had access to oqb-
verse with all ranks, and repaired to msxien
within and without the shire, and lastly M
assist and help to settle the soldiers in ibdr
quarters and localities, and did entertain thca
even at his own house.
*< As to the harbouring of George HoIMi
the plain truth is, the said Greoiige went swij
without arms, and returned so without bmf
noticed ; but so soon as I was informed thstbi
name was in the Porteous Roll of the oonitst
Glasgow 1679, though he was neither cottUi
tenant, or servant to me, yet I caused his hf
thur put him off my ground. Thereafter hi
compounded, first with Kennowav the donalor
fur his moveables, and thereafter with dif
sheriff depute for his ueaceable hving, at which
time he took the bono of regularity, and had a
testificate thereupon. Notwithstanding 1 wodi
not entertain him, so that he listed himself ■
suldicr in the standing forces. All which if tf'
fcred to be proven.
«' As to the last point of the libel, the truth Is
sir John Cochran did make a very overly ffl^
perficial] motion to me, for fifty pounds steiW
by way of charity to the earl of^ Argyle, whin
1 refused ; and in regard die motion was fis-
ooscd so trivially, 1 thought it notwoitbf l>
be communicate, nor could I profve it, bsd il
been denied, neither in conatructiMl of iMTdi
it infer the things libeUod.''
Jl]
STATE TRIALS, 96 Charles n. i584.-/or TVeofm.
flOGt
L - till
field of Dachall, they finrl the «amen
rant as it is (y»j«lle^d viz/Thai lie hmrbonr-
snd reoept upoo the cround of Iiis Iand§,
^rge floloie, m lieclared fugirive for treason,
I conferst'd with and recept atid ijitercoraoti-
! with AlexanifprPoitei-fieW his brother & tor-
llted traitor, and also that he oonceale<l or
■ reveafed the treasonable pmpoflall made to
t be sir John (Joch ran, im Biippheing- the
^earl of Ai^yJe, a tbrfaiilted traitor meDtioTi.
' in bis mdyinient, separutiui, to ioferr the
"~ne of treason and |t3ine of treason, anil re-
1 tbesamet} to the kuowledge of an ioqciest.
Ass IS 4.
John Dalmahoy ofUiat ilk,
J&nnes Baird of SauchtonhalL
.^r Jamea Floeoiinif of Rathobyres.
lenry TrotttT of iMortounhall.
[cory Niibel of Dean.
araes Murray of Hkirlin,
Hobert Hepburn of Barefoord.
Sir George Hkdn of Fin tray,
lieutenant Collondl Rae.
Jiavid Edie of Newwark .
Alexander Cruckjihankf merchant.
James Nicholdon, mereband.
James Boyd, nitrfhand.
Hewry Elphin^oun, LoUeetor at Aber.
WUlkm Menzics, merchant in Ediuburi^^h.
The Assyse lawfully sworn, no objection in the
itrair. his Majesties Ad rocat for Frobation
liieed the pannairs oivn judiciall Cnnte«sion»
Tto he adhered in presence ot the justices
aasizers, and wberof the tenor foltowes :
Ediiihnrgb, the inh day ut* Nor. 1684.
! which ddy John Forterfield oi DutbatJ,
iemed and acknowledged in presence of the
i lords, that sir Jnbn Cochran of Ochiltrie,
ptyme in the session, in the end of 1682,
uning of urn, having mett itiih him in
burgh of Edinburgh, the said sir John
■posed Ui him to give titiy pound sterliiie,
tthe relieff of tlie late extrle of Argvle, and
X he refused to do the same. Confesses lie
I this proposition to Cuningliame of Craig-
~f and that Craigends told him the Jyke pro*
U had been made to him.
Sic Suhtcribitur^ J. PoRTEBFIELD.
J, Dbummosb. Jl. FuuLis/*
Ithe said John Porterlield of Dkichall»
bg of new again jnterrogat in nreseoce o|
k assy se after thev were sworn, he of new
ft^iti acknowledged and eontessed, in manner
Eiog, via. That be had conversed with,
ired, and recepi Alexander Porterfield his
r, a foH'ault**d pei-son, and uho that
e Holme a fugitive, had, dwelt and re-
m his ground, and that sir John Cochran
ake the projK>>all to hmi ntentiontd in
lay, and that be bad concealed the sanien
md not revealed it to his majesties privy
cottni-dl or others in aitth«tntie under the Lng,
iHMl det^lared be submitted bitiiself tt) the king's
mercy, and hitreated the lords to repreaent his
condition farourablte, since be vru roost pe*
nitent. %
Sic Su btcrihitur^ J . Porterfield .
J. Dkummond Ja. FOin^ifi,
Followea the Venlict of the Assyse,
"The AiMyae having chosen sir John Dal-
maboy their chancellor, all in one voice, linds
the panoall John fortertleld of Douchall gnilty^
by his own confesaion, of conversing witli, har-
bouring, and recepting Alexander Porter field
his brother, a fortauked per»ane; as also io
harbouring on bis ground, Geor^ Holme a
declared fugitive, and sicklyke of concealing
the proposal I made to him be air John Cochran
mentioned in his dittay tor supplieing the lat#
ctrie of Argyle a forfaulted traitor,
Sk Subscribitur^ Jo. Dalmahov.^'
The Lords continue the pnmunciog of sen-
tence till trt morrow, being the 29ih instant, at
twelve o*clock in the forenoon, and ordaines ibk
pan nail to be removed hack to prison.
The Lords commissioners ot justiciary tlier-
for having considerdi the said verdict of at*
ivse, they be the month of James HenryBon#
Dempster of Court * decenied and arljudged
the said John Porterfield to be execute to the
death, (lemsiined as a traitor, and to underTye
the paines of treason and utter ptmishment ap-
poynted by the lawes of this realmc, at such a
tyme and place, and such a manner as the
king's most excellent niajesty shall api»oynt,
and ordains his name, fame, memorie, and "ho-
nours to be extinct, his bUM>d to be tainted, and
hisarmesto be riven furlti and delate out of
the bonks of armes, sua thai his posleritie may
never have place, nor be able to bruik or injoy
any honours, otHces, titles or dignitiea wit bio
tins real me in tyme coming ; and to have for*
iaulled, aniitted, and tint all and sundry his
lands, heretagcs, taks, stLnldings, rmim*^, pos-
sessions, gootls and gear whataomever pertain-
ing to him, to our soreraigne lord^s use, to re-
mairve perpetuallie with his highnes, in pro-
pert ie : which was pronounced our doom.
** It seems '^ says Wodrow\ '^ his sentence oi
death was preconcerted hetbre the Justiciary
sat, for, in the Council Hegistere, Noven^ber
Ji8, 1 find as follows: The Council jfcomturnda
to the Lords of Justiciary to leave the d^y atid
place of Doucbars execution to his majeaty.^f
And he proceeds, '* Douchal was most sedat*'
and piitient under hi-, trial, and bore all with a
christian spirit. His honour as a gentleiuau,
and loyally as a subject, sttiod full and entire;
his contkcience did not reproach him : ail woi
peaceful within, and God smiled upon him*]
Thus nothing men eoul*! did rutfle him» j
W hen he was to receive his sentence of fuf* 1
ieiture and death, he wa& askinl as nsuul ni|
♦ See a note to the Cjise of Lor*l Louilou ai
others, p. 10U8 of the pre<»euf volume.
f See, too, in «i Wotlrow 14^, the cruel order!
concernini* the execution «if Haekstoun oi Ha- 1
tbiJIot, whtch the catmcitmaUtf before hit triaLI
I
I
I
a8S[).8TAT&TRIAL8^56CuM.V»I|. leUr-^OHd^MitPm^fff^ 0NI
Hm
vbatevfircomeMiiie! iwco uiawad
. rwhii; lie hftd to flR J why it dHNiM
not be nrooooiiGed. Hie ratoni wm, My. lordey
lliMre little to'My, I
kuukwlMteverco
I to>e ft better CbriniftiiftiMlfQlgeGlthftii
ettch^HbepefKcoted bim. ' *
' Hieeaileiicednnir oomptHioD and teifefWNB
niftvyef tbe onkwkerfty to §«• ee good, oM,
ftod inoooent a g^nllenum cupooea to oncb
bftvddupsibrimftgiiuiryoriiiieft; yeft«tbeboid
■MMOte.be mel witb wae mr^ed by oouie
ptnoni in tbe gofemneot ftf&r It wif oter ;
ited I em well mured, tbet even oir Geoqie
If^iekeosie noed to cait tbe blaiiie of tbii pro-
cednro off bimaelf, and tarn Douobel * My
^kfdMelfoid'e martyr.'
And snch was tbe eqaity of tboee timeo, tbat
Ibe very person wbo waibie judge, bad got a
!vjoiii|NNMniaa of bb estate, wbicb waa in doe
idegood ; and Joly 1686, by tbe fcinff|a
gift tbe eariof MdfiMrd was made donaior to nis
personal and berrtaUe estate, so that be bad
more vtimou tluitt erery body to find him gnilty .
16B&, Mureh ^!td. JohnFMerfield, lute of
Doucba], und Alexander Porterfield bis son,
f^uppHcate the coinioU for liberty. The' first
is rerufied, becaose under a sentence oi §9t->
feiture. His fion is let out, on bond ibr the
Bum in which he is fined.. July dSd. Donchal
X9 alltjwcd the liberty, ofthe town of Bdinbnrgfa
upon his petition, bot confined thcfeunto. And
l^eptnabsr 3d, the oouncfl transmit tbe ibl<
lowing pedtion from bini to tbe secretaries;
* That whereas the petitioner bemg desbedby
tor John Cochran to ^Ye some charity to the
lord Argyle, did heartily refuse the same, and
laying concealed the design of the said sir
John, and not timeously revealed the same,
which he did out of ignorance, and not out of
jany evil design, but did ireely confess the
'same, which otherwise could not be proven
.lujainst him, wherefore your petitioner is for-
mted, and hath a long time been prisoner ; and
seeing his life is near at an end, I being of the
age of seventy two' years, ond under many in-
tonities contracted in the said prison,* it is
therefore humbly desired tbat your lordships
would recommend your petitioner to his most
eacred majesty, for a remission to be passed
ffratia, containing Rehabilitation, &c. Audit
w hoped his sacred majesty will he so gnttnous
^cOasiderioff that the petitioner's crime was not
tiiitentioiial,l>ut in a manner ignorantly) out of
Abat gracious benignity and goodness which
jprinoes have been in use always to bratow upon
.the worst of their subjects, bemg penitent, and
allow your jpetitioner a competency to live
upon, 4iut of his own estate, and take some
eeen course with bis debt, which is very griev-
ous to bis spirit, and your petitioner shall ever
fray: John Porterfield.' And I find, says
ITodrow, September 16tb, an address to the
eonncil from Alexander Porterfield his son,
ehesringifaatlMi hath nothing to pay bis fine
sritbj 9mng bis lather is Ibmited, a
drees to the dnke tff _
Wodinv, 4'iOK«M, 478.
ne JoUm^ u WnmitdmkmWs Smrt ^
tkk Cm: ^
« NoTcmber ST, and t8» ^684.
efDocbde ^ms tbir dhpDjfa
Clydesdale, and
the. 1st 4tf December, i
eoo;. Imo. ThatbeJhBd'
one Hdmesbis offioer, after h^hU mmm
from Botbw^lbridge; and aiao Wd eft h*
bourod and enteitamed -' — FsiMftrid Ik
brother, who was excepted *
indemni^ for- being' at Fn
Tbat BUT John Gocbraa tod 4
desired tbat he mi|g;ht lend t^bOOmfOmW^
poor. distressed friend, and ba
meaned my lord ArgylOi be did
and thoogh he .had refnaed to o
Med tbe matter mntti eflospHas*
^officer, yethealM^Miai^llw MMb
brother coold 'not uupuit isiy "ft^l
ibtm ; seeing resetting in IpwavtM
eafinff, abatraSw, or fihldarays liM
Jna^BM^
be remitted,
XhecoyMJI
and begs
bisio^
thing toimds his assistanoe, yet he i
couMdedthat des^efndai^
lord Areyle, then a decfaned J
beoonmsed tbe matter of fiu^
ingtheoffioer,
inghis '
a^^nstl
a ooneealinff, abatra^mg^,
from beiiur bronght to justice or \
whereaa his broUier these ef
convened openly at kiik
aU ranks or persona, eten with the
(^theking'a army, unqnestioQed hy^ai^vfll
went to London and cinnpoB|ed'the gift ef lil
own forfeiture, and took it in another peii^ ,
name (because he himself reftised the oed»^
tion) but to hisown behoof; so Aat DocM
was in hmafide to converse with him ; aaJ it
was nothing but parsimony in not bestovsf
theexpence that kept himfiromaremissioB; sd
this not bein^ adverted to, be has infSBded dl
the gentry in the west by oonTersin| wilfc
them. As to the second, answered, Untli
knew not certainly if sir John Codirane bmsmI
my lord Argyle, when be craved the siAdd
ance and contribution, lido. There was sisi
present who heard sir John sedc it hot InsMdfi
so if he bad revealed it, he coold not bus
proven the san^ei and thus by the40di ^
pari. 1587, succumbing in proviM aaoth*
guilty of treason he became gnilty of tbe mm
triason himself.— Yet regent Morton ww «»-
cute for' concealing, thoiii:fa beoonldnst h^i
proven it. See sir George M'Keua. Ciinipbi
psge 48. who thmks this eooceafing to be ss
treason. It was great simplicity in Dncbdi
to confess ; forth^ havingno way of pc^^^ifg
if they had refened it to bis oaUi, it wpl
have restricted the hazard to an arbitiary fsiSi
But the reset would have forfeited him, wM
he had purged and restricted it, by lakkf *•
test ; which be would not do. dtiOi H«tt*
Isdged what was given to strenftboi a iM
to rise in* anna were certainly tMM»t M
here it was oo^ chanty
^] STATE TRIALS, 56 Chables U.
and vrliifih is more, he absolutely denied
' ' .1 HI at all. The privy
^ 's qualrfied confession
ill* V iir('|JiHsetl ibe query to the
mn^ iis the kia^'s er^ai coiinci]
I who hy liis letter were appointed
! secrft ci>mmittee advice id dubious
itiil ihi^v, by their resoluUou under
ild i>iii the very concealing' the
)i ' V towards the f^upport of a
iruitor Was treason. Yet this ivas
L?cry remote ; for Juio, There is the
eUVho stands guilty of the treason,
is the iuierposed person who de-
lie coutribulion* money for the traitor^s
lliis is also treason in him. 3iio^
i wha gi?es it. But the naked coo-
I refys^ to give it| he is only in the
: so to reason at this rate, to
committed by another lauded
^ treason in the not revealer : only
fcTcnce is, nidiiijif a rebel with money ^ is
D by the commoo law ; but theft m a
aiaii is only treason by a speeial statute
s» oixd so Jictianf juris not to be extended
caiHivi ; or rather this example, ii
ribat another man harhoura a rebel on
d, I am as guilty as the resetter, if I
him. However^ on this sub-
^mion of the session, the commis-
f justiciary found the dittay relefant ;
kize foimd it proven. Ho he was
of treason. But tlie time and
^h: ' V It ion was referred to the kin^%
i'. : V for a reuiission ; for it ap ^
tU.«. L,it j^ only aimed at his estate,
, will be 12,000 merks per annum, — All
1 68S.~Ctf5e of the Earl &/ TarraM. [ 1066
this procedure, to prevent quarrelling^ is rm-
tifted by Uie 7tli act of pari. 1685/'
The act «if parliament is as follows :
*^ Act anent Porterfitld^ tf Duchall^ and foa*
* cealing of Supply giten ia Rcbeit^ May
* 6, 16B.5.
• Our soverai^n lord, and states of parlia-
* roent, do ratihe, approve, and contirm the
* senirnce Gf forfalture pronounced by thecom-
* missioners of justiciary against John Porter-
* field, sometime of Duchall, and the interlo-
' cutors, and whole procedure of the saidscom-
' missioners in that process. And declares, that
*■ the same was conform to the laws of this king-
' dom. And in general, statutes and declares,
*■ that the concealing and not revealing of sup*
* P'ys ^'^" to« Of demanded for traitors for-
* faulted for Ireasou against the king's person or
* government, is treason, and to be judged ac-
' cordiogly.'
WodroWj after observing upon ** two other
most iniquous acts,^^ savsof this ** their third
act this day runs yet deeper, and was framed
not only lo look back to what was past, bui to
catch a great many gentlemen and others and
to bringthem to ruiii ia their bodies and estates.
The illegal and harsh sentence passed by tha
Justiciary, at the direction of the Council,
against that excellent gentleman and christian
John Portertield, of Douchal, mafle a terrible
noise, and was plainly enougli perceived to
have been in order to gratify a particular ma-
nager with his estate. It was necessary then
cjr poMt factoy to confirm this sentence by a
posterior law/*
I. Case of Walter Earl of Tarras, for Treason, and recepting
of Traitors; 36 Charles IL a, d. 1685, [Now first printed
from the Records of Justiciary in Edinburgh.]
A J' . S. B, N. Regis tenta in
Frti * do Kdinburgh, Quia to die
messis, Juittmrii, millesimo sexcenlesimo
age»into ijuinto, per Nobilem etPoten-
I'omitemt C«eorgium Com item ^
' hgaw, Justiciarium Generalem et
virus Dominos Jacobum
tidp CoUingtouu, Justiciarium Cleri-
Miaonem Lockhart de Castlehill,
[Datidem Balfour de Forret, HagMiuro
LHog de ilait^rss, Alexaudrum 8eton de
et FatTiciura Lyon de Carss.
liooarios Justiciar ice dicti S>D*N.
Coria legitime affirmata.
lafmn,
\9tt4r earle of Tdrr«, prisoner,
TED and accused,* that wher notwith-
^Tlua eatl of Tarraa had married the
f of Monmouth^ s ekier sister. Of his
illy to the dca<ni€tioa of Baillie,
standing by common law of this and all well
governed nations^ the conspiring to overturti
the government of t)je nation, or to assist such
as designe to invade lite same, or the conceal*
ing, and not revealing of any treasonable d is*
course tending thereto, does inferr the paine
and punishment of treason, and by tlie thu d
act of the hrst parliament of king James the
firsts and ihretty seventh act of his second par-
liameui,*" and by the nynth act, t welt h p:ii4is-
ment of king James the second and ane hun-
dreth and forty fourth act, twelth parltnincnt
of king James the sext,f It isstntiue and or-
dained that no man openly nor notourhe rflbell
against the king's persone or autl^iority« or
the uncle of Tarras's Mcood wife, an account
appears in the Trial of Baillie of Jeniswood,
p. 647, of this volume.
♦ 8ee these two Acts in the Case of Lord
Loudoun and others, p. 9B9, of this vol.
f Sec as to this, the Case of lord Loudomi
and others, ^. 99't»<jtX\iVisi^V
1067] STATE TRIALS, 36 Chaslbs II. l€$5.-^Caieofike Earlo/TarrM, [lOES
mike warr a^^tt the Idng^'s lieges, and that
wher Kay traitors or rebels repairs in any part
of this kingdom, none of his mi^jesties hedges
shall presume to recept, supplie, or intercomune
whb them, or give them any meat, drink, hons,
harbour, or any relieff, or comfort, under the
same pain, for whilk they are forefaulted and
pat to the horn, and that immediately upon
knowledge of their repairing in the bounds, all
his nuyesties obedient subjects doe their exact
diligence to the uttmost of their power, in
•earching, seeking, taking, and apprehending
tha saids rebdls and traitors, ana presenting
them to justice, or in following of them till they
be taken, and expelled and put out of tlie shy re,
and that immediately they make intimation to
th^ magistrates and persons of power and autbo-
ri^ in uie nixt shyre, who shaU be hdden to doe
the lyke diligence without delay, and sua from
diyre to shyre, till they be aupreliended, and
brought to justice, or expellea and pat oat of
Ibis reahne ; and farder, when ever any manner
of trators and rebells happens to repair in the
coontrey, all his majesties Hedges knowing
them, or amongst whom they resort, shall with
all iMWsible speed oertifie his majesty, or some
of bis majesties pri?ie councill, or some of the
chief persons ot authority, or credit, dwelling
within the same shyre, that such persons (if
they be known) are within the same, and if
they be unknown, showing thehr tockens under
the paines that tiie rebells and traitors ought to
have sustamed in their bodies or gx>ods, thenr-
aelres, in case they had bein apprehended, pre-
sented and convict be justice. And be the four-
teinth act, sixt parliament, king James the se-
cond,* it is dcciaretl that all wlio shall recept
such as are justified by crymes, if the crime
be nottour, and thu trcsspassor convict or de-
clared guilty, are ordained to be punished as the
principall tresspasser, and by the nyntie se-
venth act, sevendi parliament, king James the
fyfth, all sheriHs, bailzies, and oUicrs, are or-
<{ained to due diligence to apprehend all rebells
who are at the horn, for capitall crymes, and
that no man willfully or willingly recept, sup-
plie, mantaiiie, defend, or doe favour to any of
his majesties rebells, and being at the home
within their houses, bounds, lands, and bailziea-
ries, under the paii^e of death, and confiscation
of moveables. And by the i'yiXh act first ses-
sion of his majesties first parliament, it is de-
clared, that it shall be high treason for the sub-
jects of this realme, or any number of them, less
or more, upon any gn>und or pretext whatsoin-
evcr to rise or contin iic in arme8,to make peace or
warr without his majesties si)eciatl authority and
approbation first interponed thereto. And be the
tirst act eighteinth parliament, king James the
sixt, the estates of parliament faithfully pro-
mise perpetually to ol)ey, niautaine and de-
fend the ]>rerogativc royal of his sacred majesty
his airs and successors, and priviledges of hus
I Midlines crow n v* itli their lives, lands and goods.
* ,\^ .'* litis, t^.v the Case of lord Loudoun
o'.i;- :o. ;i, Intbre referred to.
And be the second act, aecood session of bii
ies first parliament, It is statute and
lained that it any person or persoos abai,
berefter, plot, contrive, or intend death, or
destruction to bis majesty, or any bodily harnt
tending to death of destruction, or any reaCrnit
upon his royall person, or to deprive depose or
suspend him from the style bonour or the
kinglie name of the imperial crown of iftii
vealm, or any others bis majesties domiMi^
or tosospend his majestie from the exercise ef
bis royaU government, or to levie warr or I^k
up ormes against bis majestie or oay comIi
aionat by him, or shallintyse any strongcn Is
invade any of bis majesties dominions, and lUI
by wry ting, printing, and other malioiOilB mi
advysed, speaking, express and declare wtdk
then- treasonable mtentions, efter sneb pcnn
or iiersons being npon sufficient nrobatieale-
goUie convict tberof. Shall be deemed, de-
dared and adjudged traitors, and shaU idfcr
forefoulture of life, honours, lands and mil,
as in the cases of treason. Lvk aa, by rnee-
cond act of his majesties tnird pariiaftf
It is declared high treason in any of the sdb-
jects of this realm by wryting speaking orloy
other mtoner of way to endeavovur tnt odv*
pation, suspensiou or divertion of tbeiigllfll
succession to the imperiall crown of this I
or the debarring the nixt lawfull i
the immediat actudl, full and free
tion of the government conform to the lawoi rf
this realm, and that all such attempts eal
designs shall inferr against them the pamif
treason. Notwithstanding whereof therbci^f
a treasonable d^igu in England, for liseinff is
arms against tne king our soveraigne (wm
God preserve) and for killing or at least seixin^
on 1 1 is sacred person, and the person of ha
royall highness, and for forcing his majestiBM
condescend to such proposalls as they the Mid
damnable conspirators should make, ther wm
a Juocto lykewayes of the Scottish natiaa
called up by them, and who did meet and m-
scmble themselves together at London, in the
moneths of February, March, April or Hij
1683 years, at which meeting were preiQl,
The lord MelvilK Mr. Robert Baillie of Jmii-
wood, sir Hugh Campbdl of Cessnock, and or
George Campbell his son, Montgomerie ot
I^ngshaw, sir John Cochran, Mr. Aobert
Martine, Mr. William Veitch, ane outlawed
preacher, and declared and forfault traitor and
others. Wher eflerthey had most ireasonablj
and seditiously misrepresented his uiajestifi
government, (tspeciaily in Scotland, and the
administration of his royal highness his an-
jcsties commissioner, and his judicators dieRt
therby to excite one another to the desicpcd
conspiracy and rising intendetl against him,
and to serve as a pretext and blind to excsK
Scotland, and he earrj'ed letters, particulfl|T
a letter from the said Jerviswood to the M
Walter earle of Ttorres, abd the aaid Kr. N»-
STATE TRrALS, SfiCiURLBsIL l6*5^er Trtaun.
[I(ff0
W9vn$t Bfiyvrd here in 8eotltttid^ in the
Ik «f MujTt l6HSye8Li% be did a«likess
'Tlo tb«f Itiird of Torwoodlie, and tliey
! taint of Pohvarti PhiUphaug^li, aod
Viilter earle of Tarms, and be tore
tJie Mid B€r* Robert jM^rtyne,
{ Walt«r carle of TarraSf or at ietal
ftikf^ earl^ of Tarraa and the said
iu^b did ulk of a nsiiig^ in armes upon
'^*'"i, if tbe coiiiUrey |iariy in Eug-
b*ri thou ^b is cd' ^iiig' to arni«,
! iKit fit io tbai Ciiiie to seiy.e upon
id' state, and other officers \iere,
mir|irixe Benviok, and bis tnujesties
i ol 8terlin^ and ottjere, and 1ms troo|)S
mud dragoons trithin tiiis kingdom,
the said WaltAir earle of Tarras
dloivsbeills, wher be did meet with
ol* GttUowsbtuUs and Polnart^ and
IiIm^ a^id (jjiiiiiall had tnx'd if the laird otf'
hWh ^^oM be seCTCt, be did ai ia^
ilk of rysing in arms, and of con<
titb the Ule carle of Argile a declared
who shoidd land in tbe West, and of
the kins' hy petitiooa or by tbrce to
I iita foyalT brother, and of <fely veriiig-
la ■ IciRal try ail aa a sure remedy for
all diMCikfB, and repairing all dis>
pud repairini^ all grievances both in
, and as a certane ste{»f> for
n tbe suocesaion to tbe im-
E>Ho, of tills his majesties anncient
And if this was not done to the
' ric the 0|iportumEy would be
overtures were concerted
'. f>ariuai s irtends at Londoo, and the
tie (for so he called the saids con*
|iind then it was positivelie talked off,
} other of them that upon the certaue
"Soghf'*"'^ Vx. .t,o|. IP the fields, those of
uihcni »> lild presently rise and
; mail, _:, u.^y could who should be
al niiii stragglerH^ and tbat officers
Ititetl to command. And that then
of Argile was to come from
1 sir John Cochran from Eog-
\ the wtst (vjuntry, anil ther was a sign
rord appoynieil fur tbes tbey call honest
i Imow ane anotber by. And that upon
rs the said pannal and they were to
I iMJ, tl»ey were to meet upon
Iter. Which overtures or
i iiiL'm, the siiid Walter earle of
inade or beard and concealed
r at Icnat he did talk what was to be
I should rise, and did treat of
or thr late earle of Argile a de-
r, lOiiie assistance here ; or tlie Kaid
nQ^ present wher these or some
urea as tlM» wer treated be did con-
L^fweai the same n. Through the
^ whieh erymes aboTe written,
INi,4ii« was gudty of the com-
Trgjiaom and h actor, art and
Iwhich being founil be ane as-
Jhfk la be nunish(?d with forfaul*
takfidip ina goQik^ to the terror
and ejEatnple of others to committ the Uke her*
eaer.
Persaoer, — Sir George M*Keuzieof Itos^'
haugb, his Majesties Advocat.
His Majesties Advocat produced a Warranit
of Prif y Council, for persewing and insisting
against 'the said earie, whcreoi' the tenour lol-
lowes :
** Edinburgh the day of November 168.J,
the Lords of his Majesties Privy Councill
doe heirby give order and warrand, to hia
Majpsties Advocat to persew a proces of trea-
son before the Lords Commissioners of Justi-
ciary, against Walter earle of Tarras for tlte
crymes of treason and rebellion, and othert
wbereQ|Km his Majesties Advocat shall indyl
him. Extract by me,
Sic SubscribUur. Wiliiau Patersok.**
Tbe earle of Tarraa produced a Petidon
under his hand direct to tbe king's most sacred
Majesty, whereof the tenor foUowea ;
** To his most sacred Majestie, tbe humble
Submission and Petition of >VaUer earle of
TairaSt humbly she wet b, Tliat his Majesties
petitioner liaving rec^ved ane indytment of
High Treason, at the instance of his Majesties
Advocat, for the crymes of treason therein
mentioned, and the petitioner being concious
to himself <tf his haynous guilt therein, be is
resolved in place of all other defences to U>rough
himself at his Majesties feet, and submitt ta
his Majesties mercy, his only hones and trust
being in his sacred Majesties clemciu^y and
goodness, that his Majestie would be graciously
pleased to J»ardon tlie petitioner's crymes uud
by tbe sparmg of bb life, giving htm opportunitjr
for tbe tyme to come in some measure to ex^
piat his former cryms and offences by bis
uutifull and loyall tUportment to his Majesty
and bis successors, v* Inch by the grace of Al-
mighty God, the |)etitioner will for ever her-
efier inviolablie preserve, Su he doth most
bumbhc acknowledge hiti ipfuilt conforme to hit
Confession given under his band to the Lorda
of the Secret Committee the day of November
last, to which he dues adhere, and holds the
same as liere repeated, and freely coulesac*
that by his crymes therein spcci(ie<l, liis Ufe
and fortune are justlie at his sacreil Maiestiea
mercy, and seeing now \m Majesties petitioner
has a deep sense of the Im i . s of his
guilt, and a just abhorrenc*- trcfison-
able principles and practices, .um, .wndi he baa
lieen formerly grossly mislead to lii>t great rc-
grate. — ^Tberfore, hurti'«l^ * i-iviuo; lijg $scred
Majestie to take tlit- > case U> his
commiseration and ac* ^ his MajeaUet
inherent and usuall goodnei^ ami clenieiMsy,
to his penitent subjects), be grac-ioutly pleased
to grunt mercy and {>ardon to tbe |ietttkKier,
and he does faithfully prouise as a Cbrktian,
and a gentleman, that he shall f>v«'r be a lo^'all
and fsitlifull subject to his. sacred Majestie and
bis royall suooesaors.
1071} STATE TRIAL%»SCHAftLMlI.
.. The Lords hmBtfcoimdarisd the iBd^rtment
peneired be hii Bf^eetiet Advocat, asaiiiit the
«u1 of Terras, they find the fame rdoTant as
lib labelled to ioferr the^rymeof treaipa/
and nmitts the same to the Knowledge of the
A8818A.t
The Barie of Strathmoir.
The Earle of Laoderdale.
The£aileofFtoniah% .
The Earie of Bdcarras.
The Lord Gfuidair.
Tl^ Lord Baigany.
TheLordRolb. ^ .
The Mr. of Balnuninodi.
fib Waiiam Dougfasy of Caivers.
Sir WiDnm JlroinmoBd, of HalthoRiden.
. ficottofSootstarbat
Sir James RiohardsoD, of Smettonn.
Sir Alexander Torbes, of Tolqahon.
8r Robert Baiid, of SangfatoohalL
Jfr. John Bayne, of Ddney.
The Assyse lawfully sworae, no olyctiori of
^ law in the contrair.
• Conoemmsr Interlocutor of Rdevanoy»
nee p. 1061, of this folnme.
t We in some measure ni^ regard to the
maidm of trying a man b^ius peera, or per-
sons of a di^gree not inferior to bis own. In
this view, our pradiee seems onoe to hafe ro-
qnned, that the ainne ftr tbe trial of a hmded
man should an be men of that condition ; and
if he were a baron, or immediate vassal of the
crown, that at least half of the assize should
be barons also. To which effect jud^ent
was giren after full debate, in the trial of
Dou^as of Spott, for the murder of Home of
Eccles, May 9tb, 1667. '' The Justice findi&
the objectiouD against tlie present assyze rele-
▼ant, and ordeins the perscwars to summond
ane new assysse to the fourth day of June next
to come, to which day they contmue the tryall
of this actioune ; the most part of which as-
syse to be of the laird or BffOti his owne
qualitie, vizt. Barouns holding of the King^
and the rest landit gentlemen, holding either
of the King, or of anc^ uther superior be
chartir." In later times, without relinmiishing
the principle, our Judges have thus tar con-
Teniently modified the rule for such cases,
that a majority only of the assize are landed
men, and these, indifferently, vassals holding
of tbe crown, or of a subject.
** Accordmff to certain old, but not very
oondusiTe authorities, (Statuit.Dominns Rex,
quod nullus debet recipere judicium, neque
judicari, a minori persooft quam a suo pari ^
scilicet. Comes per Comites, Bare per Baitmes,
Vacassor per Yacassores, et Burgensis per
Burgenses. Qooniam Attachiamenta, c. 67 ;
also, Skene on Crimes, c. 4. sect 3.) the same
maxim was to beappUedtothe case of noble-
men also', who were to be triad therefore by an
r of ptnoM of their own nigh
l6H^^^am qfUiA EmrltjfTkmi
His Mitjaiia Ad9ocat for Phibati
the pan DalL*s judicial Confession .in ]
the J^tices imd Assiier% wherof th<
luwea :
Walier earl of Ikrra$, aAer rend
iudy tment in presenea of the Jnstic
steers, confesses that about the qr n
Cocbrau aud commiaiar Monro goCt
missioti fhv t be CiroUna bonness fro
Mr. Robert Bailhe, of Jenriswood, <
paQTiall tu speak to CommisBsr Mob
be cauU get him added to that o
and that Jerriswood told the pann
was to goe to London, however npQ
expence^, aiid that his and their g
the CaroUua business was hot a pr
a bltad ; but that the true desigiie f
farwanl the neople of England, {
doe nothing out talk) to goe more
about the business and doe somthi
fesses that Jerviswood did setlen
dance with him the pannall, whei
degr^. But, although it often ha|
DoBlemeQ were summoned to thi
such occasions, as there was an ol
ptiety in granting snch an indulg
it c<)uld ooiiTeni^tly be done; yet
appear that we ever came to ackm
absolute rule, of composing a
assize either entirely of noblemen,
the inajrjt- part, but only of landed i
indi^ for long, and until the iiilles
or parliamcatwy representationy tl
noble tnen and other barons, or imn
sals of the crown, were truly one an
and therefore peers to each other i
se[)|e of law. Thus, on the tiii
Doitglas, lady Glamyss, July 14ih,
1537, for treason, only fiye noblei
the atrai/,e; on that of the eait •
Fchruarv 1st, 1615, eleven uoklen
four landed men ; on that of lord
February 1 1th, and March 20th,
nohlemeii, ^ix baronets, and one li
on ttiat of the viscount Frendra
4th, 1664, two noblemen only, loi
and lord Dankeld ; and on that of
Argyle, December 13th, 1681, i
men, ajong with eleven noblemen
more express ; on November 14th
earl of Trai|uair [see MS. absti
book» of adjournal, in the advocat
for there is not now extant any ori|
of 1655'], havine claimed a jury a
the judges of that time found in
that the precedents which he appea
only in cases of treason, and theref<
his p!€a in law ; but cj gratUiy app(
noblemen to sit on the assize alon
others, who were all of the deg
ronet,'* Hume's Comment, chap.
S, p. 97, et seq. See also in this
the Proteet of lord Linlithgow, ml
the eart of London^ p. IOOS9 of tl
I Set too p. 1043.
STATE TRIALS, 3$ Charles 11. i685.— /or Treason.
ri074
^ aCMiint tti the pannall, what should
lh« I'utmti'ey party iti Eno^lantlt
itKmtn tlier. Ami on ihe other liao«l,
11 was to write to him what occurred
ronff*^t*!« that JerTi8vvo<»d sayd to him,
r the purJimnent of Eiig-
Biil of Seclusion, that.
the oulv \yii'y to secure the Protesitant sure reineily ihr settlincr all disorders^ and re-
I Confesses' that Jervii^wootl said to
fc ' ' -htbeindurcd to do so if
It ike sharp, or brisk oiea-
^iti ii;u«, or tmriyke \vor<ls. Confesses
krdjt weiT spoken by Jerviswood to him,
^.. i,,,",!,„f_r of the last session of this
ritf and before Jen'iswood and
i^ u **eDt for London* Con-
li Jerviswood went tor London,
' rum all ane account by letters,
were in g^reat disorder ther, and
■ thcr would be eflectual courses
remeld them. Confesses that ^Ir.
iil«jrtyn«?catue to Torwoodlie-s house,
11^83, or « hereby, and brought a letter
looalt^alady unsubscribeil. but the pan*
kwea tt was Jer vis wood *« write, w\m
I at London, and that 3Ir, Martine lohl
nal), that thio^ in England wer tu
lorder, and lyke to come to ane heiglit,
tbecountrey party wer considering on
lor securing' tlie Protestant religion ;
; Archib;ild soratyjue earl of Arg-yle,
Set ten thousand pounds sleniog-.
rettie thousand pountls sterKng^ was
ijr the Scotsmen at London which was
tover to Holland, to provyd arms, and
ble Argyle was to land with thes
the west hig^hlaods in iScotlnnd, and
rawoo<l was to be sent over with the
Confcffiies that Phihphaugh and he
GaJlowshtePs house, wher they met
Iwartand Gallowsbiels, and that it was
I 'u HI tber, that in case those ia
|( rise in arme<i, that it wer ue-
i - *hat so many as could be
I , should be in readieness
|v ».^->.-. , and seiaie upon horf^es,
Mter tbey should joine with those that
famis on the horders of England, Con-
I case forsaJd, it was said tliut
I tJie castle of Slirline, Ber-
iOiiia other streugths should he
ipon, nod that the king^s oiiicers
should be seized upou^ and it \vai
e» spoke off amongst them, that
>na Hhould be imployed to en-
bat armes was in that countrey.
that it was spoke there^ that tfie
for Argyle, was to kind in
"^ there was a sturre in England,
f>rds to that purpose. Con-
""'* J.'v;if.|i anotht^r to speak
►s I hey could trust
;:, liitrtfu' ilfUlU SUp-
(' lud, con-
rr ^ ^ uu*m ; and
told by IM)iii[jhuiigh, therefter,
ftm A ivortl aud iigati used ajuougst
them, VIZ. the signe was by loosing a huttoo
on I he breast, and tliat the word waij * Imr-
* mony,* Confesses that at the house of Cial-
lowshiells he heard it spoke ofl, that the king
by pt-^Utions or force, might he brought to uban-
lion his rayall brother, and to delyver him to a
legall try all, (or words to tiiat purpose) as a
pairing all grievanees, berth in England and
Si^tland, and a certane step for secludiiig the
duke froju the succesaiion. And lliat he heard
It talked ther, that sir John Cuchrau was Ih
come to Hcoilund with the rest of the 8c«tsmeu.
Sic Subscrit/ttury TAttius,
LlNLlTtiOOW L P. D«
James Murray of Philiphaugh, aged threlty
years, marryed, purged and »ivnroe, <ind his
former deposition tiiiiifed by hini, and rrnewed
before the justices in the tryal against Jervis-
wood, being now againe publictlie reail in pre-
sence of the ju^ices and a^^sizers, he judiciallr
adhered tbereloin all poynts, and thut the same
is truOi, as be shall answer to Goth
Sk Sii bicribi tar, J a . M u aiu y .
Hugh Scot of Galtowshiels, age4 threttv six
3 ear*!, maiTyt'd, purged aufl sworne, an(i his
former depoyitluns emitted by him, and reurwed
before the justices iti tUf 11-3 all against Jervis-
wood, bemg now again publictlie read in pre-
sence nfihe justices and a-ssysers. bejudlciuHy
adheres thereto in atl ptiynts^ and ihirt the Kama
is trutli, as he shall ansi^er 10 GonI,
Sk JSu bicribit u r , Fl u Ci u 8c ot,
LiNuniGow i. P, D.
The Lords ordaine the Assysers to inclo&e
and returne their Verdict to morruw, at twelve
<*'clock.
CcRiA JusTictARi^, S. D, N. Re^ tenta in
Prcttirio Burgi de Edinburgh, sexto die
mensifl^ January millesimo sexcentesimo
octuagesiino qui nit*, per Nobdem et Po-
lenlem Comitpm Georgium Comilem de
Linlithgow, Justiciarium General em, et
lifinurabdes virus, Jlominos, Jacobum
Foulis de Collingtoun, Justiciarie Cle-
ricum, Johannem Lockhart de Castiehill,
Davidem BaHour de Foiret, Rfigerum Hog
de Rarcars!^, Alcxandrum Setou de i'it-
medden, et Patricium Lyon de C'at^s
CoinmLssionaris Justiciariie dicti S. D. N.
Hegis.
* Curia legitime atilrmata.
The said day the noblemen and gentlemen
who past u[ion the Assyse of Waller earle of
Tarras, retuni**d their \crdiclrii presence of the
saids lord^, wherof the tenour fbllowes : ^
** The Assyse by their unaninious voice 6ad
the cr3fmes of art and part as lieing upon the
dofurivunce of the conspiracy lybdieti, and in
con c«; a I log and not revealing the same, and ol
hm accession to the designe of *et:luding his
nn'allhiglmess the duke from tUe ^wcsx^'*^'!^^^.
proven agtdfu^t V\ f^vsi %».t'WQ^'\'4\\%% ^« ^^i«s^-
3Z
I
1075] STATE TRIAIA 36 CHABtESlLl685/-a»f^l*eJS«#i!frtfrr«, [M75
. nail, in respect of the panDall's confession and
petition, and the deposition of the witnesses ad-
duced.
ak Subscrib. Lauderdale, ChonceHor.
After reading and producing of the whilk
Terdict of assysc, the lords justice general,
justice clerk, and commissioners of justiciary
" thecfor be the mouth' of James Johnstoun,
dempster of court, decerned and adjudged the
Shid Walter earle of Tarras to be execute to the
death, demained as a traitor, and to nnderlye
ilie paines of treason, and utter punishment ap-
pointed by the lawes of this real me, at such a
tyme, place, and in such manner as the king's
most excellent majesty shall appoynt, and or-
daines his name, fame, memory and honours to
be extinct, his blood to be tainted, and his armes
to be riven furtli, and delate out of the- books
of armes, sua thai his posterity mav never
have place, nor be able hereilcr to bruilc or in-
joy any honours, offices, titles or dignities,
M'lthin this realme in tyme coming, and to have
forfault amitted, vl-mI tint all and sundry his
lands, heretasfcA, titles, othces, tacks, steddings,
roomes, |)ossc>ssiunei, goods, and geir uhatsoni-
cvcr i>ertaining to him, to our soveraign lord's
use, to reraaine pcrpetualiie with his highness
in property, which is pronounced for Doom.
At a Mectintf of the Council, apud Edin-
burgum, Quario die Februw i;, 1685.
The Letter under written, direct from the
king to the coumnll, givt Imit order for Walter
Earic of Tarras liberty upon his j/iveing ufoo«l
and sutficicnt st;r.urii v in llie teriiics mviitioncd
in the s:iid l.<*Ut'r being leud, was ordered to
be r(!Conird in the books of piivic cnuucill,
and the clerks wer appoynti-d to prepare the
draught of a remissiiMK; to hiui i'or his lyie
only, in such tcruirsas the* councill shall think
reasonable ; and upon this ryse, it was or-
dered, That all sigoaliires for remissions here-
after shall bear, tiiat the same are to passe in
the ordinary forme, and not pfr suUnmy as has
Ix-eu of late dune, of which letter the tenor
follow cs :
' Charles R.
* Uiglit trusty and rijjl it well beloved cou-
« sins and ecainceilors, riLfht trusty and well
* bel!iv«.<l cousins and eouiicellors, rii>[ht trusty
*■ and well beloved counsellors, and trusty and
' well belovtd counoellors, Wee j^reet you
* well. W bereas in compassioue of the con-
* diiioii'Mjv U'aller Scott, late earle of Tarras
' (now a prisoner tlicre under the sentence of
* riiiideiViiiutlone for high treason) and in con-
* sideratione of the great penitenee sheweii by
* him as well lieforc and at as shice his tryall,
* wee are now graciously resolveil to grant him
* a rcmissione as to his fife only, in such termes
< as you shall think reas«)nable to advise us.
' It is now our will and pleasure, and wee doe
* bereby authorize and re^uyrt you to teU
< him at liberty, npoo hia gnrong gsod tad
< sufficient security for hia appearanoa befiiit
* you at whatsoeyer tyme or tyoMa he M^
' Be by you tbereuuto requyred, and to cauK
* such a remissione to be drawoe tbeie and
^ sent up to oup sacretariea of state, ftrtbtt
' our ancient kingdome as you shall judge ita-
' sonable to be granted unto him in the tanM
( atbresaid, which shall be soon signed by m
< and returned, in order to the securHy of hii
' life and personall freedome, with bis reitu-
*• ratione to his natue, lame and good rppoti-
' tion ; for doing all which these pretnti
< shall be to you and all others respecti? dj,
* who may he therein concerned, a saffioMt
< warrant. And so wee bid you heartily &k-
* well. Given at our court at WhytehiU d»
* twentiieth and nynth day of January, 1684-5,
< and of our reigne the 36th year, by his ■!•
* jesty*s command.
Sic Subscribilur, • L DaoMMOi*.*
The Lords of his majesties privie
doe hereby recommend to the lord hiffh dm-
cellor, to give warrant for the said Waller hH
earieofTarrasUbertv, upon his findmgseci*
rity in the termes of nis majesty's letter, under
su<'h a penalty as his lordship shall think ftt,
and to give warrant to the clerks for receansf
the security, and his lordship b to designe thi
penalty.
And upon March 10th, the earl waaaHeMi
by the Council to go to the country fi»^
health upon his bond to compear when ciiMi
On the 16ih of June, 1685, " AM and whit-
soever the lands, lonlships, baronies, JiereligBi
roums, possessions, milns, woods, fishings
tacks, steedings, teimls, annuabrents, palnm-
aijos, wodseiN, expyred apprv sings and KJ*"
dieations, castles, toweni, fortahces, hoofOi
biggings, yainis, orchyainis, annexis, connexis
tennenis, gowls and aikers, and all other hert-
tages, lands and estates whatsomever pertM-
ing and belonging to the earle of Tarras, iw
several other persons who ha<l of Ute beat
lbrrfaulte<l upon processes of treason, intent^
at the instance of sir George Mackenaie Hi
mdjesly's advocat against them, both before tbi
hitjh court of parliament and the comniissinaen
of justiciary, were annexed to the crown,* by
the 42nd act of the 1st session of king Jsmef
the seventh's first parliament. However, ia
the iollowing year was i>assed the fonowmj
act (29th of the 2nd session of king James die
seventh's 1st parliament:)
Act OF Dissolution in favours of tab UH
Eaiil of Tarr-vs.— June 15tk 16S6.
Our Sovereign LonI and estates of [
mcnt, taking into their considerauon, Thai bi«
majesties commissioner, as having special <yir*
ran«l and instruction from his majesty, ' ^
* As to this see a Note p. 1009, t£M
volume.
1077]
STATE TRIALS, 36 Charles IL 1085.— /or Treason.
[107S
propotad and ezpoanded in plain parliaraent,
Ibe crest beneOte and aikantafi^e, that did arise
to the crown and go?eninicnt of this kingdom,
Sdia full and sincere confession made by
aker lale esri of Tarras, of se?eral matters
•od circumstances, relating to the late horrid^
«aM|uracy, the discovery whereof, did in a
ippcat measure contribute towards the prevent-
pag the filial consequences and effects, which
flo apparently threatened the peace of his roa-
jasty'a dominions. As also the promises and
AsawmDcea given to him at the time of the said
discovery oi bis prince's bounty and favour upon
tkat account * : All which bemg proposed and
laid open in plain parliament, to the end the
three estates might irive his majesty their
jadgraent, advice and determination re intcfirAy
whether the same were true, good, and reason-
able causes for dissolving from the ci-own, the
luds of Robertoun, Howcleuch, and Borth-
wick Mains, with the pei^oents which for-
PMTJv appertained to the said Walter, late earl
^ Tarraa, and came in his majesties hands
r
_ the doom and sent cncc of forefaulture,
riffcs and pronounced against him before the
LBrds of his majesties justiciary, upon the
day of one thousand six hun-
fcd years, and were annexed to the
fpovB, by the 4 2d act of the fir&t sep«U)n of
Ait current parliament ; and the saiui c-Tfates
sf parliament, after mature deliberation, and
^piiBff and consulting anent the premisses,
|iii|p- hilly satisfied and convinced, that the
ftMHiiaM' services done and performed by the
VJl Walter late earl of Tarras, in his confes-
' discovery foresaid, and the benefit and
thereby accruing to the crown and
^«wufl, and the promises and assurances
rcnto him of his prince's bounty and favour
troth whereof is sufficiently known, and
VpS made appear to them, are just, weighty and
fapMtant causes^ concerning both his majes-
Hsmterest, and the public good and welfare
if this kiDffdom, that they snould advise' and
iMKiit to his majesties giving and disponing of
^swids lands of Robertoun, Howelcuch, and
BMrthwiek-Mains, with the pertinents, to the
\9i$k Walter late earl of Tarras, his heirs and
Higneys ; and for that effect, that the same
Asud De dissolved from the crown, and from
tftt foKfaid Act of Annexation . Therefore, U is
Ity, with advice and constant of the es-
'of parliament, decerns, ordains, and de-
that thesaids lands of Robertoun, How-
i, and Berth wick Mains, with the perti-
- ,may be dis|>«)ne<l to the snid Walter,
hit earl of Tarras, and his foresaids; and tor
Ibit effect, has dissolved, and hen>hy dissolves
Ihsaame from the crown and patrintony t here-
to aad from the foresaid Act of Annexation
*t
:*.Upon the Trial of Baillie of Jervisivood
tbGNrge M'Kenzic the king's advo<'atf\ in
^riHaiamg the admissibility ofTerras^s te<iti-
■mj, Mody thai the earl had not, nor had he
^ ' ; aDV security in order to hi« de*
\ p. 069 of this Volume.
made the sixteenth day of Jime one thousand
six hundred eighty nve, and from all other
acts of annexation, and from all clauses, qua-
lities, and conditions therein contained. And
his majesty, with advice and consent foresaid,
finds, decerns, and declares. That this present
act of dissolution, having proceeded uiM>n the
advice and deliberation of the estates or parlia-
ment re Integra, and i'ound hy the saids estates,
to be tbr^reat, weighty, and reasonable causes,
concerning the o^oud, welfare and public interest
of the whole kingdom, first pn)|)Osed and ad-
vised, and maturely pondered and considered
befure any preuous grant or other right or deed
given, made, or done by his niajesty , in favours
of the said VValtcr late earl of Tarras, and his
foresaids, of tlte lands and others above men-
tioned, or a,ny part or portion of the same, does
fully satisfie the whole clauses, conditions, and
qualifications contained in the forsaid act of
annexation, and shall have the force, strength,
and effect of a general law, or act of parlia-
ment, and shall be also valid and eflectua! to
the said Walter late earl of Tarras, and his
foresaids, for their security of the lands and
others above- exprest, as any other act of dis*
solution, granted by his majesty, or his royal
ancestors, with advice and consent of the es*
tales of parliament, in favours of whatsoever
person at any time heretofore. Likcas liiv
majesty, with advice and consent tbresaid,
finds, decerns^ and declares. That this present
Act of Dissolution shall not be understood to
to fall under or be com])rehended in any act
Salvojure,* to be past in this, or any otlier
* It was usual, at the end of a session of the
parliament of Scotland, to pass an act saving
the rights of persons who had not been heai^
previously to the passing of acts by which
their interests might be affected, 'this was
called ** Act Salvo Jure Cujuslibet." Thus, the
following was passed at the end of the session
in which this act in fovour of Lord Tarras bad
been enacted.
» Act Salvo Jure CujusUbctj June 15, 1686.'
< Our sovereign Lord, taking to consider-
' ation, that there are several acts of ratifica-
< tion, and others past and made in this session
* of parliament, in favours of particular per-
< sons, without calling or hearing of sucn as
* may be thereby concerned or prejudged.
* Therefore his m'njesty, with advice and c(m-
* sent of the estates of parliament, statutes and
< ordaiiiH, That all such particular acts, and
< arts of ratification past in manner foresaid,
* shall not j»rejud;;e any third part}' of their
* lawful riirhts, nor of 'their nrrions and de-
< fences coHiiKftentihiTeupon, bL*fore the iu:iking
* of the saids partieulflr acts, un<! nets of rati-
i ' fixations ; and that the lords of session, and
* all other jinlire!* of this kini^Iom, shall be
* ohlisrod to jin!«i"e lH»twixt pnrtios. according to
* th«ir several riofht»<, standinir in their persons,
^ l>efore the mnkintf oft he saids acts : all which
< are hcrrbv e\i»oned, and d(>clared to have been
* made ibu'vo Jure CujuiUbU?
« Octol>er ist, 1684. The earl of Tarns by
a petition casts himself on the king's mercy
hopes tt
Z079] STATE TRIALS, 1 Jambs n. l585<— TraJ ^ TUm» Oaia, [KRO
session of this current parliament, hot is here-
by excepted therefrom ia all time coming.
It appears, that Tarras engaged in the Con-
federacy preparatory to the Revolution, (8ee
4 Laio^JTt Vd6^ 187.) And he is one of the sub-
scribers to the *'*' Act declarins: the meetinG^ of
the estates to be a free and lawful meeting."
FautttainhaU'i Notices of thit Case are asfol-
io»$:
and will, acknowled^ his guilty i
it by his youth and ignoranoe; ^
obtain a pardon*
«« Feb. 5. 1685. The eail of Tarns't ranii.
sion »« passed, and he was set at Vhehj ont sf
castle, it only pardons him his fife, hot
does not restore to his title of honoor, (whieb
eren b^bre was only ad viiam^) and then wn
no account how his estate was to be dispossd «(
or how much thereof thereof they would allsv
to himself. Nota. It wm miWniwds aimezed
to the ci'own, by the 43d ad of paittiflMat
1685."
S22. The Trial of Titus Gates, D.D.* at the Kiug's-Bcncb, for
Perjury: 1 James II. a. d. 1685.
pray I may- hsTc some conrenieiiey ftrii
magii
L.C
May 8, 1685.
This day being appointed lor the trial of
one of the causes l>etween our sorereign lord
the king, and Titus Gates, for Perjuror; the
same began between eight and nine in the
morning, and proceeded in the manner fol-
lowing. First, Proclamation w^ made for
■Uence, then the Defendant was called ; who
appeared in person,, being brought up by rule
mm the KingVBench prison, where he was
in custody, and was advised to look to his
Challenge to the Jury that were impanneUed
to try the cause.
Oates. Mv lord, I am to manage my own
Defence, and hare a great many Papers and
tilings which I have brought in order to it ; I
* See bis Trial for Scandalum Magnatum,
p. 125, of this Volume.
^^ But now the sitting of the parliament of
England came on. And, as a preparation to
it, Oates was eon? icted of perjury, upon the
evidence of the witnesses from St Omar's,
who had been brought over before to discredit
his testimony. Now juries were so prepared,
as to believe more easily than formerly. So
ho was condemned to have his priestly habit
taken from him, to be a prisoner for life, to be
set on the pillory in all the public places of the
city, and ever after that to be set on the pillory
four times a year, and to be whipt by the com-
mon hangman from Aldfifatc to Newp^ate one
da)[, and the next from Newgate to Tyburn ;
1 have conveniency for his papcn.
7. of Cr. Cryer, iwew sir WiHiaBi M-
•Wl-
managing my own trial.
£. C. J. (Sir George Jefferiea.) Ay, w,
let him sit down there within the Bar, and fcl
him I
CL
son.
Oates. My lord, I except i
liam Dodson.
Ait. Gen. (Sfar Robert Sawyer.) Wklii
the cause of exception, Mr. Oates F
L.C.J. WhydoyoiidiallengeUmP
Oates. My lord, I hnmbly coT"^
these cases of criminal matters, the i
has liberty of excepting against any of Ibi
Jurors, without shewing cause, provided thai
be a full Jury besides.
X. C. J. No, no, that is not so, yoa m
mistaken in that, Mr. Oates.
Oates, My lord, I am advised so, I do not
understand the law myself.
L. C. J. But we will tell you then, it ca-
not be alio wM; if Mr. Attorney will
to wave him, well and good.
Alt. Gen. No, my lord, I know no i
for it, 1 cannot consent to any such thing.
L. C. J. Then, if you will not have hia
sworn, you must shew your cause presently.
Oates. My lord, I cannot assign anj
cause.
. L. C. J. Then he must be swonk ♦
* << In Criminal Cases, or at least in Capit^J
ones," says sir William Blaekstone, ConiiD.
wfiich was exccate<l with so much rigour, that Book 4, chap. 27, " there is in favorem rite
his back seemed to be all over flead. This was ' allowed to the prisoner an arbitrary and capri-
choiight too little if lie was Gfiiilty, and too | cious Npecies of challenge to a certain miaib^
much '" * ' . •*. \ . .. . « . ...... II
par
cli if innocent, and was ille^^al in all the of inrurs without shewing any cause at alli
ts of it: for as the secular court could not I which is railed a peremptory chall<»nge.'* Tbt
order ecclesiastical habit to be taken from him, , law respecting peremptory challenge is
sttle^
so to condenm a man to a perpetual imprison-
»nent was not in the power of the court: and
the e.\treant rigour of such whipping was with-
out a precedent. Yet he, who was au original
in all thin<;s, bore this with a constancy that
amazed all those who saw it. So that this
ti*ealment did rather raise his reputation, than
makiu" 1 Burnet, 637.
by the iccrnni Commentator with some \
cularity, and very satislactory reasons are »•
signed by Itiin for the estamishment of dial
provision. It is, perhaps, to be regretted, dtft
he did not eoler with equal particularity »ls
the doctrine of Challenge for Cause in Cnmiai*
Trials. BIr. Christian, in his Notes on Bkck- '
stone, says that a peremptory cballengs il sfll i
HI
STATE TRIALS, 1 James IL t6n5.^for Petjur^.
[1082
[!/. qfCr* Swear him.
'^ryer. 8ir Wi 1 1 iam Dfld son » take th e book ;
I &hdl well ahd truly Uy tliiii i^siic between
• smerei^Ti lord the king and Titus Ontes,
I trae verdict ffive according^ to l!»e evi*
ce; so lie!|> you God.
^/. o/' Cr, S\rear sir Edmnnd Wiseman.
was done,] liiclianl Aley, esq,;
was sworo.] Benjamin Sciitt.
r. My lord, I clmlEenge bim*
C* J. ^or w hat cause ?
7ate§, My lord, he was one of the Grand
' tiiat found thi> Bill.
L\ J. ^^ ti^ >;o ? That is an exception
; wIk .>Tr. Attori>i-y?
itt* Gen. \ U^hjve he was upon
iof the iadiiioi«mU, but! tliink it was not
in either of them,
\j we will not stand upon
C,J I>.
not Uv ^ *
ii. Gen. My
'e*ll wav<?him.
'LofCn Tli'-mas Fowfis,
' i«. Pray lift me sec that gentlemi^n.
was shown to him.] Are you not a
lith in Fleet -street, between t!ic two
? — fawlis. Ves, I awn
Oatt$* Very well, Sir, J do not except
against you, only I desired to know whether it
^creyouornotr
Cl.ffCr, Swear hira. [Which was done]
Thofnaa Blackmorej Peter Pickering", Ro-
^^h^Stf Beddinn field, Thoma?* Rawlinsoo, Roger
es, iworn. Edward Kempe, (sworn)*
!cf. My lord, 1 rhallen^e him.
C J. You speak too fate, he ts sworn
ly.
^atex. My lord, they are so quick, I rould
«peak, but he was one of the Grand Jury
C* J. We cannot help it now.
iit^ Otn. I did not know that he wa.s so ;
\ to shew that we mean notliiug but Fair, we
^content to wave him.
C. J. You do very well, Mr. Attorney
let him be wttlidrawn.
^L qfCr. Mr. K*'mp€, you may take your
swear Ambrose Islfd, [Which was
l} Beniy Collier, Richard Howard,
^L ofCr. Cryer» count these.
2^^^' ^'*^' ^^' ^^^ William DoJson. *
iL^Cr, Richard Ilowiml.
Ofycr, Twelve good men and true, hearken
wtd in any trial for a misdemeanor ; and
I refers aa to bis authorities to the decitiion of
eries in this Case of Oales, and lo the de-
I of Ijord Chief Just, North In Reading^'s
(^ee vol. 7, [k 364, of this Collectiou).
! piirticular phmseolog'y of Black!$tonc, and
t^otnission t« cite those decisions^ may fveem
dicate that he was not ahog-eihcr satisfied
with Ihese authorities.
* See Flawkins^s Pleas of the Crown,
. «, cb. 43, sect. 27, Ijeacb*s edit See,
I in tiui CoUei»U(mi voL Q^ p. ^88.
to tlic record, and stand together, and hear tb«
e?i<ience.
The Names of tlie TweUe sworn, wcr« .
these. Sir William DocUoo, sir Edmund
VViseman, Richard Aley, Thomas Fowlis,
Thomas Blackmore, Peter Pickering, Ro-
bert Bcdding^field, Thomas Rawtbson, Roger
Fteeves, Ambrose Isted, Henry Collier, and
Richard Howard.
Out IS. Before the counsel opens the caiwe^
I desire tti uUv e one thing to your Lordsliip*
X. C- /, What is it you would have ?
Ouics. Mj^ Jord, 1 have three witnesses
that are very^ niateriiil ones to ray defence, who
are now prisoners in the King's- Beneli, for
whom I moved yesterday, that I might hara
a rule of court to bring* them up to ^i^y^ but
it was objected, that they were m execution,
and so not to be brought; 1 humbly mov©
your Lordship now, that I may have a Habeas
Coriius for them, to bring ttcru immediately
hither.
L, C. J, We cannot do it.
Gates. Pray, good my lord, they are ? ery
material witnesses for me, and I moved y€»»
terday for tlietn.
L, C. J. You did so, but we told your
counsel then, and so we tell you now, we dui"
not do it by law, it will be an escape,
Outes, My Ijord, 1 shall want their testi-
mony,
L. C, J* Truly we cannot help it, the law
will not allow it, and yon nmst be satisfied.
CL of Cr, Gentlemen, you that are sworn
this jury, hearken to the'reconl: By virtue
an inquisition taken at Justice*Ha11 tu the OId<
Bail^, in the parish of St. Sepulchre, in the
ward of Famngdon without, London, upon
Weilnesday the 10th of December, in the 36tf
of the mgn of our (ate sovereign lord Charb
2, by the grace of God, of England, Scotlani
Frfince,aud Ireland^ king, defender of Uiefaitl
^c, before sir James Smith, knt, mayor of tl
city of I#ondon; sir George Jefferits, knt, ai
hart., lord chief juiitioe of this honourable court |^
sir Thomas Jones, knt. lord chief justice of tl
C-durt of Common Pleas ; WilUam Montagui
lord chief baron of the Exchequer; sir Jam<
Edwards, knighl, sir John Moore, knigbtj
aldermen of the said city ; and sir Tim mi
Jcnner, knight, one of his majesty's serjeani
at law, and recorder of the same city, and'
cithfrsj, their companions, justices of Oyer an^
Terminer^ by the tmtbs of twelve jurors, honest]
and lawful men of the city of Londou aforesaid^,
H bo tbcu and there being sworn and chai^ged
to enquire for our said lonl the king, and th«.
body of the city aibresald, upon their oathi:
|>resf nt, that at the sti^sion of our sovei'eign lord
the king, holden for the county of Mtddle$eiC||
itt Hick's- Hall, in St, J oh nV Street, in th'
county aforesaid, on Monday, to wit, 16 DeA
cember, in the year of Uie reign of our late
sovereign lord CLarles 2, of England, Scotland,
France, and Irebnd, king, defender of the
fiuth, &c. the thirtieth, before sir Re^'
^
STATE TRIALS, l James 1L \6S5.^Triai ^ Tthu OoUm.
Fostefi b&rt. ; sir Philip Maitbe«vSf Uart. ; sir
William Bowls, kt, ; sir Charles Pitfidil, kt. ;
Thomas RoUio&on, Humph re j Wyrley, Tho-
mas Hariot, and William Hempen, c^^quires,
justices Qf our s&id sovereign lord the king*, t(V
enquire hy the oath of honest aad lawful men
of the county ot Middlesex aforesnid, and by
other waytf manners^ mean«, by fihich they
lDi£:bt better know, as trell within liberties as
m-iSiout, by whom the truth of the matter
inay be better known and enquired^ of what-
voever ti'easons, misprisious oi treasonsj, insur-
rections, rebellions, counterfeiting^, clippings^
washingi, and false makings of the money of
this kingdom of Euglaud, and of other km^-
. iSoma and dominions whatsoeyer ; and ^if ^\ bat-
•oever murtlprs, fdonles, manslaughters, kill-
logs, burglaries, and other articles aod offences
in the letters patents of our said sovcpeigTi lord
the king, to them, nr any four or more ojf them
therefore directwil, specified; as also the ac-
cessaries of the same within the county afore-
•aid, as ivell within liberties as without^ by
whomsoever, howsoever bad, made, done or
committed ; and the said treasons, and other the
premises, tu hear and determine, according to
the law atid cu!»tom of ttiis kingdom of Eng-
land» being assigned by llie oath of Ralph
Wain, John VaughaDp Richard Foster, Tho-
mas Pa;fet, Robert Newington, Henry Tomp-
kins, Robert Hays, John Greenwood, Peter
SUmpson, Josias Croslv, Richar*! Ricliman,
Augustin Bear, John t^iog, Nathaniel Brett,
Francis Fisher^ and Satimel Lynn, honest an*!
lawful mt*n of the county aforesaid^ sworn, and
cbars^ed to enquire for onr said sovereign lord
the king, and the body of the county aforesaid,
upon their oaths : it was presentetr, that Tho-
mas White, otherwise Whitebread, late of the
parish of 8t. Giles in the fields, in tlie county
of Middlesex, clerk; WiUiani lr€land» lat^ of
the parish aforesaid ^ in the county aforesaid,
clerk ; John Fen wick, late of the pariiih afore-
said, in the county atoresaidt clerk j Thomas
Pickering, ufthe parish aforesaid, in the county
afore.said, clehk; John Grove, of the parisn
aforesaid, in the county aforesaid, gent, as
false traitors against the most illustrious, se-
rene, and most excellent nrince, our said late
sovtTOgn lord Charlts 3, by the grace of God,
of Eoeland, Scntland, France, and Ireland,
king, detender i>f the faith, kc. their supreme
andnaturai lord, not having the fear of God in
tbeif hearts, nor weighing the duty of their al-
legiance, but beiii^r moved and seduced by the
instigation of the d«iil : the cordial love, and
true and natural obedience, which faithful sub-
jects (*f our Siiid sovcreig^n lord the king to-
wards him, should, and of right ought to bear,
utterly withdrawiog, and contriving, and with
all their might intending the peace and tran-
quillity of this kingifom of Fngland to disturb,
and the tnie worship of God within this kiiig-
dom of Engtatid us^ d, and by law established,
to subvert ; and rebellion within this kingdom
of England to move, stir up^ and procurf", and
the €ordial love^ and trua aad due obcdienoe, '
8
which taithful subjects of our said Wnd ^
towards him, the naid sovereign lofdf
should, and of right ought to bev, v
withdraw, put out, and extiofuish:
said sovereign lord the king, to «'
destrnction to bring and put, the four t
tieth day of April,* iu the year of
of our bte sovereign lord C harks i
grace of God, of England, ftniltnrtNM-j ^gj^
and Ireland, king, defender ot* the -m jj. liii
the thirtieth, at the parish of SL Gm ^^^}^*$
fields, in tha county atbresaid, fsM^^Es^^kJ^I^
eionsly, subtilely, adrisedly, and m tr«^
did purpose, compass, imagine, i^ a^v^
siHiition and rebellion within this hM. Vit^
England to more, stir up and proc^^:^ ^c^
tniserablc slaughter among the suts^ .mA^
said lord the kmg to procure and »
our said late lord the king, (rom the ^^
title, power, and government of
of Engbmd, utterly to deprive, dJ
down, and disinherit; and him ou^^
sovereign lord the king to deaths \
truetion to bring and put, and the ^9.
of the said kingdom, and the sine
of God, rightly by the laws of tbes
estabUshcu, at their will ami pleasun
and aher, and the state of tint wb
of England, throujghout ali its
stituted aud ordiiined, wholly to 1
destroy, and war a^inst our sail
reign the king, withm this kingd
laud to levy : and those their most w ^
sons, and traitorous imaginations ao^^^ ^^,
aforesaid to fuliil and pedect, tht-y th
Thomas While alias Whitebread, \^
land, John Fenwick, Thom^i
John Grove, with other false tr
rors not known, the said four ai^d tv^tuuo/ ^
of April, in the year of the reign of mt -^
sovereign brd the king, the thii
force and arms, ^. at the parish
in the fields, in the county of M '
said, falsely, maliciously, sub'
devilishly, and traitorously, did il»^
selves, unite and meet together, an
there, falsly, maliciously, subiilt;l\
devilishly, and traitorously, did V
agree our said late sovereign lurd ;
death, am! final destruction t^
and the retinion within this kj>
land, riglith', and by the law?* o
kingiloui established, to the supei^ii
R^imish L'hurcli, to cbinge and alien ; ^ii*i ikt
sooner to fulfil and perfect their ^aid most wuJ^i
treasons, and traiterous ii> t.s ;
poses, they, the said Thoiy .A\'as\
bfcud, William Ireland, Joii a I Tt*!
Pickering and John Grove, an<l
tors of our said late so^t^reign lum ujv j^icig,
the juroi-s unknown, afierwarda, to wit, the
sanit: 24th day of April, in the said tlnhiHk
year of our said lale sovereign lord the Lw^
* Sec the Note to the Cai>e of Ircla
ering, aud Grorc, a. d* iOra, anU^
p. 91*
10B5]
STATE TRIAIS, l James II* l685.— /<?r Perjury.
[1086
^^gfoftauiii fiarish of Sr* Oiles in the ^viA%
UBtj Rfvresnid, Tiitsely, snbtilcty, ail-
rlt^lily, nni\ traiUiroiisly amon^
'I a^re^/ihut they
Hi nhg-, John Grove,
he »iud lute i?<j^eiti;^n lortl the king
fiiil kit! Jinii manJer : and that they the
(^niftift W hite alias U hitehrettd, Wilham
liihrj reutirick, »tnJntljer false traitors
^ junirss unknown, a ctrtmn ntvrtihtr ot*
t bet%ve<Ti thtnu+ then and iheit dL^^^rt^fd for
jfj. .1 iIm H^m\ of him the suid Thomas
>rc should say, eel e Urate and
. ti'ore shmdd pjy unto the said
ff a certain sum ot money, hetwecn
cti and there agreed. And the jmxirs
Ufion their oath albrcsaid, did tur-
eiii, that the said Thomas Pickering
Gror^, upon the agreement afore-
iiuid there falsely, stiUilelVf advisedly,
piy, devihshly, and traitorously cfiii
Jliem^ and did (imoiiise to the said
jaha« \Vhiiehread,i William Irc-
enwick, and other false tmitors of
1 lord the kingf, ti> the
*wn, then and lh<^re,
''- , mahriouslvi de-
I [»ronnse that they
Nn.,... . ,v „,_.,. ;^ tuid John Grove
kin and murder onr saiit lute iovereign
t kiEii.' : a[ji) tlu V, the said ThomnsHhite
f 1^ I ini Ireland, John Fen-
I'lii ^, John Grove, and other
I ot our »anl late sover«i^n lord the
■Itervrmrds to viit, the «aid four and
h day of Apnl, in the thirtieth year
I, 1*1 tlie uf'ire'iajd parish of Ht. Giles
plihi, ill the cotmly of Middlesex
aubtilcly, adfisiMtiy, mulii'iously^
and traitorously, dtfl sereraljy
of them give their faith each to
anil upon the sacrament then and
timjtOTOiwIy ibd feu ear and pronu'se,
not to divulge their said
t^His and traitorous com-
itious^ and purposes so be-
I had, him, our Kaid late sovereign
Fkingi traiturouitly to kill and munler,
rihe llomisih ri'li«(^ion in this kini;^dom ot'
\ to he ON^d, lo intrmhice, and the true
! m this kingdom €if England
t' laws nf the *arne kingdom
rand change-, and that the
\ i'iekering and John Grove,
ii'M»n ut their traitorou!$ agreement
it ati*«rMrardH, towit» the mime four and
tday of AiiriKmthethirtk'thyearaiore-
mnd divert other <la.s nnd tioiLSt alter^ at
K*^''"' ' . -^..i. -j^» 'ales in the fidd», in
Is, pi^itok, bwords,
.. ,ve and <:nud »vea-
ite sovtieii;u l^rd the
. laUi'ly, sublilely, ad-
itorously did (irc-
' ^5. nnd them had
\ tioilihi \, tin Thonms
I Jobu Grove, , u> wit,
I
the salfl four and twentieth day of April, in the
thirtieth year aforesaid, and* divers days and j
times; aHeru'ards, with forc^* and arm«« ^c. at]
the pantih aloresaid, in the county aforesaidtandl
in other places within the county of MiddleseJtl
aforesaid, talsely, subtilely, advisjctily, ma!i«
I'lou-sly, deviliiihiy, and traitorously did l^^'^J
'. i ' * ivtmrour said late sovereign lotlli
I «ler: and that the said liiomat
*i Mill aiiLis \\ iiitebrcadj Wiltiam treUnd, John
Fenwiekj and other falsic truitors to the jurori I
unknown, afterwards, lo w;t, the same four J
and twentieth day of April, in the tbiitiifth y eaf t
aforesaid, at the parish ah»resiiid, n the county 1
of Wtddlescx aloresaidi fah^ely, subtilcly, ad*]
visedly, maliciously, devilishly, and traitorously I
didprepEue, persuade, excite, abet, comfort an4 I
couniiel lour other persons, men lu ihejuiHjrnun^
known, and subjects of our Haid late sovereign
loi-d the king, htm our gaid Uie sovereign lori
the king traitorou*9lv to kill and murder, againsi 1
the duty of their allegiance, against the peaeo>l
of our said late sovcreigu lord the Ving* I
his crown and dignity, aud a;^auist the f6fni mi j
the statvite in thai case made and provided J (
and ther(>upun it was so far proceeded, thaH
ai^erwRrd^i to wit, at the court of giiol- delivery ii
of our sovereigtj lord the king of Newijate, at 1
J nsti ce - h a 1 1 i n Old - B ai 1 ey 1 1 n th e su hu r bs of the J
city of Lonilon, in the parish of 8t. Sepulchre,
in the ward of Farrmgdofi without, Loudott]
aforesaid, the seventeenth day <jf OLtember, iof J
the thirtieth year aforesaid", beioie ihc jus-^
tiees itf o^tr said loni the king, then and therflQ
being present, lield hy adjournment for th^
eouttty of Middlesex atJresaid, before whotnthc^
indictment aforesaid was then diniending, camtf J
the aforesaid WiUiam Ireland, rhoiiias Pick--]
ering, and Jutm Grove, under the custody of
sir Richard Lfovr, knt. sir John t"hapuian,\nt, \
sheriffs of the county of Middltst x aforesaid^
into whose custody, <br the cause afore^id be*
fore that were comnutteil, being there brought j
lo the bar in their propvr nei'soQ'i, and iiome«
dintcly being severally spoken unto concerning. J
the premisses above charged upon then*, hoir'J
they would luquit themselves ihertof; the T
aforesaid Uilliatu Inland, Thomas Pickering^J
and John Grove, did say that they were no! j
thereof guilty, and for the fiiimc, for good and*
bad, they severally put themselves upon the^
country ; and by a certain juiy of the countryj
on that Itehalf, in due manner impaniielled»||
s«oni and charged, then and their, in thesiamc
court before thejnstir.es of gaol-delivery afore*."
said were tryed ; and that upon tliat trial be«
tueen our said late lovert ign lord the king, and j
ihcalbrcsaid VVilltam Frcbmd, Thomas Picker* ,
iog, and John (irove, »i Loiui<»u aforesaid, to
wu, at Justice- Hall, in the Old- Bailey afore-
tiuid, in tile parish ami waril uforei^aid, ihc dc«
tindant, Titun t>ates, hy the name of Titut ^
tiates, late ot the parisli of St, Stpulcbre afore* [
said in the ward afon «<aid, clerk, Wi»s a witnesi 2
producf d on (he behalf of our late (K>yereigik
lord the km;; upon tin; trial afotvi«»\vV^i4Si^>Sft^
tore the atoiesaiA ^uiiUtAia q.1 ^iajakV-4»^x^^ ^^
I087J STATE TRIALS, 1 Jambs II. l685 — TVta/ 0/ Tthu Oates, [1088
the court aforesaid, then and there held upon
the holy ErangeliKts of God, to speak and tes-
tify the troth, the ^ole truth, and nothmgf hut
the trath of, and in the premisses between our
said late soTereig^ lord the king, and the afore-
said William Ireland, Thomas Pickering, and
John Grove, put in issue, wasduely sworn ; and
^athe the aforesaid Titus Oates, then and there
in the court of gaol-deliFery aforesaid, upon his
oath aforesaid, upon the indictment afore-
said, at the parish and ward aforesaid, by his
own proper act and consent, of his most wicked
mind, nlsely, voluntarily, and corruptly did
say, depose, swear, and to the jurors of the
jury aforesaid, then and there sworn, and im-
pannelled to try the issue aforesaid, between
our said late sovereign lord the king, and the
aforesaid William Ireland, Thomas Pickering,
and John Grove, did give in evidence, that
there was a traitorous consult of Jesuits that
were assembled at a certain tavern, called the
White Horse tavern in the Strand, (in the
White Horse tavern in the Strand, in the
county of Middlesex aforesaid, meaning) upon
the four and twentieth day of April, m the
year of our Lord 1678 , at which consult,
Whitebread, Fenwick, Ireland, (the aforesaid
Thomas White alias Whitebread, John Fen-
wick, and William Ireland, meaning) and he
the said Titus Oates, were present; and that
the Jesuits aforesaid did separate themselves
into aereral lesser compames, and that the
Jesnitsaforesaid came to a resolution to murder
the said our late lord the king, and that he
the said Titus Oates did carry the resolution
aforesaid from chamber to chamber, and did
cee that resolution signed by tbem (the afore-
said Jesuits meaning) * : whereas in truth and
in deed, the aforesaid Titus Oates was not pre-
sent at any consult of the Jesuits at the
White Horse tavern aforcsiaid in the Strand, in
the county of Middlesex aforesaid, upon the
S4th of April, in the year of our Lord 1678,
nor did carry any resolution to murder our said
late lord the king from chamber to chamber
bj^ any persons to be signed. ^And so he, the
aforesaid Titus Oates, on the i7th day of
December, iu the tliirtieth year aforesaid,
at the Justice- Hall aforesaid, iu the court
aforesaid, upon the trial aforesaid, upon
the indictment aiorcsaid, bettveen our said
late lord the kin<j:, and the aforesaid Wil-
liam Ireland, Thomas Pickering, and John
Grove, so as aforesaid had, by his own proper
act and consent, and of liis must uicked mind,
falsely, voluntarily ainl cormptly in manner
and tbrm aforesaid, did cumiiut voluntary
anil corrupt iMTJury, to the «;reat displeasure of
41iniirhty CJod, in inanifeM eontempl of the
I.ius (if this kint,^d(»m (»f Kiii^lund, to the <vil
and pernicious example of all others in like
ruse. olTenilinir, and ay^ainst the peac<; of our
said late sovereio;n lord the kin^, his crown
and dignity. Upon this indictment he has
been arraigned, and thereunto hath pleaded
• See vol. 7, pp. 91, 91.'.
not guilty, and for his trial hath put Inmself
upon the country, and his Majesty's Attorney-
General likewise; which country you ve.
Your charge is to en€|uire, whether the de-
fendant bo guilty of thia perjury and offence
whereof he is now indicted, or whether not
guilty ? if you find him guilty, you are to sar
so, it you find him not guilty, you are to sij
so, and no more, and hear your evideocv.
Cryer, make proclamation.
Oatet. Hold, Sir, f beg one favour of yoar
lordship, to give me leave to have that part (>r
the record, wherein I am said to have suuni
such and such things, read distinctly in Litin.
X. C. J. Let it be read in Latin.*
CLofCr, « Jnravit et jur* jora«' iiradid*
* ad tunc et ibidem jurat' et impanelat* id
< triend' exitum preMict* inter diet' D'imb
« nostrum Regem et prsfat* Will'm Irehod
^Thomam Pickering, etJohannem Gioreia
« Evidentus dedit quod fuit proditoria Oa-
< sultatio, Anglice, Consult' Jesuit' aui As-
< aemblat' fuer' apud quaudmm Imrnim
« vocat' the White Horse Tavern in le Stn»l,
< rie White Horse Tavern in le Strand, in Com*
* Mkl' pnedict' innuendo) supor vioesiniuni
< quartum diem April' Ann. Dom. millesiin'j
* sexcentesimo se|ituage8imo octavo, ad qoaiii
* quidam Consultationem, Wliitebread, Fen-
< wick, Ireland, (mdict' Thomam White ikat
< Whitebread, Jobannem Feowick, et Will'n
< Ireland mnuendo) et preetat' Titus Oates fbo'
' preesent' et quod Jesuits pnedict' sese le-
' paraver' iu separates minores CoovenM
« qaodque Jesuitia praedict' venerunt ad R^
' solutionem ad murdrand* dictum D niui
' Kegem et quod ipse idem 'Htus Oates |MrtiTit
^ Resolutionem pnedict' a Camera adCanienm
* et videbat Resolutionem illaui signal' y^
< ipsos (pnefaf Jesuitas iiuuiciidc»).' That ti
the Pei^ury tliat ^ou are said to have swum.
Oates, Pray i?o on, Sir, ' Vbi revcra^—
CI. of' Cr. ' Ubi revera et in predict' Tiiw
Oates non pnesens fuit ad aliquam C-oosul-
._.• -»■ •^» 11 H-l.-* 'fW T-....-.
Domini millesimo sexcentesimo septu;tgesiino
* octavo, nee portavit aliquam Reso!uiiiNicn
* ad diet' D'nuin Re^ro iiiurdrand' a t'ftimri
^ ad Cameram per aliqiias Personas <ii,nijnJ.'
Mr. Just. Withins. Now, you have rerJ it,
go on, Sir, to make your proclamation.
CI. ofCr, Cryer, make an O-yes.
Crifcr. O-yes ! If any one can iofomi o«
Sovereign Lord the King, the King's Scrjiairtf
the King's Attorney -General, or Uiis luqoe*
now taken, concerning the perjmy and oll'cnrti
whereof the defendant Titus Oates stands is-
dieted ; let them come forth, and they shiD
he heard, for now he stands upou his dis*
ehar«;;^o,
* See vol. 6, pp. 132. 1:13. 135. 143. lA
sir Henry Vane's Case. See, too, io this Cj
lection, Si<lney's Case, vol. i», p. 817t ■■■
Charnock's Case, a.d. 1696.
\
STATE TRIALS, l Jambs II. }6S5^f^ Ptrjury.
[lOflO
Gate
Mr* Phipp$, M^y k please your l4>rdsbip,
* jou geotlemeQ of th** jury
^uUt. My lord^ I ties ire your lordi»hip and
e court xtuuld be of rouns^l ti>r nie Itj one
tbini^', » bich i tnkv to be a fauJt and tirrar iu
y iadicifiieiit.
I* L\ J. Ltiok you, >fr. Gates, wliatever
m bate to suy of tlisti uatuvf, you mu?,t not
leak to il dow ; you »ill hki^e your lime as
ibat hcreatW, in case you be cou dieted.
Gates. My Lord, I hure but one small ex-
iptioo to oj>eu to you,
X. C* /, We are tiow upOD tbe tact only*
Oatru My Itir0» I be^ you vvoqUI 4fi%c me
ve ouly til tell you of' n mi^Ake in t!ie lu-
imeot^ whiib I hope, vvUeri I have opt?ue(l^
ill sati!»iy yoin- bircl^itijii, that il ouglit uot to
put ujion uie or tlie cuiirt lo try ihui cauise ;
\ to t)e Aure, if there jtboiiM Uf a couitctioo,
hope I may iiiovean aire^l oj tbe juil^meot.
X. C. /. No I »di you v^^u mny, Lot oot now.
/«♦ Gor»d my i<>r(i, hfur cue but a Tew
tbe ImiiciiULtis ciiarife«i mc lo bave
fruch ami suc^U e^ i Jeiu-e, that there was
a Cfiojiult of tilt .Itiiuibi at the While
tavern iu ibe Ktrauil, the 24ih of A\m\
That tbe jKaJuils M utierwanU ibvide
lemselves luto Keveral les«er couipuuie!^; iLjut
iy came there to a resolution to iiuu der the
ite king- ; aijd that I ignore tiiai i carried that
rrfiohuuth fruiu cbamljfr lo chauiber; and saw
e reiolution sii^ned h\ tbeni, so tbe word is,
liJijriiat* :' now tbe peijury ast^jgnec] iij, tJtat 1
not present at that t-oiisnU, nor did carry
le resolution from chamber to cbambf r to be
oe^ltatiii thtTe ihe word is * Signnnd' ;' now
-conceive, if ' Signal' be the word^ that is
^d ju setting fortii the oath that I made, the
i^umetit of the perjury ougftit to follow tliat
•ID, and the « ni J there ou^bi to be ' Sig^at'
beiD*^ *Siguaiid\ I to^e that to be an
•or.
L, C, X Look, that U not proper at tliis
le, as I told you at Arst; but \^itha} 1 do
lltink there is any great matter iu what
usay,
Ati, Gen, Either I do not understand Mr,
le^ what be means by the ohjeciioui or he
1 tind himself much mi^^ken in it.
X. C. J. Well, well, we have nothings to do
ith that now j m^ on wiili the cause,
Mr. Phipps, 3Iay it please your lord>hip,
and you gfeuilemen of ihe jury, this is an la-
ilictnient it^ainst Titus Oatts for perjury, w bich
' LCtment seib forth, that Thomas White alias
bitcbread, Willi am Irelnnd, John Feu wick,
lotnas Fitkerincj, and John Grove^ the 16lh
of 0ece.i.ber, in the 30th year of the late king,
at the Ohl Batley, were indicted of High-
Treason for conspiring the death of the Kniflr,
fkod that Ireland, Pickering and fin>Te, ntye
ed the I7ih o*' Deceraber in that year, and
'lou tliat iudictuientTiuia Gates was produced
a witness ou the behalf of the HLing', agnin.<t
le said Ireland^ Pickering «nd Gro\e : Bem^
oru to g-ivc evidence to the Jury that were
liauQelicd and iwom to try ibal otase ; he
met I
I Indii
K
I did swear and give in evidence that there wfli
a ti ' !. Consult^ of the Jesuits at the
W tat evtJ in the Str(m<J, (uu^aniDi^
the »f ijiic dorse tavern in the Htrand, in tbe
county of Midiltesejt) the 2 Ith of April t678, at
which consult, V\ hilehread, leu wick, and ire-
land^ and the (said Tt^us Oiiles were present^
and that they separutcil themsehcs iivio setei-al
lesser clubs, and came to a retiolutiou to munler
the kincr, and ibat he, the ^aid Titus Gates,
earned die said resolution from chamber ta
chandler, to be signed by tl»em, meaniufc the
Jeyuils ; whereas in truth and in fact, lie, the
said Titus Gates, was not pro^ent at any such
consult, i!te ^ rJi ot April 167B, nor curried
any such resolutjun from ch«mher to chamber
to bi^ j»i^ned ; and he, the said Titus Gates,
the J? til day of December, in the 30th year
ttfore^id, at the GM- Bailey aloresaid, upoa
tlie trial aforesaid, ou the mdicimeut above*
sani, between the king^, and tbe said IreUnd,
i'ickering, and Grove, so as aforesaid bud, by
his own proper act and c-onsent ot bis most
%vickeit mmd, falsely, voluiitaiily and corruptly
in manner and form aforesaid, Jid commit wil-
ful and con upt perjtiry ; and this is laid to be
10 the disboninir of God, in couleiupt ot the
iii\% , to the ei ii example of others in the like
case olfending^ ai^iuust tbe kiug^s pcacie, crown
and dignity. To this he has pleaded Not
Ciuiity, and that is the issue that yuu are to
try ; if we prove bioa guilty, we question not
but you will tind him so.
Ati. GtH, May it please your lordship,
and yim gentJemeu that are sw oni,- J am of
coun^^el in this cause fur the king, :md our case
stands thus : The deiendaot stands indicted for
corrupt and uiUui perjury, for what he swotre
at the trial of Ireland ; and that which be
sw^ore w as this, in order to i^onvict the pri-
soners tlien at Ihe bar, of the High-Treason
ibey were accused of j Gates did swear, that
upon the 24th of April, 1673. there was a COQ-
sidt of Jesuits held at the White Horse tavern
in the Strand, where Ireland and several other
Jesuits were prciient, and their business was to
consult bow they niigbt niurder and destroy
the king» and subvert the goTerument, and
there they came to a resolution, that Picker-
ing and Grove should kill the king : and he
was present at tbe debute, and be carried the
resnlution from ehamber lo chamber, where
they had se|»arated themselves in lesser uum*
bera, and ibere he saw the res-ilution signed :
and this is the matter that be swore, upon
which this indictment is tbunded. And, ^en*
ilemeo, we do chaige that this was a tiilse oatby
and in a point expressly to the matter then io
controversy before that court, for we shall prove
he was beyond sea at that tim#, and on that
tlay ; and m order to his couvictioQ we sh.ilL
make Out hy clear evideo^'e to ynu as foil and
plain as e^er was given, that from Christmas
Oefore, which ^vas in Decendjer Itir?, till
Midaiunimer after, %vhich was the latter vnt\ of
I
1
4
* See vol. 7, a* 9. lUFti, of this CoUectiua*
4 A
1091] STATE TRIALS, I James 1L l685.— Trtu/ #/ TUum OaleM, QMlJ
I
I
I
June 1678, Ontes^ Uini s^vears Uiis eongiuit in
A|jn(, wa^ It Hi. Oniers, ami in all that litne
Wj>H not alisi'ttt tVora tW collci^B ll>pr<* ab«»ve
t4 boui^, ftin! ihat Imt once only, wbich was
in Junuary wlieii he ployeil tt'iiant, unfl wc^nt to
Walton, ivhich is about uro miles from St,
Oiiiem, but otherwise^ lie v%as aW a^tueig in be
collce:^. Ami my loni, that we may give such
A «iitisfa*Mory eviilenc*? as may mnkc it undeni-
ablv plain li» ihr Jury, I itesiire your hn'ilship,
anJ you ^enticuten oV thi* Jury, would jilt^ase
to observe some partK'ubr periods of limt*,
that 1 shall open lor (be lM.>Uer clearingf our
eviilenciL' mt'ibodically. And the first |it^rjoil
t>f uum %% from Mr. H*ls«lLy^s leaiin^ St.
Omf r* ; now he left St. Omcrs the Mth of
Apfd Old Shle, uhich is the Vlih of April
Nfw 8ti(e,auii tlic^i wbvn-hecMmeaway, be l*^ft
0*iteft lb*^re at Si. Omerss. Mt: HiUley, when
he /"ame into £rt^[(irul in Kf at, in his journey
to L«»n<ltKu tiM^Hs one Mr ihirnaby ; this was,
l^uy, in IVlr. Hiblcy's return into Enyfland
from St. Omei-s^ nhich be left ten da\s l^elbre
the lime ai*si;jned by Oales for ifiis connuU, at
the White Horse tavern in the Str<ind, And
the ncJct p<*riod is, Mr. Buraaby was going to
St, Omeri;, and there he arrives in time^ the
Slsl of April Old btile, and there he finds IMr.
Dates, w[\n swore he Was then in London: and
by the evidence you will bear timt Mr. Oales,
according" to liis usual e^tistouii and according* to
thai virtue he is endowed witli, very liohlly in-
iinuates Inmseli into this ijentlernan's eoiu-
payy, as lie uses lo do with all new-comers ;
ami you will hear from Mr. Humaby himself,
and many others, that from the time of his
eumiuj; to St. Omers, which was the a 1st of
April, he conversed with Mr, Oatcs several
days, every day till alW the *24th of April Old
iStde at 8t. Oraers. Theu, my lord^ another
period of lime that I would desire you to ob-
•erve, is, fpom Mr. PooFa coming' from Ht,
Omers, which was in time the t2jth of April
Old Stilcj the very day after the day that this
CH>nsult was sworn to be on ; ana when he
«amc frtim 8t, Omers, yoi* "ill hear fnnu
many witnesses that he fell Oates there) ai>d
tlicre he stayed. For my loril, wc shall, be-
aidc=9 tU:^<-^' i^nrticular times of these gxuDtle-
men's r who ietll him there, nrove
Ihc ver ^ ^ n he left fcit, Oiocrs» and that
was the end of Midsuiiuner-day followintf,
which was the a^'iril of June ; then was tfie
time when Ontes first came i'l-om Ht. Oniers to
Eng^land, and we shall prmc he took lii« leave
of tliAUi I hen. My lord, we Imve uaiuy
other circumstances tbul will un:uiswcrably
Ktreuj^then ibis evidence^ «od shew that our
witnesses testify nolliing but the tntlh ; one
particulail V ij thi^ : Tlris gcniicmaDhciin^ a r»o-
vice of the Lou.se, was Iteadcr in the Sodality, us
I h ey ca 1 1 i t ^ we sh al I pro v c that ; for e v ery S un *
day and Holiday throughout aJl \pril anil May,
} h^ did othciale in that plare, arul did ;*'ad in
the soincty, accorJiiijjf as the castimi there is -
and we tyhal) prove another particular thin^,
difll u^aa this %i\h oiAgtH Ut was m thu cqI-
leg«, by a particular cirrninstaitce, tnd
tevcral witnesses ; so t'^ ^r '^fitleniMi.
detain you with any 1< ^^^ftlM
if we prove this that 1 .i^ c ^en^^mmwe
with a cloud of witnesses^ it will make aa
of the cpiciition* We shaQ firast c-all our »il«
n esses to prove that he swore at that TnaLi
such a consult was, and he w«s ni it ; and'
if we prove, that be was at ai;
yond the sea, at such distance
sible fur him to be here ; I do not li
court and the jury will conclu*te> 1^
fully and corruptly f liims*:-!! , tj(
effects of which we ar rsses of; i» -:
to take away the li^^L^ ui ut% l^lfn - ^
wrouj^ully ; and it will appear tt»
be has been oue of the greatt^t iiii|.wo*w,= ,^^
ever did appear upon the sta^, eitiier ia the
kitig-dom, or in any oihcr nation «
SlU* Qtn. (Mr. Finch) We w4U liow g9«
with our cvtdeuce, and prove all tfcie piiii4
the indictment, and first prodtioe the fmoriit
thcTrml of Ireland, and then by ^rilnrsM^^m
rorr, Utat were present jj( iI, wf Ml
prove what be swore^ and . e that fldk
of his to be false. Swear Mr. 8^\ ifL [Winch
was done,] Where is the Uecord of IreiMid^
Trial 'i^H<i{ft. Here it i'^ ' V
Rixurderl \h that a trih ?
Stcifl. Yes, i eicamiued uji^ mjio the R«*
cord, it is a true Oopy.
L, C. X Head it.
Alt. Gen. If Dr. Oaie« does desire the vbcll
may be read, let it be sp ; oiherwisea «rari«f
it may serve, it Ikmu^ only an iiiduc*!!!!^*!!.
Gates* Yes, 1 desire it may be all read«
X. C. /. It must be read, if he will have it
SoL Gen. WelK 1 submit it; 1 did oil)
offer it to aave the time of the court.
Gates, 1 wonUl save the time of the ecMl
loOf all that I can ; but 1 thbk it may be m-
terial for lue to have the whole r^ad.
L, C J. In God's name let it be rciad ; wt
will not hinder you io any thip^ that tn^\ t*
for your defence.
CI. qfCr^ * Metnoratiduoi quoci*-^-^
Ati, Gen. Now this Ion- ■ Vf -.\ intjitifiil
read, 1 uould faiu know t Wloia|
great purpose, but only to i.j , ..mef
L. C*J, Nay, I think it 1ms not been vfff
edifying' to a fH'^ut inaoy ; do you Ihiuk, Hr*
Oates, that the Jury, who ore judges of ikif
fact, do undctiftaud it 't
On Us, J caouot tell | lofty be they tmf%
lord.
^mi, Wdhint. Do you uDderstand it
«elf, Mr. Oates ?
Gates, That is not anyf]Uestioii hcr^; botA i
oblige the court and the Jury, 1 ilrstn; tHw^
be read in Enghnh too,
L. C. X No, the court umiersiiiiid^ it *dl
enough, and they can tell •• - -" - ^ ^ t--
ir U only lh<? eupy of a
li'claiid was Iricd f"' ^»' ^. •..„.; ^,*r
Uailey,thei7thof
Sol. Gift* Now,
vntiiei»scs» to swoar what llMet did at tbtt &^
Sot.Otn. Now, 1 , -mII aStm
53] STATE TRIALS, l Jambs IL l685.-/<rr Perjury.
[Which was
pray twear Mr. Faster,
lie,]
\AU, Gtn. Pray, Mr, Foster, will you ac-
liikt tlie court and the jury, whttner Dr.
; was prod u ceil as a witness at Irtibntl's
I and what he thd there depose about a
Stilt ia April, l{j76. .
\J^mter. Aiy Vm\^ I waasa unhappy as to be
! of that Jury, by whoni ^h\ irelaud, Mr.
ikering^, and Mr. Grove were tried.
[ Jurytnen. My lord, we desire that M r. Fos-
* would JiA up hb roice, for we cauuot hear
I Foiter, TruJy, ray lord, I have been very
of late, and am not now very well, and
"ore caatiot speak louder than 1 do.
^X. C. X Go nearer the Jury, and speak as
I you can.
iJ^oiter. My lord, I say, I did see Mr. Oat*«
dticAi as au e?idence at the seisions in the
l-Bailey, where 1 wj^s !;o unliapfiv astn he a
Ifman, when Mr, Pirkering^, kitr. Ireland,
, (jrove» and Mr, Wbilcbread were tried.
Alt, Ocn. When wtisthat i"
FoUcr. Jt was in December 1678.
^.Att. Gen, And what did Date* ihen swear ?
\ FoMler, I did see Mr. Dates sworn as an evi-
\ jlhere, in ()ebair of the kinor, aeainst the
oners ; and he did then swear^ that there
! a meetintjf of several Jesuits at the While-
arse ta?ern^ in the Strand ^ u|>on the 24th of
^pril 1678, and that Mr. VVhitebread, Mr. Ire-
ad, and Mr« Fenwick were present at the
tio^, aud ther< they did consult the death
the King, and the altering of the relig^ion ;
^d some went awavi and others came : at
they reduced tht^tuselves into several
' companies or clubs, and they came to
utiOQ, that Pickering' and Grore should
to assassinate the king, ibr which the
have 1,.!^IX»/., and the other 30,000
B, andtbut this resolution was drawn up
r mie Mico (if I arn not mistaken in his name)
ftve itb my Notes 1 thtn took of the evi-
and he swotx' further, that he himself
Dt with this resolution to several of their
bsmhers ; he went to Whilebreail*s chainhcr^
Hd saw Whitebrrad ^\gn it ; he went to Fen-
ck*s chamber, and saw Fen wick sign tt ; and
at to Ireland^s chamber and saw Ireland
lit: and this was upon the 'Jit h of April
^7S. My lord, 1 am positive in this, tor ]
ki the ^ood hap to take the Nutes at the trial
> roy own help, being a Jui'y-man, and 1
rer looked upon these notes afterwards, till
tlie prmted Trial came uut^ and then 1 compared
ny notes with the prmt and found them to
^'' ee, and 1 have kept them ever since by me,
i this is all under my own hand as I ' have
tiHed.
Oatct. My lord, may I ask this gentleman a
' ^estioD ?
J^ C. X Ay, if the kmg's counsel have done
with htm.
Ait, Gen. Yes, my lord, we ha¥e done with
JuoK
Joiner. Pray, my lord, eItc me leive to sit
[109*
Outti. My lord, I desire yon to ask that
gentleman, Vheiher in the oath that 1 ti>ok, I
called it a consult, or 1 called it a traiterous
consult P
Fo%itr, Trtily I think you called H both,
if I am not mistaken j but if your lordtihip
please, 1 will look upon my notes.
L. C. /, You may look upou your notes to
refresh your memory, if you will.
Just. Wit hint. Truly 1 tbmk if it were aeon-
suit tu murder the king, it must be a traitorous
one without doubi,
Oatci. 8ir^ timt is not to the purpose ; my
questitrn is what 1 swore it was.
L, C X lie tells you, he believes you di4
swear both ways,
Foster, At that consult be said that such a
resolution was taken, and 1 think he called it
a traiterous Qonsutt.
Outes. If you |dease, I will tell your lordship
the reason why 1 asked that questum.
L. C\ J, No, you nifty sare yourself the trou-
ble of that, you l»est know the reason of your
own questions ; he has giveu you a satisfactory
answer.
Gala. Then if your lordship please ask him
tins question, ^Vhether I swore that ail tties*
three Jesuits were present at one time, or how
many of them ?
L. C. J. You bear the question, what say
you to it ?
Foster, 8ir, you swore tliat Ireland^ Fen*
wick, and VVhilebread were at that corjsidt, but
whether they were all three of them ihrre a^
one time, 1 cannot tell, or Avhich of them were
together j but this you did swear, that they
wei-e there, and came to such a re^uhnion,
and you carried it to all their chambers, and
did see them sign it.
Just Withins. He gives yoii a plain account
of what you did swear, I think* Mr. Uales.
OaUi. Very well, my lonl, 1 would ask him
a third question, if yi'ii [dtiase.
L^ L\ /. Ay, in' Gml's name ask him as
many tjuestionsas you will.
Outes, Whether did 1 Mweiir that it was re*
solved to kill the kuijj at ihe White- hors«
tavern, or whether itniL rei>ulution was made
after,they separated diemselvcs mlo lesser cinbsf
L, C. J. Mr, Foster J this is his iiue»tioU|
Whether you did apprehend, by whiii he swore*
that he ajiirmeil, the resulunmi to kill the kin^
was made iit the White- horse tavern, or alier«
wards when they were divided ?
Foster. They came to a res^tlutioo, you said,
at the White- horse Tavern, and the resolntioa
was there drawn up by uue Mico, I ihmk, and
it was carried by you, for every one to sign it
from ehauiber to chamber ; lor 1 remember
you were asked the question, wUether you savr
them sign it, and you answered that you did
carry it, and miw them liigu it.
Just. Withim. He sp^s very plain, Mr.
Gates.
X, C. J. He answsrs your questions very
fully.
Uaia, Ay, my lord, so hm doa^ l4
I
I
I
i
then, ttr. PoMer. Piy—bdiflW J
Do you think, Mr. Gates, he wookl li
him gttih^, if he bed not believed tin
•geiDSthimf
Quia. We know how joiiM bar
tote.
X. C. J. Ay, Tery ttrtngeW im
Omtes, and I hope no m we ftbell
ROB] STATB TKUtk, iSauu It. isn^im ifVm (kU$,
L. C. /• Hmfto yo« any indre ^ncetitat to
•dcbimr
iMie$, I wo«M Mk him wiotber ^^leelkNi.
Whether I dkl twear, that I did carry this te-
flolmion ftofll ebambertochaiblMril besifBed,
or that I carrtrd it frakn chambcVtQ chamber
IUmI saw them ftetiitr
Aififv Yo« end swear that yen carried th^
lesolatieii from cbamberio ehamber, and saw
tkemsigoit
'Osfss- Botdid yoo remember it soparticii-
larly, as to say, which you swore» whether I
did eairyil to be signed^ i^ carried it, and saw
tbemsignH?
JbHir. Ytfa said yoo carried it to be signed,
aad yof saw itskned.
X.C.tf. He tells yon ftr satisAotion in that
ebt, that he does nmertiber yon didswear.it
hrways.
(htei, Be does say so faideed, hot whether it
was so or no is a doubt
L.C.J. That will bt * question by and by,
it may be ; -if he be in the wrongi 1* sup[>ose
yoo can rectify him.
Oate$. We are now, my lord, upon tny oath,
and therelbre it concerns me to enquire whe-
ther. I swore as is laid hi the indictment.
JL C. /. You say riqfht, It does so.
Oatet. And I the rather asklfaeae questions,
n^tord^bleGduseit'to lix years ago rincethat
trial.
L. C. /. I hope y<W har^ not forgot what
yon swore, have you f '
- Ooiti. My lotd, I think it is fair for me to
ask the wimesses what they remember after so
lottiratiroe.
L, C. J. It is refy fair, nobody says any
thing to the contrary.
OaUs. Then, my lord, 1 hope I may ask this
gentleman how he cottaes to remember all this
after so long a time P
X.€. J. He has told you already; but tell it
him afifaio, Mr. Foster.
Fatter, Truly it is so long ago, that had I
not taken all these notes at Um^ trial, I had not
been able to have given so good an account.
L. C. J. Ii is a very good reason.
Oate». It is so, my lord, 1 have subpcraaed
Mhersof the Jnry, and they will,! suppose,
give you as gucHl an account.
L. C. J. Have yon done with him then ?
Oaiet, I have one question more to ask Mr.
Foster, and that is. Whether 1 swore they met
all in one room, at the White Horse tavern, or
in more than one?
Foster, You swore they were in iieveral
rooms.
Oatet. Then I would ask him this qtiestion,
my lord, Whether he were then satisfied that
Ireland was guilty of the highHreason be was
then indicted of?
L. C. J, The meaning of the question is, I
itippose. Whether you dkl believe Mr. CHtes
at that time f
Fbiier. Yes, my lord, I bad no reaeon to
tite contrary.
JbAA JMiinMU tdk >|ta % fpttoQ
them go again.
JFWer . My lord, I have lired ao V
city of London without any Memii
hdpe it will not be thought I would
fuptly a verdict against iny oonscien«
Oate$. My iord, I speak of toier i
Ireland's l^al.
jL C. J. He is an honest man, 1 k
Oatei, Giood my Hird, he pW«ied h
L. C. J. Nay, yoii shall hear me,
I shall hear you, I'll assure >«u
Oates, to . ptom English : nsk as ui
tions of the witnesses as y.u will, tht
per to be asked ; but IM ha%e uo dei
reflections: I know hiui^ and he is
known in the city of Loudon, lie b
very considerahle quality, and very
pote.*
Oatn. I beseech your lordship i
me, if I mistake in my questions^, I
you, I design no reflecuona tin Mr. i
L. C. J, Ask what questrans you
do not reflect.
Ovtet, I desire to ask Mr. Poster
tion more, and that is, that he would
to tell the reason wh>' at the beg.uo
evidence he «aid, it vras his unhapp
a juryman at that time f
Faster. Really, Sir, 1 think it is i
piness for any man to be of a jury,
life of a man is in question, i assui
myself, 1 never accounted it so, and
have a?oi(led it, I should have been
to have been excused.
Oates, I have done with Mr^ Posti
Ait, Gen. My lord, thus wa omve
Oates swore at the trial, which Mr. C
self will not deny ; for^he fact, Mr.
piinted in his Narrative, as we I
proved it.-
Oates. I intend to produce some oti
jury -men by and by.
Sol, Gen, Now we shall call our w
prove, that what he then swore waa 1
Att. Gen. We call no more to
what he did swear ; but go on to disf
he did then swear.
Oates. My lord, f wooM put this «
the court, Whether this he a proof
for this point ?
L. C J, I leave that to the jur
point of fact that they are to try.
Octet. 1 beseech your loidahi|i,
court would be pleased to give me as
L, C. J. If you ask unpertinem
the court is not Obliged to anawar tl
on, Mr. Attorney.
Att Gen, Call Martin Hitoto^
ubflry YhoiQltolii ^^^*
STATE TRIALS, I Jamks II. l6iS.~for Perjvrf.
[1
fit j|i wu done,"] Come, Mr, Hilsley, pray
i iini my lord *ntl the jury» ^vhat time you
^ Ki-om 8t, OmerSf in tbe >ear 1378.
liiiiet/. My lord, | came from St. Omcrt'
34iti of April, New :^u)e, where i J eft tbe
otter, Mr. <>ate9,
. C. J. Fram whence did you come, say
iMeu. From St. Omers, the 94th of April^
a J. Wliatyeur?
tiltieif. In the year l(i78, Ihat is, Ihe Uth
kpnl here -, d ntf Uu^ 93>l oi April New 8iih\
iw the jmsoner Jit St. OinrTS, aiitl wt-nl to
l»l M tlh him, ai)d ojj the 24th \ earue tbujn
OmerR, iind Weill to C'iibis, ami froii thence
£a;{'hi(irl ; but he was nevc'r jii my cuun-
ly ikll the ^vliile 1 tvus ci>tiiitig^ for £iigtiiiiLl,
llg'h he swj>re he rame over with me,
C /. The ai*J ot April you »»y you saw
if
MiUtetf, Yea, I wiis with him, that was the
rbelure I cameftotn Sr. Omers.
C J. Vuu lill hini there the day before
Mm f lie away, ynn say p
XtUity. 1 iIkI uol see him that morning
1 I mttfUke away, but here me ather^ tliat did.
ttt, (jtn. Was lie \i schnlar there ?
iiktttf. Ye*!, my lorU, he was.
%it. Cvn, \M >f»u know him very wtllP
_ iiUhy. Yes, my Jord, I did.
Ati, Ocii. l>tU he GOiue over into Eog-land
ritli yt»ii f
iiUley. My 1m d, I came from St, Omeri to
and never s«tw htm ; from Caluis to
fcr; i never saw him fn *ni Dover lo Ijoo-
I never satv him all the way ; and J am
Jent h(? wai5 not it* the sume »hip I came
' in, lor I ^hf^tild h:ive Keen huii if lie had.
r Gen. Was he fur some tittle heiore that
lly at Ht. OinPri*?
iry. We weut perjj^tually to school t»-
. C J. What time did you tftke shipping
• yoti Wi^nt from St. Omerw?
^ihley. The very next day; th^ day I
at from Hi, i>fiterii wat on the Sunday «iu»rn-
Ou ^lomlny 1 imui shippin;;^ from Calais
E>v«r, and I utriverl in i£ugtaii<f at ten of
Jclock iUt name ni;ifht.
at a. When docs he &ay Ue arrived in En^-
C. J. He «ay«, be went from St.
on the Hitnilay, he oanie that ni^'ht to
ais, and the next day went o*i b«iard frnm
h\9y and came that night lo Dovtn*, that vfoa
nduy night,
Sfiwiy. Yen, t oame thJit ni^ht to Dover^
i I lay there that Motjday nii-hi, the aeirt
I the 26ih of AprrI New ^iiile,
^Atiz Gen. Where came you tlien from
Utence?
j^ HtUletf. I cam« a« fkt is BttcVron-ttreet,
} there 1 lay four or live days, ami then I
lie 10 NrttiTn^ltuut^, and by "long tea fixjtu
ce to Lmidnn,
#^ Gtn. Wiiere ilid VM neet Mr. Bur-
BtUiey, I met bim hard by therei at & i
tion^s of mine,
Att. Gen, Do yoa remeinber what day yc^ j
met bitti? 1
UiUU^. I think it was a day or two before I J
eame away from thence to London,
Just. Wit/iins. Uud you any discourse witl
Mr. Ootes, about your coming into EditIaihI ?
Hih(*y, Nothiu^ at all, air Francis, that U
remember* , *
L C J, W hat time did you oome to London f]
Hihiey* I came within a few day^ to Lon* I
don. 1 staid fou}* or hve days there by tli#i|
way ; and 1 j^w Mr. Uurnaby within fou
days, I think, after 1 came iiitoEugJanct Itl
w.is aliout M<^n«)ay sevenni^ht alter I caio^J
from St* Omer*, ihiii I <«me iw l^odon.
An. Gen. That wns May Ni^w 8tile.
Hi/tiet/, That iM their Stile. It was so,
Soi, Gen^ J a tiur tStde it wa& tbe 2ifit oC
April.
Mr. Hansels. Pray did you tnvean account tdl
any body, utter ) uu eauke in London, that yoiiJ
left Oaleii at Su Omers when you came away f\
MiliUjf, What say you, Mr. tian»eya? I^i
did not well uuder&titud yuur ipiestion. jj
L. C. J. Then juiud me. Sir: It uas askf^f]
of you, whether you hud any discourse wit fa
miy boxly alVer you came hither, that you I
lelt iMr. Oute-i behind you at St. Outers^
liii&Uy, I ilid tell 2^me persons I lefl »*||
En»hsh pofsoii there, at the same time 1 i
away. ^1
L, C. /» Jiid you not name him, who it wtsf |
HihUy, Ve^T I uitiueil Itiiu by the name b#I
went by ther*?, ntifl tliat waa Sampson Lucy,
Ati, Gen, Tu whtiui did you tell itf
HtUiey. To one Mr, Osbouru. <J
Sui. Gtn. LHd he ^o by that name of S^tnfN 1
son Lucy in the coUc^fe f
Ihhtcy. Yes, he did aoraetimes, he had^
three or i bur names, he was oUled sometimet
Titus Anihro>»itH.
Oatei. Xow^ my lord, I tieaire I may isle
that ^enthinaii a que&uiHi or rwo.
L. C J. Ay, if tbey hiive done with bim.
Att, Gen, We bsive, my lord.
L. C. J* Then a&k him what you wtIL
Oiiie*. I dtfiiire, my lord, that yon will h$ i
pleased to ask that ^entlemun what religion 1
l»e i$ of; tor it ia a fair queatiou, aud anj
equitable one, and thai winch very nearly con^
ceniame ; and 1 desire to know where beUves*^
L. C J, Wtiat rek^iou Are you of, 8ir ?
Hii^Ui/, I Hill a Houiau C^tnolic,
L. C. J. Wbwrcdo you live ?
}hi^Uy, I live m Loudun, 1 am of the luner*
Temple.
L. C. J. He says that he is a Roman Ca« J
thoiic, aud lives ui Loadou.
Oatvt, Pray be pi eased, my lord, to a&k bin| I
when be went tu Nt. Omers first, and hotr J
lou^ be stay eti ihcre ?
iJiUe^* Aly lord, 1 was there about siiki
5 ears, I pre«utt)e it was about the ye;ir 167 2^ ]
wheQ i went there tif^i.
Gates, Pntv a»k him what be did tiier%|
what waA Uta \kv]L&u;i^:«i I
109^ STATE TRIALS 1 Sauem II. l6i5^THal ofTUui Oeiti.
Alt, Gen. That is not a pertineut qoeitiui
at all, withsubraissoD, my lord.
Oatei. I beaeach yoa, Mr. Attoroey, gire
■le leave to ask my ovm questions.
L, C. J. Ay, but you must ask fair and per-
tinent questions.
Oatei, My lord, I would know what was his
employment there at St. Omers P
HMey. I know not myself of any particular
employment I had, any more than auy of the
rest that were there.
Is C. J. But, Mr. Oates, yon must not ask
any such questions ; what know I, but by ask-
ing* him the question, you may make him ob»
noxious to some penalty, but you must not ask
any questions to ensnare him;
Oate», My lord, it tends very much to my
defence to have that question truly answered.
' X. C. J. But if it tends to your defence
never so much, you must not subject him to a
penalty byyour questions.
Oat€9. llie nature of my defence requires
an answer to that <]uestien.
L. C, J. But shall you muke a man liable
to punishment, by ensnarinjQ^ questions? If a
man should ask you what religion you are
of,—
Oates. My lord, I will tell you by and by
my reason, and 1 hope a good one, why J
ask it.
L. C.J. 1 do not believe you can have any
reason ; but to be sure we must not suffer any
iuch entangling questions to be asked.
Oatei. Pray asK him, my lord, wUen I came
to St. Oniei-s.
i. C. J. When did Oates come to St. Omers?
IliUlei/. As wtll as I rememlier, became to
St. Ouici's either the latter end of November,
or the bt^inning of December, in the year
1677, 1 think it was tliat >far.
Gates. 1 desire you would ask him, Whe-
ther they were not priests and Jesuits that go-
verned that house?
L. C. J. What a question is that ! I tell you
it is not tit to be asked.
Oates. I demand an answer to it, upon the
oath he has taken.
L. C. J. And 1 tell you, upon the oath you
have taken, you are not bound to answer any
such question.
Oates. Goody my lord, let my questions be
answered.
X. C. J. No, Sir, they shall not : how now,
do not think to put irregularities upon us ; if
you will behave yourselt as you ought to do,
and keep to that which is proper, well and
good.
Oates. If your lordship pleases, 1 think this
very proper tor me.
X. C. J. What, to ask such improper ques-
tions as these are ?
. Oates. Truly, my lord, I think they are fit
questions to be asked.
X. C. J. But we are all of another opinion.
Gates. My lord, 1 desire to know, whether
they are not set on by their superiors to do
V
X. C. J. That is not a fair qnatkm i
Oates. Give me leave to make my
my lord, I beseech you.
X. C. J. Ay, in God's name ; but
you then make it in a regular and b
way ; for I know of no privilege y
more than other people, to use wits
you do.
Oates. My lord, I look upon m
hardly used m the case.
X. C. J. I care not what you lo
yourself to be ; if you will ask quest
none but fair questions, and while y
within bouuds, you shall be heard as
any of the king's subjects ; hut if ;
break out into questions that are imp
extravagant, or ensnaring, we must
you, and keep you within proper liuiiti
Oates. Then, my lord, 1 ask, WL
was not a witness at tiie Trial of the Fiv<
and at Langhom's Trial ?
X. C. J. Ayy that is a proper questi*
say you to it, Sir ?
Hilslej/. I was so. Sir.
Oates.. Pray, my lord, ask him wb
he received at Uiose trials ?
X. C. J. What a question is that, to
man !
Oates. My lord, I think it is a fair <
X. C. J. m, indeed, it is not a
at all.
Oates. My h)rd, I desire to know '
duces him to come hero as a witnc
since it appears that now he comes to
evidence that he gave six years ago,
not believed ?
HiUley. My lord, I am subpoenaed.
X. C. J. He has given you an ai
the question, though 1 Unnk it was
question, and not at all to the purpose.
Oates. It may be, he may have son
ticular reason to induce him to it now.
X. C, J. Well, he tells you he cam€
he was subpoenaed, and that is suffici
is not compellable to be a witness, ui
be subpoenaed ; but if a man will come
a sub])oena, and give evidence iu a cai
is no objection to his testimony.
Oatts. My lord, I desire to know
whether he is to have any reward for s
in this cause P
X. C. J. What say you, Sir, arc
have any reward for your evidence ?
Hilsley. None at all as I know of, i
I assure you.
Just. Withins. He is not paid for
dence, Mr. Oates.
Oates. If he be or be not, I cannot
do I know who ever was paid for it.
X. C. J. Have you any more quesi
ask him ?
Oates. Pray, my lord, I desire to
what was the occasion of his comin|
from St. Omers ?
Hilsley. 1 had finished my studies.
Oates. Pray, my lord, be pleased to a
if hft Mvcr hotfd of aoy couoll of tki
1101]
STATE TRIALS, 1 James II. l685.— >r Perfmrf.
[llOf
Iwre in England, in the month of April 1678,
tnd from whom he did hear oi'it ?
Hiisiey, I did hear of it amon^ the rest of
the students of the coUegre.
L. C, J. What did you hear of?
UilsUy, 1 did hear of a consult of the
fathers in April 1678.
Alt, Gen, Yes, there was, hut not sneh an
one as» Mr. Oates speaks of, nor was he at it.
Just. Holloicay, For what was that consult,
I pray you ?
Uiltfetf, It was nothing^ but a triennial con-
gnsation about the affairs of the society.
JL. C. /. %Vhat were they to do there ?
HiisUy, My lord, I was infer me<l amongr
them there, that it was only what they irsed to
hare once in three years for onlinary aH'uirs.
Off/ff. 3Iy lord, lie pretends to tell when
1 came tiiitrter ; 1 desire to know of him from
vhat time it was he saw me there, and how
UiUley, Generally every day, as near as I
ran remember, I think, Mr. Outes ; you and 1,
Mr. Oates, went to M:hool in the same place.
Ovtc*. Fray, how many days was I aliscnt
from tlieuce in that time you were there f
UiiiUy. You were there generally as often
ti I ; 1 do not know whether ever you missed
adayorno.
data. Pray, my lord, will vou ask the gen-
fam one question more, VVhcther he can
pvDciilarly tell that he did see me every day
M ft. Omers ? For it it not enough for him to
IMW that he saw me there ; but he oupht to
|m an account how he conies to know it by
•ane particular ciroumstaDccs.
£. C. J. He has given you several circum
\pril
rtawes of his knowledt^ ; fur he says he was
fkert all tlic while from your comincr, till the
fSd of April New Stile, that he came for Ko^-
ImmI ; he says he was u scholar in the same
fimn and class with vou, and because he does
MC remember himself to have been absent, he
Iks not remember you lo be absent neither.
Att. Gen. And he swears particularly to
4e Terr time lie came over, which was A|
*e 14th Old Srile.
Quia, Well, i have no more questions to
Mk this ^ntleman.
L C. J. Then call another.
SW, Gfn, Cryer, call Mr. John Dorrcl.
[Who was sworn.]
L C. J, Look ye, Mr. Attorney, you did
<^ things at the* first for method's Huke by
IKtiods of time ; the first was Hilsl(;y*scomin<r
*>^,the next was the meetint^ \^ itirUiimaby ;
^ pray ol>serve tliat method, and call ifiat
Banaby next.
AU, Gen. My lord, we shall call hin\ by and
^ ; hut we have not done with this bnsiiiess
*^t Hilslcy, we have some witnesses tliat
^girean evidence to strenfi^hen and back his
^■HMiiy. Come, Mr. Dorrel, whut ha\e
f9u to say to this matter ?
•Uorrel. My lonl in April 1078, I came
■ Pgwwls to Enc^land, where presently
■ I Q$mB% I WM with one Mr. Osbouni and
i
my mother ; and there was a disconrse between
my mother and him about religion.
L. C. J. Where ^as that ?
Don el. It was here in En{«^Iand.
Att. Gen, Now tell the time when that
was.
Dorrcl. As near as I can guess, it was the
1.5th or 16th of April Old Stile, in the year
1678.
Att, Gen, AVell, Sir, go on with your story.
Dorrel. My mother was laughing at Ids re-
ligion, and telling him some ridicuhtus stories,
and he replied. There are a great many that
are so ignorant, that arc bred up in the religion
of the Church of £nglan<l, Uiat they are forced
to l>e sent to the colleges abroad to be taught,
even some of the clergy of that church; and
particularized in one Sampson Lucy, alia*
Oatc<:, that was a scholar at that time at St.
Omers, as he was assured by a gentleman that
was newly come from thence. My mother is
now sick, or else she would have been here^
and would have testified the same I now do.
Sol, Gen. Tliis gentleman is a Protestant,
Mr. Oates.
Oatts. "What is your name, Sir, I pray ?
Dorrel. My name is Jubn Dorrel, Sir.
Oates, Were you never at St. Omers a stu-
dent tliere ?
Dorrel. I was there, but before your tune.
Doctor ; I had not the happiness to be there
while you were there.
Oates. 1 pray, Sir, what religion are yon off
Dorrcl. 1 am a Papist now.
Oates. I desire, my lonl, the Court would be
pleased to take notice of it ; he owns he was
reconciled to the Church of Itomc.
Dnrrel, Mr. Oates, to satisfy you, I went
over when i was a child of 12 or 13 years old,
and so was bred in that i>crsuasion.
L. C, J. Well, well, we all observe what
he savs.
Soi. Gen. Pray swear Mr. Oslwurn. [Which
was done.]
Alt. Gen. My lonl, we call this person only
to this matter. 'Pray, Sir, will you give the
court and the jury an account what discourse
you had with Mr. Ifilsley about Oates, and
pray, Sir, tell the tune when it was ?
Oibourn. My lord, I went out of town tlie
30th «»f April, "the year before the |>retended
j Ph.t was discovcreil by Mr. Oates, and I met
j wiih ?ilr. llilsW'y two or three days before, and
\ cntiuiringof him about the affairs of St Omers,
. he tol(! me of a minist.T of the Church of Eng-
land that \^as come thither to be a student
tliere, who went under tli-j name of Saniftsoii
Lucy, hut his right name was Oates ; I asked
him'what he pretend(.Hl to ; did he intend to be
of that order :' He tobl me, he did believe that
he ivonid not l>e ailmittf'd for his irri>gular and
childish beliavioiir, and that he hud \k\\ him
iu the colb'ge ; ai:d this 1 after^rards in dis-
course tohl to madLun Dorrel, who \> a Protr.j-
tant ; and to my mother, who is since di-m!.
Att. Gm. Uiil Mr. OaU'S ubk tiiii ;^iMu-
man any (^uc!ili«^s C
ItOTj snmTKUaS, l tAmn B.-l6Uf^lHrf^nw Ctia,
L. C. J. Wbat reli
wlMilKiigiMb«w«fr
ioo are you <ili 8ir F
reliffioo «i
Otloiini. 1 am a Koma Catholic, ny lord.
80L Oen. Now, B(iy kini,
-lir. Bunafegr. Pray awei
to call
[Whicli
Aih Om. Mr. Bamabyy prav will yoo ae-
■^oaint my loH aad the juiy, or t^ liiiie wbta
you came ftoni fk. Omers to Englaiui, aad
mhm you met with Mr. Hilsley r
. Barmi^. InNtwidiHikleyiMithaiethof
AfrilOldSlile,mtbey«ar78; tbcnlpwaucd
vgrlMirDeyUM fbUowuig day to 9l Omera.
Wiiere did ymi meet Urn r
Bumaby. Belweea Sittenboani aad Ca«ter-
tavf^aad afterwaida 1 pumoed my joumey
Am Cantcrhmy to Dover, fioM ftbenea to Ca-
hdi, aad frpm wonea to 8c. Ome^^ I arrived
at hL Omen the 9lat of April Old Stile,
whiehwaetbe IK of May New Stiles upon
the td of May Mr. OateewiisiB myeompaoy ;
I waa walkii^in the garden, and M'came into
miy eompany.
L.C.J. When waa itr
Btt raeJiy. The «d of Ma^ New Stile, aad the
^ 0d of May again 1 went into the canleo, and
there he was with bm again ; aaa the 5lh of
Jfay I mw him agi^
L.C.J. Wberer
JBtirmiky. Intherhetoridkfom.
' X. C, X But where? In whMt pboef
BaraaH. At St Omera.
■. X. C. ^ Yon ipeak of yoarown knowladge,
jroo are rare you aaw bim there at thoee times ?
Bunuihy, Ves in the Rhetorick achool, and
in the garden.
Att, Gen. What more dcr yoa know of him ?
Burnaby, 1 saw him again the 8th of May
New StUe, that is the 28th of April Old Stile ;
I mean by New Stile, that stile which was used
jn th^ place where 1 was then.
Att. Gen. How long was he there before he
went away ?
- Burntiojf, I know he was there from the
•dd of May, the day after I came thither, to the
.IKMh of June, and then I went away, or there-
<abouU.
X. C. J. Did you see him daily all that time.
Bumabjf. Yes, from day \o day he was not
4>ut of the bouse.
Lh C. J, Were you a scholar there with
liim? — Bumabjf, Yes, I was.
L. C. J. What year was that?
Bumaby. Inthevear78.
Att. Gen. Mr. Oates may ask him wbat
fioestions he will.
Oate». My lord, he says he went away ; I
(desire to know whither he did go.
Burnabu. I went away the 20th of June
from St. Omers, it is no matter whither 1 went.
Oatrs. I desire he may give an account
what religion he is of.-
Bunuiy, I am a'Koman Catholic.
Os/Cf. my knrd, I desire to know whether
he be notof tliat order.
X. C. /.That IwiilMlMkhimil'llas.
. Omia. Tnily, aiy lord, I
hard matter tor me to iMtta
it
\
L.C.J. 1 have toU you alrcad|
not to ask aay qucstioas of any witai
may aal^iecttbem to any penalty,
them accuse tbemselve« of any onna
(Vtes. My lord, I humbly desire
giro an acoouat, wtielhar he woraa
led into the sodeto. '
JLC.J. I teU yoo, he ia not ts
that i|ocstioB.
Oatet, He haa fwned it before.
JLCJ. Do you take your advaai
ifyoQcaaprofeit.
Omim. Tbea, mj bid, I dcaire to
whether or ao he md appear as a win
Trial of the fire Jeauits.
Bumokf. No, my kiid, 1 4id net
Oate$. Pkay, mj lord, ask him a
waa not summoned to ^psar then.
Bumaby. No, I waa imL
Omte$, Pny, my h>rd,ask him, wl
heisto have for comhig andgiviaf
denoe.
. JL C./. Areyou to hareany tcwi
uiga witneas in this causeF
Bunu^. None, my.lord, that I b
L. C. XThat was a proper qoci
asked, and yen hare a fair miswer to i
Oatei, Pray, Mr. Bomaby, by a
did vou go at St. OmetsF
Ifarna^y. Bv the name of Blnnt.
Att. Gen. And wbat name did
there?
Bumahy. Who, Sir ?
Att. Gen. Mr. Oates?
Burnahy. Bv the name of Sampsc
Oates. My lord, 1 desire yoo to
whether he did know of any Consult
to be held here iu London, in April
by whom he knew it ?
L. C. J. What say you, Sir, did ;
of any consult ?
Burnaby. No, 1 neither heard <
knew auv thinpf of it.
Atl. Oen. Now, my lonl, we shal
another period of time, and thai is c<
Pool. Swear Mr. Pik)1. [Which n
SoL. Gen. Pray will you acquain
and the jury, whether you knew Mr.
at St. Omers?
'JPoot. Yes, I dill, Sir.
Sol. Gen. Do you know the time
came to St. Omers?
Pool. No, I do uo not remember it
Alt. Gen. When did you come<
Sf. Omers?
J'oul. The 25lh of April.
Att. Gen. What Stile? -Poo/. Old
Att. Gen. In w hat year ?
Fool. In the year 1678.
Att. Gen. Did you know Mr. Oa
Omers ?
Fool. Yes, I did know thatgeolka
Att. Gen. Was be at St. Omen i
youwaathei^f— iW. liai^haiiib
J
VTATE TRIALS, 1 James II. iS^S.^for Petfuff,
fllOtJ
1 you Itavc him llicrc when you
I liid letve him tbjere when I
f
•• Pray tell ihe court sorae particu*
Hly " 'T ""^- -mber it, ami upon what
jpoft „,^ , .cawoti of my brotber'i
ine ovrr, and 1 can tdl ^¥eral par*
my journey ; 1 came away upon ihe
, ■fkii 1 c&um; to LondoQ upon the
Uowing.
fn. You ore it] re you l^h Mr. Gates
'e%, 1 am aure 1 did \tuye Mr. Oatea
*n f cameauaVf aod I came away
i^ihoi'May New Stile, the 25th of
l^tiJe.
<t. Prey how long did you know Mr.
a?
knew him there from Christmaa be^
. You were of the college, were you
o/. Yes, I was a i»tndeut there,
. Vou are auie he was there all the
do not remember he was a day ab-
if he had gone away, particular no-
I have b«eo taken of it.
. Did you aee liim there two or three
e you came away ^
•aw him tiiat muniingr | came away.
And what time before T
tmm him two or three doya before
X Can yOQ name any particular
saw him the 1st of Hay, and the Sd
lud the 5th of MttVt uhith waa the
K^Utd Mtde, and thea 1 came away,
^gft yuu aure you tett him there
r in aure I left him there, I can
itiioat any difficulty at alL
'. What do you ask him, Mr. Gates?
1 de*ii» to know >vhat religion he is
tuat religion are you off
a Kitmaa Catholic.
I decire yourlonlship wuuld ask him,
be was a witneaa at the Trial of the
:»» or at LAnghora's Trial.
lio, 1 waa never an evidence before io
IVay, my lord, ask him, wh^^tUer he
ilmiiled into Ihe Sodality ufthe Vir
\ No^ mdeed, I shall ask him no such
my lord, let him auswer it.
e what yoa can when it come
^bui 4tk htm DO entangUng q^ies-
Oates, It is my
i agauiit me«
defence to ditahle the wit*
fhitM made htm!ietf liable to a pe-
; m that itmmary.
Mp# a man may be at St, OoMrs
tiH |it&iah^ f9r it^ &lr, Qiitet«
L, C7J, But they must not be a£»ked what
may make them accuse themaelvea.
Gates. My lord, it it hard that the witnestei ;
slmtl not he made to answer tny, questions.
X. C. J, Pray, Sir, l»e quiet j we have told
you often enouj^h already, ycm must not think
to govern Its, it must nothe*allowed.
i)aiu. My lord, I de-s^ire he may be asked
then, wluit reward he has to come and swear ,j
in this cause.
Fool, My lord, 1 do not know that I am i
much as to have my charg:Qs borne.
X. C. J. Arc you to have any i-ewardf
Pool, No, my lord, that 1 know of.
Oat€9. Pray, my lord, I desire he may W
asked, what was the occa&ion of Mr. BiiBfey'*
cotniiig' Sway from HL Gmers.
Pool, Indeed I did not exMinine into the oc-
casion Bt all, for I wss never a man that med*
died or made on any side, hut lived quietly in the
coltege, and minded my studies.
Oate$, My lord, I desitc your lordship to- |
ask him, whether he did know of any codbuII
of the Jesuits in April 167B, and from whom
he knew it.
PqoL 1 know not of any particular consult,
i heard some-tiuDg in general of a Triemual
Congregation, but f cannot speak any thing 4
aiy owu knowlcfdge.
Oa/rir My lord, f desire to know of him, i
he can lell when i came to St. Gmeis P
X. C, J, Do you know when Gates came io
St» Omers.
Poid, About Christmas, as near as I can re*
memljer, it was the liitter i-nd of November.
Oiit€4. How much before or after ChrisitmaAl
was it?
Pool, X cannot tell eiractly.
Oaten, Whatyear wasitin?— Poo/, fn 1677.
Gates, I desire to know of him, lYty lord,
whether he aaw me every day at 8t. Gmersal
dinner.
Pool, i cannot say that ever I knctv he wao j
absent any one day, 'never three days I think 1 1
may atfirm, but only when he was in the In*
firmary.
Alt, Gen. That*s the place where they]
when they are sick.
Gates, Prny, my lord, ask hini by
name iie went, when he Yias there in the col* i
lege, — Pool. By the name of KiUin^'1>eck.
SoL Crn, By what nanic «!i(t he jj;o, I prajf I
you P — PooL By the name af Sampson Lucy, j
SoL Ccn. Swtr.r Mr. Henry Thornton.— ^J
[Which was done.]
Att» Gen, Mj\ Tbonitort, pray where wero
you in the year JC78?
Thornton* At St, Omers, my lord.
Att. Gen, Do you remeujtier Mr. Oataf |
there, do you know him?
T/tQmton, Yes, i know hjra vei y well.
Att, Gen* When did he come tbither ?
Thornion. He caiue ihero ahout v^'hristmif
1«7*
An, (hik» VLq^ \
40
[ Vn^ ^ \^ <s^ifc^uh^\^'^^i%^
Ii07j flTATIltWALSb i lAHM IL iCpA^BM f^llNKtatak [IM
Be flaid than liHflt Ma Bii^
tiii'i Efe, in June 1078.
: Alt* Qmu MidMUiuBir joo hmmF
SRbniloib Yflt»the£Teof8l. J«luiBi|iliit
.ai«.Gn.Wliit8liler
' ML Gem. 1M pmwfhm tken aB tfie
MnrTfmrfltfla^ DIM thee
npoB file
itheildi
_ . Mw lum die Ut of
MftyKmr fltfla^ opM the oonii^ of M r. Bv-
Mbgrtothe college; mmI pwtmlaily egno I
— Miliii him Ihete the M ef Mey» wbea my
eclM-IUIows exIubiM Ml eetioo, er plnr.
^<.Gm. WasMr.OiAMtlienitlMar
TkanUmu Yes, I tew hini pneoit M H, nd
1 knew it ^ thie pertkolar etreneMHani, thge
> betweea him end another
ptoeolowelhttJi^ar
Mr./iNut. DayoaeeehimtheSSdefilprO
CMd fltiHthatbtbrSdof )!•¥ NevfiSe,
whkh wee the day after your pny, that yen
thetldidoM
nerelde. Idenot
. IfeJaeei. Doyou
I away fipom St Oamri 7
'.Ptool
Jlomloa. Yee,.Ido.
llr. /oeef. Wheo was that?
I%omt<m. The 6th of May New Stile.
Mr. Jones. Wai Gates at St.Omenattbat
J%omt<m. Yes, he was there then, I am sure.
Att. Gen. Was not be Reader there in the
college?
iSomUm. He was Reader in the Sodality,
and to my knowledge, be did not mim once
from the 84th of April Neir Stile, to the 34th
of May New Stile, irom bebg there, and read-
ing in-ihe eodality.
. XC. J. What did he use to read?
Thornton. Some spiritual book, or piece of
divinity, or the like, as it was usual to bare read
erery %nday and Holiday.
L.CJ. And that is one reason why you
conclude he was there all tbat while, beoause
erery Sunday and Holiday be was to read, and
• did read f-^Thomion. Yes, my lord.
Oatee, I^y, my lord, be pleased to ask this
gentleman what religion he is of. *
TkorniQn. A Ronum CathoUc.
Oaiee. Where does he lire?
L, C. J. Where do you lire, Mr. Thornton ?
nomiotL I am a Northumberiand man,
Ihat^s my country.
Oata. My lord, I desire to know of him,
when he dkl oome ftem St. Omers.
TkonUan, I came from St Omen, my lord,
ttwp yean jAar theft aslea.veHt away
OMb tagnagrlKbi^l^MiiNirithim,
tS!L
wnc is wae tnaa wni-i
hoaeeorcoUege.
Snbmlen. it WM can Mr.
Oatei. Prsy,myhNfdhe|
wbataehoelheweeiir
TkonUom. Iwaainfl
OaUi. Then, my lort» I ^
othar qBcatifln,ima tteft faHw,
wMnoft anitnnsinhehalf if <"
atfdMr.Langhenir
IWnten. Mn»Iwaai
Otfei. My hnd, IdeMataiMT if he em
teUfthceceMiencrMr.
finom StOmenL
nmrmiom. Um
InemeMpimdinfteit
Oste.TMi,myloni,1i
qo^Btun, Why he 4b 10 praeiaa an te Mi 1^
eamtanoe cf vnaft wae none in Aftn .iM
May, when ha deea nOft gitn nn noaemhtf
X.C.X Yee,botdMjde; tlwy gMjM
npartionhur aeipHnft tnm Inn tiflMerum
coming thtthsTt vhicli
eoaseeaytheiiilsrendi
ginning of December, thoy are ;
ftwi ihaft lime an along tBlJnm
Os^es. I beg yoqrTirfd>ya imifcilJ
not heee tiMH ha aaid any io
L.C.J. Ifyouwili,l*lli
' Ihryawi "'' "
Oatet. tf
£. a J. thHimMirhalli
reoAomber that Oates was dwia in
ftra, and in Fefaniary.brfbfeF
Yes.ri
Thornton. Yes, f particulaity reoM
March before, be did read a rimcnloaB
the Sodality, and he was remaikaUe in lbs
house by twenty ridiculous pasaasea.
Oatei. I do acknowledge I md'
read a pleesant book, callM, i * The
'oftbeClergy.'^r
X. C. J. By whoee order did ha icad tbat
book m the Sodality?
Thornton. 1 do not know wihether it wmly
his owjx election that he wae Reader tbsre^er
by the command of the Prefect of the Smttn^
that has the care of the students, and appehU
them tbeir business.
Oatei. Pray.my iord,bepleanedlaaAhmb
how long he was resident at St Omera.
I%omton. I was there eeren years.
L. C. J. You said he waa tlMce in Jaas^tiB
Midsummer Ere.
Thornton. Yes, he wae ao.
Oatei. I own that I was there in Jaas^ M
that wee after I returned fimn England.
L.C.J. Whendoyoueay heleft thasri*
legefirat?
Thornton. He nerer left the colkga i«i
the tune of hie oonung thither finlulMi^
summer ere, only one time thai ha am t^
Watton, and that waa but a day ar tlioat aMh
whidi is not a leagne ant af town.
X.O./:Doyo«
STATE TRIALS, I Jam es II. 1 6a5*-/tfr Ptrfurj. [ 1 HQ j
Sol, Ocn, Da yuu remember )Ir, Oates tber« j
• Yfi, my lord, ?ery well,
Pl'b«ii wM it he wetjt to WattonF
on. About the latter end of January,
remember, and in February above
ie, I remember biia particularly to be
L Now, Mr. Oates, you see he speaks
times besides April and MaXt and he
ipoQ my word, very notable circum-
He says he went to school with me
liinJc^ ray lord ?
m. No, X say be was in the same
F. But not in the same Classis, for it
n were ia the Hhetorick ibrui, and he
Hi. My lord, be went there by rea*
I age, and upon no otiier account * he
re gsme elsewhere wiih us who were
: form, for any great store of learuinj^
h You hear him, 1 suppose, Mr.
>d Sivea no great commendation of
^iarsiiip*
That IS aothiug to this ijui?stion ; but
lord, be pleased to ask him, Wbe*
4 »ot hear of a Consult of the Jesuits
ill England in April 1678?
F. What say you, fcfir? Did you hear
dt consult f
on. Yes, my lord, I did hear of a tri-
kgregatiou, such as ut^ed to be held by
. Utat did not belong to me to eoquire
My lord, I desire to know of whom
arit?
I How do vou know there was such
? Who told you of it?
(I heard of it in the house, and I
I it WHS the custom of that society
hftFe such a meeUng once tu tliree
m* Pray for what purpose did they
M. Ai I hare been told, it was to
mrator to Uotne, and for their ma*
heir either uifairs, uhich concerned
iiy,
n. Have die Jesuits usually such a
ice in thi-ee years, Sir ?
011. I waa never prcseat at any such
(•an, 1 was not capable of it.
m But was It used to be said so f
M. Yea, niy lord, I have heard it
id read of is.
I Bfr. Oates, will yoa ask him any
ittoosf — Outu, No, my lord.
, WeU then, g^ od. Air. Attorney,
QOtber witnesa.
leu. Swear Mr. William Conway,
ras done.l
m, Mc. Conway, Dray will you g\^
nd tlic jury an ^udcouhI where you
!• jeer lCi?7, and ia the year 1678^
k I vpaa tliea at Sl Onitrh oiy
at any time P
Ctifitf ay. Yes, my lord, I do.
^i Gen, Pray, at what time was he the
as you remember ?
Conway. He came in December befor
Christmtis 1677, and did not go away till Juoi
1078.
SoL Gee, What time in June did he gol
away ?
dnnjffy, Abnut the !30th of June, I think.
Sot. Gm, Were you tliere all that year ?
Conttiti;^, Yes, 1 was there a acbolar in th4i1
college.
Mr. Jones^ Was he all the time you speak ofil
the college? — Conwuy, He lay out one tught^]
So(, Gen. What time was thatP
Conuatf. Iq January, to the best of my
meinbrauce,
SitL Gen. Could be be out of the college anyl
time and not be missM ?
Cona^ay. No, my lord, he could not.
SoL Gen. Did you miss him at any time?
Conwuy, No, my loi"d.
SoL Gen. Was he there in April 1678 ?
Conicay. Yes, my lord,
St>i» Gea. Can you tell any particular pas
sagee that can make you remember it?
CoiiA^oy. Yes, my lord, I can.
Soi, Gen. Tell my lord and the jury boa
you can remember it.
Conway. I remember IMr. Hilslev's depar«
ture, which was the 24th of April New htileytl
and soon at\er Mr. Burnaby came, but f do (
not know the time e^ractly ; I was desirous
know of Mr. Burnaby, whether he met Mr.
Hilsley upon the way I* And he told me he d'u
meet him ; and the ncjtt day 1 saw >lr. Oab
and Mr. Bumahy walking together very famii*
liarly, and I took particular notice of it at C
lime, Mr. Burnaby l>tmg but newly come, W9 1
that I look hioitohaTC known Mr. Bumahrl
before, or else I conclufled him to be a litiM^ ]
impudent by his intruding into his company.
SoL Gen, Do you remember him in Merc^ |
before ? — Coaway. Yes, Sir,
SoL Gen, Wiiat particuUrs do you ramem<-
ber of his being there then f
Conway. 1 remember him to be there on the
Thursday in Mid-Lent, the scholars in the col*
lege had'a petmliar recreation, which ihey catl, |
* Hawing of the witch,* and Mr, OaUfS wa» I
among them ; and f was one of them tha% j
broke a pan about his bead for recreation.
SoL G(n. Do you remember the 1st of May^ J
that there was in your college a play acted ? • |
Conmay, As for the play, 1 remember wbal I
part esquire Pool acted fo it, but I rvmemhep ]
uol any particulars that f^ttu make me so sure
as to swear that Oates was there.
Ati, Gen, Do you remember any scufflinf |
Ant a eleee there r
Cof^moy. I do not remember tl of my ewi^l
knowlrdgc ; I beani of it afterwarda.
S<yL Gen, You say that you aaw Mr. Bur*J
naby and him walking together llie next day. j
aiVr he came ?— Conaa^^. \^^ V ^^Vk^'^^t,
Itll] SrATBlBiAUllAtiiill.
Cppway* MylBtdytiiq^wiiUMiiliiff chwcD
MeoiiiiiifftotiieeiMtomloMid} IwllIr.Oite
took tiM book, and did rMd.
SoLOtm. IMd iMtad oonolaiitfyr
CbMMy. I did netdlr niii lum oay Sunday
or HoKday all the time.
X.C./ From what time to what tune did
heffodf
OwMNy. Fhm a litde alle» Eaalar tlD he
wni away.
JM. Gen. Toitoiaany taken notioe of in
I<8«^lkif^fllb0ita^ ttttt
tiie ooikige when any nerooii who ia a
fooe away fioni the eiuie^T
Cmwuji. There ia nothing moie diaeooraM
of an|ong the aebolara than that, when it hap-
ena atty one geca ont of the eoQege.
X. til J. And pray when did he go awayf
Cummr. In Jnne^ abont the twentieth, aa
. Soi. Oim. Did yon obaerfe him at dhmer
tiiereoonatantlyr
Ommn. Yes, he sat by himaelf.
8oL€fem. How came that to paaa?
Cbnway. He sat at a little table in the hall
by KJmaJf, for he pretended, being a man in
yeara, he ooiild not diet aa die reat ^ the young
atodenti did, and therefoie obtained lea?e to art
nkneata Jittle table by himseir, and heaat
MBtto thetaUeof the Fathers, to whidi ail
tiieatndenta were to aaake their ic<mcence be-
ftfo they aat down.
Ih C. J. He was a wy remaricable man by
biasitthig by himself; did he sit there always?
Caiuhy. He changed his table once, and I
tocdc notioe that he ftat on the other side of the
refectory.
Sol. Gen. When was that, I pray, can you
remember?
Ommmf. That was a little afWr Easter.
Att. Gen. Will Mr. Gates ask him any
^neationaP
Oalei; Pray, my lord, will you ask this gen-
llemnn what religion be is of ?
Cofiapoy. I am a Roman Catholic.
Oaiei. VnVy ask him where he lives P
X. C.J. Wliere do you live, Sir?
CantMw. Wh^re, now at present, my lord?
X. C. J. Where do you usually live ?
Vonwtiy. I am a Flmtahire man, my lord.
Oatfi, Pray ask him what name he did go
by at St. Omers ?
Conway. By the name of William Parry.
(hiet. Pray ask him by what name he gave
hia efidence m atfhe fire JesuiU Trial ?
X. C. J. Were you a witoess at the Trial of
tbeilTe Jesniti? — Conway. Yes, I was.
L.C.J. By tvhat name did yon giye yonr
evidence there?
Conway. By the name of Flurry.
Oatet. Then I desire the coort tot
he represented hhnadf by nfl^lMd
conrtofreoord., , ^. . '
Canwajtm Iwen^nvn'
^^My. YVfltfd.
OHM. Pmy, mylori. Mk Uii^ wtol
rfhni*
edhimortlwtooBMter
CtmHy. I Imh4 it tmmf tbmwm
effea
■ehobn ; mm! Mdnf mow af tke JM
•ftrtoit,IwMWM.
artji
Att. Gem. Iittu emlAi^ tm ihmit
haive aoMi meetHiga ■
GMaMy. They ha?n a nongvagalito
i mS^
8ii.G€n. ]>oesitgohytheMUM«f
M
ne»
anlt, or what name baa itf
%^
•«
aoLGem. Whatiatfieendor i
■a ymi have heard?
Cmimmy. They say it waa to
corator to aend to Rome, and gifv an
of the prorince.
OaUt. My lord, I wooM vk ham
fpeation. Whether he kto hmm any
ror giring thia eijlinui here T
C^naMy. No, MHhatl kna«r < bnl wM
I enpect from Ahmghty God. ' , *
Qfllof. Pray ask him, bow lang kaltad a|
"' ^ a'?— CoiMMw. FiveyeaiB. ' -
My lord, Ihafe done with Mia.
m. Then call Mr. Bwrngammu^ mk
- ••WhksbwaadoneSr
ir. Hagnenton^ ptaj wMjm
kird and the jory, wen M
in the year 1C78. wift m
St Omera'P— I
Oatet.
Sol. Gen
swear htm. [Whicbwaa
Ait. Gen. BIr. **
acquaint my
at St Omen
Oatea?
Haggentane, Yes, I was, my bud, I brf
the hoDonr to be of die aame heneh with As
doctor of Salamanca.
L, C. J. You mean you wane of the mm
class with him ?
SaggtnUme. Yea, my lord, of the mm
class.
L.C.J. In what year waa it r
Haggentone. In the year 1078*
Att. Gen^ In what fimi ware yon P
Hagferitone. In the same bench wilhK
Oates, m the ihetoric form.
Att, Gen. I>o you remetaber Mr. Oilai li
•April 1678 T-^Haggentone. Yea.
Att. Gen. What time?
Hmxentone. He spoke nnto
of Apnl.
Att. Gen. What stile do yon OMaa 7
Haggentone. New Stile, Sir ; toaifeilam>
insionTi speak of die atile of the pli
I was; be asked me canceming o
fidlow Mr. Hilsiey, %ho waa than' gana Mf
the coUege, whetherl had bcmd my iHr
foomhitoainoehewentawny ; smIIm
' " ■ bahad,lNr " "
STATE TRIALS, 1 James If. l6fi5.-/or Ptrjury.
niM
► flo rtry much : he was called Titoi
If he hiLd twenty names,.
pt. Wm he there all April, Sir f
■M^, Yes» he was. Sir.
^B'Did you know him iti March be-
Yv, he^ wat there all March
^fi, Waa he there in Febraaiy f
'tione, Yei, as near as I can re-
|ie iras ahseni but one day^ and then
|^|¥altoo in February, or eUe in
PBk yoQ Remember when he came
1foi«^. YeSf my lord, he came m De^
%r Christmaiias 1 reraerober.
^ Was it iibout (hat uoie, upon your
Htone. 1 tpeok it upon my oath^ it
'. When did he go away f
"ttone. Atioul the tatter end of June.
► Was he absent any tirae between
r and J tine ?
ttone. I do not remember that he
\iy save only in January or February^
was not for abare a nighty when he
ITattcin.
I Might not he be absent, and you
ftt of know it ?
^ttofie. Sure if he had been absent, we
but baTC known h,
\ How so, pray you ?
*titme. If any j^oes away, it is so pub-
cannot be without notice being taken
PH. Can yon remember by any par-
Eien be was thefe in April or May,
hitfone. He spoke to me on the 2^h
few Stile, and told me, that tfierc was
f Engliahman had been there to beg-
ROd there was a collection made for
igthe scholars ; but he said he would
nothing', for he told me he had be«n
f such an one of some pieces of eight
this I remember was the 28th or
pril New Stile. I saw hira there the
ly ; upon the ^nd of May there was
of the Bcbolarsi and he wiis present
^■ft of May I was at school with
^|p. Foo) went away for Eng^laodf
in him ahont that lime preach a
[|» for he would undertake some-
rt ' 'said in it, that the late
betwixt two opinions,
« w|M I V went between his legs,
I thi*» in May ?
Yes, iu*»t afier Mr, Pool weiit
id, and he bad some nretty re-
icmi on about Toby's dog
^0 you ask this witness any
ffrMed to ask him, my lord,
iof?
I taa a ptfkiHf my brd^ I am
Ottta. Pray, my lord, ask where he lives f
Haggtrstonc. At London,
Onttt, Pray ask hira what countryman he tsf
Hftggertlone. 1 amaNorlhuml>erland-man *
my fatlier is sir Tliomais Hagg-erstone, a matt
b<itcr known than your father, Dr. Gates.
L. C* /. Nay, nay, do not be in a pasitoo,
man.
Oat ex. Pray ask him how long I was with
him at 8t. Omers f
Haggerttone, For half a year at least,
Oatcs. My lord, I desire to know how lon^
he staid there himself?
Hag^erttone, I studied my whole course of
humanity there.
X. C, J. How long were you there in ill f
Haggtrsione. Seren years.
Oatet. Pray, my lord, ask him, whether Htf
knows of any consult held, or to be held hero
in England m April 1678 ?
Haggtrttont, Yes, my lord, I saw two of i
the fathers go from St* Omen to the congrecpa*
doD, and was there at their return ; but all that
time I frHqueated Or. Gates's company, and
he remained in the college,
OnUs. Pray, who were these two fathers f
Hagger$tone. Mr, Williams and Mr. Marsh ;
and when they returned, Gates asked me about
it, Whetlier they had been to the consult ? and
I told him there was such a thing, but he never
knew it till afterwards ; but this 1 am sure of, he
was never missing all the while ; I sat on the
same bench with him.
Oate$. Pray^ my lord^ ask him, what name
he went by at 8t. Gmera P
Haggerstonc. I went by the natne of Harrf
Howard ; my mother was a Howard, doctor.
Oaiei. Pray ask hira, whetlier he came Inta
Eofidand wfien he went away from thence P
Haggerstone. No, I went and studied my
philosophy at Doway.
Outes, 1 desire to ask him one questio«
more.
Haggeritone. Twenty, ifyou please, Doctor*
Oat ft. I desfre to know of him the occasion
of Mr. Hilsley's c<>ming away ?
Haggrrstone, I do know it, but truly I
cannot tell witether it be fit for me to speak of
it, it was upon some unhandsome account, but
I must not blemish any gentleman, I thinks
Oatts, My lord; I will ask him one ques*
tion more, whether ever he was admitted into
the society ?
L. C. }. f will not ask him that question ;
how often have I told you no such ouestiona
are to he asked? Must 1 make him liable to
penalty ? No, ask questions that are fair, and
you shall have a fair answen
Outt*. My lord, i have done then with him,
Sol. Gen. Then swear Mr. Robert Beeston.
[Which was done.]
An. Gen. Pray, Sir, were you at St. Omers
in the year 1077 and 1678 ?
Bt'Citon, Yes, my lord, 1 wss.
Aii* Gen. Did you see Mr, Oatei ther«
then ? Do yon know him f
Benion. Yea, Wtsws^w \v\Te^ its^^^A*^
teebiin tbfft.
I
I
J 1 I5j STATE TRIALS, 1 Jame» IL l6iS.— Trial of Tttm$ Otiet,
I
I
Ati' Gen* Wbal motiths did jfoa see bin)
there?
Betilon. He came there in December, ttie
Ikeginmug as I remcoilicr, uud he staid (here lo
June the) alter emi.
^f;. G<^«, What year was that in?
Be€gimt. He came in 1677, and went away
Iji 1678,
Att. Gen. Did you otmetre him to be there
in April and May 1(378 ?
Beeston, The latter end of April, and the
beginning of ^lay, I did.
An, Gtn. Tell the court pirticuJarly how
yf>u remember it.
Buston. My lord, 1 saw him the l«tof May
at 2sk. Omenii where be pkyed at nine pins,
and I laid a wager upon tiie tame side that he
did t anil lost my money as well as be.
L, C. J. Do you remember any other time?
Beaton. I saw him the Sod ot'Maythy the
came lokeu that I met him in the college tlmt
daVt when our school exhibited •& action in the
hall, and I met him al\er supper ; now in this
action I had both acted and simg^ and they
came and coiig^ratulated me ibr my iinging".
]Vlr. Gales said, if l bad paid for learnings to
mng, I had been basely cheated ; and then in
the morning I was chosen Reader in the So-
dality, the 15th of Aprils or tliereabouts, for t
fortnrg-ht^aud Mr* Oateaby his own submission
was adiiiitled to read^ onljr with this condition,
that if ever be were wanting, I was to read
r'u : but this 1 say, I ueier supplied the
^ e; tbereforf ( am sure he did continue
theri* all the while, and if he had been out, I
miist have been called upon to read.
L. C X Were you in the college all the time
ke waa there ?
Beett&n. Yes, my lord, X was.
L, C* J. Did vOu miRB hitn at any time ?
^cestan. No, i never inisiieit him.
Xh C* J* Are you sure lie was not awaj all .
lat time ?
Betstan. 1 am sore, as much as a roan can
be certain of one thai is of the same family with
himself ; nay* I am as sure of it, as that 1
was tbert myself.
L. C\ /- Can you speok any thing' parti-
cularly of his reading ?
Btaton, My lord, I was to hare read, if he
was absent ; but I vras never called upon to
read, and therefore I may well conclude he
wafc there all the uliifp.
X. C. J. He give-, a materiai evidence,
$ai. Gen, Was Mr. Oai^sncbaremarkabla
man thai he must be missed ?
Beat on. He was vvry particular, both for
age, and that he had a particular table to
eat at.
SoL GifL Can you remember any thing
else?
Beuton, 1 remember too, that when Mr.
fiumaby came first, he was .oflen with hint ;
the ^nd* 3rd, and 4th of May ^ I saw hjin there
with flir. Buroaby^ and I look tiurticukr notice
of the friendship between iWm, which f
thought strange between persons tliat 1 sup-
|Maed never saw one anotlier befo|^.
L. C. X Have jou any i|iie^oi« ta lA
man, Mr. Dates f
Oofef. My lord^ I destre to Mit ibis gf«b>
man what religioo he ia of f
Beaton. I am a Rooian Calbolic.
Otttn, Pray^ my lord, be pleated to 9ik
when he went to St. Omers, am] hImi
came away from thence, and how Umg ha
reiiident there*
Btesion, I know not exactly what jcir ii
was 1 came, but I staid the g?eal«Bt pn4
seven years there.
Oates* Pray, my kird, aak hitD« wbatlMi
went from A, Omen to tbe eooaiill i£ kfA
lG78f
Bet^t^n, There was some ibat paottlhy, 1
did not take much notice of tiiem.
Oata. Pray, my lord, ask liim, wboitm
informed him of that consult P
Bf€9ion, I do ntit know wkio fiaittMlii^ I
only heani of such a rumour.
Att. Gen. Was it an extraordinary tbina!
B^itQn, No, it was but an ordinary Mif
as they useit to have once iu tlirev yeaimi
Oatn. Vou say you saw me wtmj %
there?
X. C. /. He says be belierea lie oufll,!^
cause you were r^der in his iteMl | and if |«
bad been absent be must bav# bseacalkd ii^
to read, which he was not, he aaya,
0ati4. Very well, tirv lord, 1 dcaifv jni
would ask him, wbether he does ool rami
such a thing a& an ej^ht-da^'s escefcise^ vl
those that perform the exerciaei are
from all company daring that titoa?
B«€$tm, Ves, my bi^ I do romeoibir ihi
he was once in that eight-days excreiM*, urf
during the eight days! saw hkm W93k mtk
garden several times.
OtUn. Pray, my bed, ask bisn, tffai««i
an evidence at the*TriaI of the live juiiH,^
Langhorn, and whether be gave ibis tvidaci
long ago ?
M€i4ion. No, I did not, 1 waa oot tbeiK.
Gates. Pravt my lord, ask bim what fraud
ho is to have r
L. C. X Are YOU to hare amy rvwiid ir
yourtesiiiuuuy, Mr. Beeston f
Beeiton. No, my bid.
Gale*. My lord, I desire to know of kia^
how he comes to l>e pii-ked out anattf Ibt
rest of the students there, to eooae kmm aadti
an erid«uce in thiH i^use.
Betiion, My brd, I wns subpoitiacd by Ii
mayesty, if I Imew any thmg of tbi* maiia^
that [ should come here and testiiy my kiiov-
^Outn. Pray, by what luaiiia did be go at 9l
Omers ?
JBsetlon. By the name of Beeatoa, as
now*
Gaii». Andiiihat his own name f
Bititon. Yes, my brd.
L. C. X Pray, go on, Mr. Attorney*
AU. Gen. Sfwear Clemcni SnuUi, (
w^done.]
Sol. Gen. Pray, Sir, wasyoilMaL
in the year 1677 and 167Q ?
STATE TRIALS, 1 Jambs IL \6tS^at Pnjnrif.
[llig
IWM. .
)o you remember Mr. Oetee
me?
I was in the same daas with
*raj9 when came he thither, and
e stay there?
same a Uttle before Christmas,
ine.
^as he not absent at any lime
be was not, except one day.
k> JOM remember Watson's busi-
thither in January ?
cold roe of it, and that he de-
he rector leave to go.
IS he absent any other time till
my lord, fori will tell you, I
d with him, eat a collation with
iiemoon, and breakfasted and
same rdfectory, during all that
hen he or I was in the infirmary.
tieneTer he was absent, he was
^, washed
my lord.
d not he miss his breakfast any
hfle?
B did, we used to enquire after
^y when were you in the infir-
<lst of April, New Stile, I fell
lined sick till May the 7th, and
mary, and then he visited meal-
e? enr other day in the infirmary ;
of M^y I saw him and one Mr.
ther, aod on the day Mr. Pool
ih I take to be the 5th of May,
le to me as soon as he was gone
le, and told me of it ; and he did
hat day that Mr. Hilsley went
fas the 84th of April, New Stile.
^as not he in the mfirmary him-
, durmg this time he came into
and was sick there.
?hcn was that r
y or two after Mr. Hilsley went
itinoad there two or three days,
er it particularly by this drcum-
proposed a question to the phy-
mself in Latia, and spoke a so-
. was this, he said, * Si placet,
inu'
• did say so ?
m did, he says, speak that false
oetor.
t^f fabe LAtin, indeed !
e know that ; but it seems it was
miencftme be away from St
oitfieaoth of June; something
•f jHOe, as I remember.
kve yon tore be was not out of
\ kBg as to make a journey to
Smith, No, I am sure he could not without
being missed ; and going to school with him,
and eating dinner and supper with constantly
always at the same place, I must needs know
if he had cone.
Oates. When went I from St. Omers, doei
he say p
Smith, After the SOth of June 1678.
X. C. J. He is yuur old acquaintance and
schoolfellow, Mr. Gates ; you visited him when
he was sick.
Oatei. What religion is this gentleman of,
my lord, I would know P
Smith, I am a Roman CathoKc.
Oattt. I desireyour lordship to ask him how
long he lived at m. Omers P
Smith, Above six ;fear8.
Oatat, Pray ask him when he came away P
Smith. A htde after Dr. Gates came away.
Oatt$. Did he come directly fbr JBnglan^
Smith. No, I did not
Oata. Whither did he go then P
Smith. I went about a little.
Oatet. Where, my lord.
Smth. I went about to take some turns in
the Low-Countries \ I went to Watton, and up
and down.
Oatet, He is a Jesuit, my lord, and that the
world knows and must know.
L. C, J, I know nothing of it, I do assure
you.
Oatei. Pt«y, my lord, be pleased to ask him,
whether he did not hear of a Consult of Jesuits
in April 1678, and what Jesuits went from St
Gmers to it
Smith, I heard it was a rumour in the col-
lege, that there was to be a c6ngr^;ation ai
that tiine, but I know not where particularly it
was to be kept ; but I knew that then there
passed by St. Omers two fathers, Mr. Marsh
and Mr. Williams.
Oata, What were they?
Smith. Jesuits.
L. C, J, He told you they were fbthers.
Att. Gen, Pray, was it an extraordinary, or
an ordinary meeting that?
Smith. They used to say m the collcfe,
that it was an ordinary thing to have such a
congregation every three years.
Sol. Gen. Pray, swear Mr. Edward Price.
[Which was done.!
Att. Gen. Pray, illr. Price, will you give my
lord and the gentlemen of the jury an account,
whether vou were . at St. Gmers in the year
1677, and 1678?
Price. I was there both these years.
Att. Gfen. Do you remember Mr. Qatea
there ?
Price. Yes, my lord, I do.
Att. Gen. When did he come, and when Ad
he go away?
Price. He came there about December 1677«
nnd he continued there till June 1678.
AH. Gen. Was he absent from St. Omtn^
at any time all that while ?
Price. Neverthatl knowof, but one iddbIL
atWattoo, when Vie cun^VM^ ^^%(KwmiC;
day, and thai waa VDL)aD»ar| .
1119] STATETRIALS, iJAMBsn. le^S.-^TrMofliiUM (Me$,
Alt, Gen. Do ^ou remember particularly
that be wa« tbere in April and May 1678.
Price, I remember Mr. Hilsley, according
to the foreiipi Stile, left St. Omen upon the
S4th of April 1678. I was told the following
clji^r that Mr. Gates went into the infirmary,
which was Monday the 25th, and ttaid there
a day or two, and upon Wedneiday the S7th
1 saw him going to mass ; then upon the Sun-
day following, which was the 1st of May N«w
StOe, came Mr. Bumaby to St. Omers, and I
■aw him in Oates's company that day, and I
saw him on Monday ajg^ain tne Sd of May in
his company ; I saw him the Sd of May at the
table, wnich I particularly remember, uecause
it was the feast of the Invention of the Holy
Cross : the 4th of May I have no circumstance
to lemember him by ; but the 5th of May I
* saw him take his leave of Mr. Pool, and I like-
wise saw him the 10th or lUh of May at ano-
ther of our actions, wherein Mr. Watson had a
quarrel with him, and beat him. I should have
missed him above any other man, because he
was so noted a man.
Au. Gen, What was he noted for f for any
thing dse but his distinct place in the refrec-
Price, Yes, he was very absurd, and always
quarrelling with the students there.
X. C. X Do you remember him read in the
SodaUty?
Pries. I was not of that bench that he was
of.
Gates, My lord, 1 desire to know what this
gentleman's religion is ?
X. C. J. What religion are you of, Sir ?
Price, If your lordship please to know, I am
a Roman Catholic.
Gates, My lord, 1 desire to ask him, when
he went first to St Omers, and when he came
away?
Price, I was six years at St. Omers ; I was
there a twelve-month before Mr. Oates came
thither, and came from thence about three
years ago.
Gates, Did you come directly to England
when you came away f
Price. My lord, I went to Liege to sXixdy
philosophy, and I live now with iny father at
home.
Gates, My lord, I desire to ask him, whe-
ther he did not hear of a consult to be held in
April 1678.
Price, I did hear there was a congregation
which was their usual triennial meeting, aud
particularly I remember about that time there
came Mr. Williams, and Mr. Marsh, and it was
reported that they were going to the congre-
gation.
Gates, I desire to ask him, if he was not a
witness at the Trial of the five Jesuits, or at the
Trial of Langhorn f
Price, No, I was not.
Gates. Pray, what name did ht go by at St.
Omers?
Prise. By m J own wmntf wUdi H £dward
Sol. Gen. Then swear the next, tl
James Doddington.
Att, Gen. Iray, Sir, were you at S
in the year 1677, and 1678 ?
Doddington, Yes, Sir, I was.
Att. Gen. Did you know that g<
Mr. Oates, there?
Doddington, I know him ? ery wd
Att. Gen. What time did be oom«
Omers, and how long did he stay thei
Doddington. He came about C
and staid about the latter end of June
Att. Gen. How do yon remembc
there so long? What circumstaiioes
to make you remember it ?
Doddington. In general his conven
canting stories aller dinner and so
.times of recreation, made him so re
that nobody could miss him all the tic
there.
Att, Gen, Did you observe him U
hall, or at the exercises?
. Doddington. Yes, I saw him sen
Sol. Gen, Do you remember the
Hilsley went away ?
Doddington. Yes, it was a little afi
and I do remember that two or three
I went into the infirmary, aud saw ]
there, and had discourses with liim.
Att. Gen. Do you remember Mr. ]
coming to St. Omers, and when was i
Doddington. Yes, the first of May
naby came to St. Omers, and the n
saw Oates with him, and for ten or tv
successively they were in one anott
pany ; and then of a s*idden the cc
ence broke off, but 1 know not upon
count.
X. C. J. Was he a reader there, a
memlier ?
Doddington. I do remember he c
the Sodality.
X. C.J. When was that?
Doddington. I remember he read i
tide.
Gates, Did you hear me read ther
Doddington. Yes, that I did. Sir.
Gates. Were you of tbe Sodality ?
Doddington, Yes, I was. Sir.
Att. Gen. Do you remember the
came away from St. Omers ?
Doddington. It was about Midsuo
lord.
Att. Gen. Were you out of th
yourself at any time \Vheu he was the
Doddington. No, 1 >vaa) not.
X. C. J. Come, 1 will ask you a pi
tion ; was he so long at any time o
college as to come to London and 8ta\
or three days, aud come bdtck again .^
Doddington. My lord, he was so re
by his stories and ridiculous actioos, a
out with every oueof the college, that
been absent, we must needs have mia
X. C. J. Did Tou miss him at any i
Doddington. My kird, I neTcrnj
but one day.
STATE TRIALS, 1 Jambs II. l€8S.—f«r Perfimf.
tiifi
. When was that ?
gton. They said he was gone to
'. What tainfe was that?
glon. In January, about six weeks
ime first.
Pray, my lord, ask him what rdigioo
^fon. I am a Roman Catholic.
And a scholar of St. Omers ?
'. Make your remarks by and by.
Pray, nay lord, ask him what name
yatSt.Omersr
gion. By the name of Hollis, my
Pray, my lord, ask him how long
lident there ?
gton. Near unoa five years.
Pray, my lord, ask him the occasion
ung over at first ?
\^ton. I had business in England, and
iind to see my friends.
Pray, my lord, ask him, whether he
etend at the five Jesuits Trial, that be
r upon the kind's proclamation, to
those that were in the seminaries ?
. Were you at the Trial of the five
ffofi. Yes, I was; but if I came over
:mg^s proclamation, what hurt is there
'. None at all, as I know of.
Pray, my lord, ask him, whether he
again to 8t. Omers, or no ?
gtm^. My lord, I passed by St. Omets
I never staid a day in the allege
Pray, my lord, be pleased to ask him,
le ever heard of a consult of the Je-
pril 1678 ?
gton. I did hear of a congregation,
all it a consult or a congregation, it
. He says he did hear of it.
Ask him, by whom he did hear of it ?
gt&n I savfthe provmcial when he
K from England.
Who was mat provincial ? what was
?
\gton, Mr. Whitebread.
Was not Mr. Whitebread resident
eat St. Omers?
ffofi. Yes, a while he was.
Piay, was not that house under his
sntP
gton. My lord, I can give no account
It it is generally under the govern-
tie rector of St. Omers.
niicyf . Pkay, Sir, ^ve me leave to ask
mustioQ : Mr. Oates speaks of Mr.
ifl ; pray, how did Mr. Whitebread
ly i^en became back from England ?
9gim, I heard say, he did check him
tUy ibr hb many miscarriages.
r.-Ha iMird it, be says, but he does
ittf bii own knowladga ; that is bo
iSs/. Gtn. Pray swear Mr. WiUiam Gerrard.
[Which was done.]
Att. Gen. Were you at St. Omers, Mr. Ger-
rard, in the years 1677, and 1678 P
Gerrard, Yes, I was.
Att. Gen. Did yon know Mr. Oates there?
Gerrard. Where is he, Sir?
Att. Gen, There he is in that comer, do yott
know him ? — Gerrard. Yes.
Att, Gen. When came he to St. Omers?
Gerrard. He came to St Omers in th«
year of our Lord 1677, and he went away in
June 1678?
Att. Gen. Was he there all the time ?
Gerrard. I never remember to have missed
him, but only once, when he went to Watton
for a night.
Att. Gen. By wh^t tokens do you remember
him at any time there in April or May ?
Gerrard. The Sd of May we had a play, and
he was there then ; and 1 remember the $6th
of May he was confirmed, and so was 1, it being
St. Angustin's day, and in the refectory lie had
a table by himself, and I used always at meal-
times to pass by that table, and make a bow to
the fiithers above before 1 sat down at table;
and I do not remember that ever he was absent,
and if he had, I should surely have missed him.
L. C. J. When was St. Augustin's day, that
yon say you and he were confirmed?
Gerrard. It was the 26th of May.
Att. Gen. Do you remember him ior April
there?
Gerrard. I cannot tdl any particnhu' cir-
cumstance in April, but 1 do not remember to
have missed him at all Id April.
Sol. Gen. But you saw him there the Sd of
May, you say ?
Gerrard. Yes, I did so, and the 3Cth of May.
Gates. The 26th of May, Old Stile, I was
there, my lord.
X. C. J. Ay, but he says the 26th of May,
New Stile.
Oates. I was not there then, my lord.
i. C. J. He swears you were.
Sol. Gen. Pray, between the 2d and 27th of
May New Stile, was he absent firom St. Omers
at any time ?
Gerrard. I never remember to have missed
him at all in that time.
Ait. Gen. Do you remember Mr. PooFs and
Mr. Hilsky's going away ?
Gerrard. I do remember Mr. Hilsley's and
Mr. Pool's going away, but I cannot speak par-
ticularly and exactly what thne that was.
L. C. J. Is it usual to haye scholars go
away without being missed ?
Uerrard. No, my lord,- and ho had a parti-
cular place by himself.
Oates. Pray, ask him, my lord, how became
to know that I went away iu June?
Gerrard. Wc ulisscd dim in his place then,
and it was discoui*sed of all over the toif n, that
when the provincial came he was to be dis-
missed.
Gates. I desire to know what ccli^JMRx ti\^
gcntlemaaiaof?
1 If 3] STATE TRIALS, 1 J am ti n. 1 6sS.-TrUt of Ttttu Ottet, \\3jlk
I
I
Gerrard, My lord, 1 am a Roman CatkoUc*
Votes, Fray, my lord, ask him what nanie
he weDi Uy at 8t, Omors ?
Gerrard, By tbe pame of William Clot el*
Oaie%> Pray, my lot«l, ask bini, when he went
tA St Oroffrs, and bow long be was rcfident
lb ere ?
Gtrrard. I caiue there about two years be-
fore be came, and was there about two yearft
alter he went away.
Oatti. Pray my lord, ask kriDi Whetlier be
came dti-ectly for England when he ]et\ Hi.
Omers ?
Gcrrard. No, rov lord, 1 wai four years in
Low-Germany and France, and came into
England the last ye^t*
Oatet. Pray» bV, were you a witness at th«
live Jesuits* tHalf tur at Laugbom^s trial ?
Gerrard, No* I was not ; 1 came but last
year to Eng-Und) I tell you,
Outc$, Fray, my lord, ask this gentleman,
WhelUer he did not know or bear of a consult
of JesuitSj ibat was to be in April 167R, and
from whom he beard jt ?
Get raid. My lord, I know it is the custom
of the Fathers of that order to have a congre-
g'atiun once in three years, about the aflajrs of
their society, but lb en no person is admitted to
be one of that conpnfation, but tbeui ihiit
have buen 18 years Jesuits ; and he not ba¥ -
wjg bei.-u fid much Ji^ a nuviee, I know not
how, if ht^ had been here, he could but e been
pretient at it.
L, C, J. He layse, that there used to be a
triennial congregation for tlie bustness of
the society, but you could not be present at it,
beeause ynu haci not been 16 years a Jesuit*
Otrrard. * Aim. deciuio octavo currenie,* is
the word of the Rule.
OuU'i, Pray, my lord, ask bim thisqueation,
How he knfiwi» that to be tbe Rule ?
Gtrrarff. You or any man may read them
in tbeir books,
L. C. X It seems he has read them, and he
■ays you must pass through IB years beibre
you be admitted of the congregation ; and he
Delieves you were not there, for you were not
capable of so much as a noFiceship.
Gates. I desire your lordsbip to ask bim.
Whether or no he beard rae read in tlio Sodality ?
Oerrard, Yes, I did,
Onta, Were you of the Sodality f
Oerrard, Yes, I was.
Oatct. Pray, my lord, ask him, wliat oaths
«re there taken before they be admitted into
tbeS<jdiihty?
L. C. J^ No, by no means, I will not do it.
OaUM. Why, my lord, may not I ask it, to
fhew what kind of nien these are ?
L, C. X No, indec^d, it is but tlie same ques-
tion again, that 1 tu)d you before is^ nut to be
AskeiJ, lor it may make him liable to a penal-
ty » if you come to be a witness, no man
•hould ask you a question that tuight make
you obnoxiousto a penalty i lio more must you
ask tbem any such que<itiona.
Oo^si. 1 bvt dona witb him> my lord.
Sol. Gen. Where is my loH OfnvA tf
Brnniley f^Lord Oerrmd. |lcf« lAiii,8ir.
Alt. Gen, Pray, my lord, do you rnnanlv
Mr. Gates at St. Oilers in tbe year IfiH ari
16T8?
Lord G error d. He was di^iiised b
habit, and another oolottred peniwi^, the
was blacker than that be has od oow ; bol I
tnember his face very well, au4 kaow hiia
by the tone of bisroice, wbich waa TCfy
able i but I never remember tb«l beiv»dbiaft
from Ht, Omem after be came tbUber. 1 t^
memWrhis coming exactly, wbicbwaaakM
Christmas ; nor did I ever bear tbftt be wm
absent till June 1676, New^ t»tile, when bt nm
away*
$ul. Gen. Do you remenkber, my lord, via
Mr. Burnaby camej
Lord Gerrard, 1 6a refnembsr Mr. Ir
naby's coming, but wbal liine it m% I CBi
ejtacUy tell.
L. C, J. J a my lord Gerrftrd swoni f
Sol. Gen, I think so.
Lord Gerrard, No, iny lord, I am
L. C, /. You must be sworn,
[Which was done.] Now if you b«
tu ask my lord any qut^stloiis, cfa.
Itt, Gen. My lord, we desire to I ^
lord Gerrard ol' Bromley , wbetber be kwa»
Gates at St. Omers ?
Lord Gerrard. My lord, I rememhff b
came in 1677, as I take it, it waa tbe
of December; and never heard bewaa
missed tiU June 1678, I rwieiiiber
larly upon tbe 25th of March, ibere
Lector to be re^er of the Modality i
Gates desirioj^ it, he was appointed lo
was tlierc my sell, and 1 never miaaed bM|
heard bim reail, that I do remenibcr,
Sundays and Holidays, and never ka^
ab^nt any one : howerer for fire or
he w as constant at teadiog ; aod I caa
ler remember it, because he bad
cant in his tooe^ which all mea may kaov,'
ever courersed with him.
SoL Gen. If IHtea please to msk my M
Gerrard any questions, he may.
Lord Gerrard. Pray, my lord, l0t nitlf«t
a word or two more.
L, C. J. Ay, my lord, pray ^ on.
Lord Gerrard. i rememoer I heard Sr.
Gates was at tbe oonHrmadon, wbkb wai^
St. Augustia^s day ; there waa a oonfinMlHi
by a Catholic bi&nop, about the 26Ui oC Wjt
Nevr Stile ; I remember I heard Mr. Oslai
was there^ and the bishop did particularly 00**
him as a iter^on of elder years tbaa tbe f0t d
tbe bludents.
L C. J. Do you know tlM% my lard» of pv
own knowledge ^
Lord Gerrard. I do, my lord,
L. C. J. Because you iky ycm heard it»
lioid Gerrard, My lord, f lutber I ^
bcr this, when tbe news of the Ploi b
covered by Oatas, came to Si.
went by the name of SasKfOMi Ijmy*
sometimes Titus Arobrosttis
ST4TET1UALS, i James U. l6U^fi>r Perfurf^.
^ telinlftm thmt knew liiro there, how
^ ■' 1 If'iit to pr^t<?ncl he vras nt
C i oC.^jiril 1678, wheiiftU
r iim every duy irt AjiHl Rntl
^ >, us tmich a*i a man can hn
I ■ ' ■ -^ never kiio>vti to be
t' , hpsides, my lonJ,
I. ,4 J, ^. ^ ..^...,.j .iuted as a thiiigf crfn
jao scholar goes away from, or comt?s
pilc^ofHt. Ornery, hul ii u jMirhcuJurly
b the whole house ; it is the cotiimon
id (lificour^e ns much as a uy new oc*
» are here about the town.
hn. ir 0«tea be pleased to i^k hitn
lliotis, tie may.
k My lord, I deaire (his noUle loiil
Hked a question or two ; 1 do not re-
illialonbiitp there*
Cerrard, I do very well rememher
i by tmrticolar retnarks,
, Yes, my lord, you hnre occasion to
icr me, anj so have your whole party,
ny lord, let my lord Gerrard be a»kt*d,
ime his lordship went by at8t. Omers?
t^errard, Mr. Oates^ I aoi not difti-
Bilio^ the Dame I went by there. It
rei.
I I*nnri roy lord, I desire to know
Irion £is lordihtp is of?
werrerd. Neither am I ashamed to
f«li||fioci, Mr. Oates; I am a Cathofic.
Ptay* i»y lord» if you pleate^ be-
im noble lord pretenils he lieard tne
desire to know of him, Whether be
\te Soilality ?
Gtrrard, I remember yoq partieu-
your voice, and that is one Khnx^ that
irly bringn you to my remembrance
. Pray nsk thi^ noble ford, if he was
I at the Jesuits Trial ?
litrrard. No, 1 was never a witness in
^fore: by the oaifi that I have taken.
•/. ll in very well, my lord.
Pray my lord, ask this nolileman,
r he did not know of a consult in April
pd from whom he knew it ?
perrard. No, I know of iWMie, nor
by rumour, after that you
ircr auch a thing'.
lordship see me every day,
^?
wrrard* t cannot fay every day ;
blm at the Refectory pfencrally,
l.*>r it n :.! tjcularly, because he sat
b> 1 believe h«? could not
U^' ^ Mg missed, becau9« we
^ry JF'son ti*at came in and went out.
'^rt. Then swear Mr, Samuel Monfan.
[Which was done,]
len. Mr. Morgan, were you at St.
ia77, and 1078-/
i, I was, my lord,
hn. Did yoii observe Mr. Dates to
bme ? — Morgan, Yes, I did.
Prmy give an ac««»ttnt when he
htweaiawty?
[lias
He cume 14 or 15 days before
B 1 remember, and went away in
' Chriittiua!«, a
J uiu*.
Aft, Gtn, What Christmas do you met
Mr. Morgan?
Christmas 1677.
And when did he go away?
In June 1678, he went away.
Was he absfnt any time during
JtL Gfn.
Mm gun.
Alt. Gen
tliat Kpace ?
Alortran
My lord, 1 know jiot that be wa^
ever absent above one night in all that time.
Att. Otn. What time was that one nighlF
Morgan, Truly, my lord, I oannot tell,
what month it was very exactly.
Att, Gen. W hither was he gxine that night f
Morgan, He went to Waltoo, three milei
off ii-oni Hi. Orners.
Alt, Gen. Do you remember the time when
Mr. Hilsley came away, and when Mr. Bur-
naby came to ttt. Omers ?
Slorgan, Y'ea, 1 do, my lord, very well.
Sot, Gtn. Was Mr. Oates there when Hd-
sley went away ?
Morgan. He was there then.
Soi, Gen, Was be there when Mr, Bumaby
camef
Morgan. He was there when Mr, Bumaby
camL* thither,
Soi, OcH, Was he there when Mr. Pool
came away f
Mar gun Yes> my lord^ be was so.
&//. Gen, I nil I ask you this short questionj
do you birlieve in your cou&cience ihat he wa~
absent »ny particular time all that vvh'le?
Morgun, No, my lord* 1 huVe no reason '
believe so.
Gates, Pray, my lord, ask hira what relJ|fion
he is of?
Morgan, 1 am of the church of Engfland.
Dotes. When were you reconciled to thf
church of England?
Morgan. Five years since.
Gate*. I desire to know of him, what induced
him to be reconciled to the Church of Eng-
land ?
L. C, J. This is not a pertinent quesdoA,
nor fit to be askeil. Is he to give account of
his faith here ?
Just. Wit him. It seems Mr. Oates is angty
whi'ti the v^ itiiesses are Papists and when they
are Protestants too.
Gates When uas it that I came to St.
Omers, do you say f
Morgan. You came thither in December
1677.
L. C. X So he told you before ; wliy do you
re]>eat tbin^ over and over again f
Gates. When was it I went away from
thence, say you ? — Morgan. In June 1678.
Sol. Gfn. Do you remerat>ef the 24th of
April Old Stile that year?
Morgan. Yes, my lord, I do remember i|
very well.
Sol. Gen. Do you remember him to be at i
Ornery that day ?
Morgan; \^y\ do^Xi^ i^i^^sv^soaiiiiA^m^
STATE TRIALS. 1 Jam u II. 1685.— IHa/ of TUtu Oetet, [11)»
Sol. Gen, Ay, pray tell my lord and the
jury that circumsUuice, hoviP you come tore-
member it.
Morgan, We bad the Trial of Ireland
broHjrht over to us soon after it was printed,
and there we found mentioned, that Mr. Gates
iiad deposed, that the 124th of April 1678, there
was a consult of the Jesuits, and they met at
the White Horse taFem, where they resolved
to kill the king, and he carried that Kesolution
from chamber to chamber, and he did nomi-
nate the day ; and having^ it then fresh in my
memory, though he swore that he was the 24tn
of April QJd Stile in London at that Consult,
yet I fbuod him to be at St. Oraers by a parti-
cular ohvumstance. My lord, I was playing
at ball that day, and struck it over into a court,
into which I coald not get over myi»elf, but I
saw Mr. Oates then walking in the court, and
I came and borrowed his key, and so went in,
and there passed between us words of friend-
ship,
ir X. C J. When was this, do you say ?
Morgan. The 24th of April 167S, Old Stile.
Oates. 1 desire to let his orders be seen.
X. C^ J. No, he shall not be put to shew any
such thing.
Oates. He is a minister of the church of
£i^land, my lord.
X. C. J. Sir, we tell you we will not do it ;
what ado is here with your impertinent ques-
tions ? Have not I told you, you shall not en-
snare the witnesses ?
Oates. He was going to pull out his orders
himself.
Att. Gen. My lord, Mr. Oates may see them
if he will, he is a beneficed minister of the
church of £ngland.
L. C. J. Does he mean those orders ?
Att. Gen. Yes, he docs, and liere they are.
L. C. J. Let him see llicm. [Which was
done.]
Gates. My lord, I desire to know of this
gentleman, w hat name he ve^it by at8t. Omeib?
Morgan, By the name of Mori^an.
Sol. Gen. Swear 3Ir. Arundei. [Which
Was done. J
Att. Gtn. Pray, Sir, will you ffive an ac-
count in short, whether yf.u were at St. Omers
in 167 r and 1678, and the time whfn Oates
came thither, and when ho went a\^ny ?
Aruudcl. I was tliercwlicn Dr. Oates came,
and wlien lie went away.
j1</. tit/i. When was that?
Arundel. Sir, 1 cannot be positive to the time
exactly, but I think it was about January 1677,
that he came there, and lie went away about
June 1678. 1 cannot be positive to the time
exactly.
L. C. J. He does not particularly remember
the time, but he thinks it was about January
1677, he came thither.
Arundel. I beg your lordship's pardon, he
came there about December.
Att. Gen. Do you remember any particular
eircumstances, that you saw him there any
futiewi%r tiioe ?
. Arundel. Upon St. Aogustiii'f day I a«
him confirmed.
Sol. Gen. What day is that ?
Arundel. The 26th of Alay, according to the
foreign account.
X. C. J. Did you know bim there then?
ArundeL^ Yes, my lord, I say 1 saw bin
oonfinned.
Sol. Gen. Do you remember Mr. Hilsley'i
going away P
Arundei. I do not remember the time parti-
cularly, but I do remember Mr. Oates wasac-
tuallythere then. .
Sol. Gen. Do you remember when Mr. Bw^
naby came to St. Omers ?
Arundel. No, 1 do not remember the time,
but he was there then too.
Sol. Gen. Do yon remember when Mr. Pool
went away ?
Arundel. No, I cannot tell what day it vm^
but he was there at the time of his goingam,
upon my oatii.
Sol. Gen. Can you teU^a^ other paitieuhr
time?
Arundel. The 11th of May New Stile, tbcre
was an action exhibited in the college.
X. C. J. Was Oates there then ?
Arundel. To the best of my rememhranre
he was.
X. C. X He does not affirm any particulir,
but only speaks in genccai.
Oates. Arc you a I*rotesfant too, Sir ?
Arundel. Ko, doctor, 1 am not.
Oates. Pray, my lonl, I desire to knowwhit
religion he is of?
Arundel. I am a Papist, my lord.
Oates. Pray ask him, by %%iiatnaroebewtil
at St. Omers?
Arundel. I believe you know that as wdlii
1, Dr. Oates.
X. C. J. You must answer his question.
Arundel. I weut by the name ot JS|J€IKW,
my lord.
Gates. I do remember him, my lord, to have
been there.
Arundel. Sir, your humble servant.
Oates. It is almost seven years ag«), my lofi
and I may not so well remeuiber them as-tlMy
do me ; but 1 desire to know when he weatu
St. Omers lirst, aud how long be was there?
Arundel. I was there seven years.
Oates. Pray, my lord, ask him, fihetiierbt
was of the S^niality ?
Arundel. Yes, my lord, I was.
L. C. X Was he reader of the Sodality?
Arundel. Yes, my lord, in my time be ««
reader.
Oatesi Then, my lord, 1 desire to askbiiB,
whether he ever beard of a consuh of tb«
Jesuits, that was to be held in England, io AfAil
1678, and from whom he heard it ?
Arundel. Yes, my lord, 1 did bear in ifc«
college of a congregation.
Sul.Gen. Was that an extraordinary one, or
of course ?
Arundel. It was only of course, tf ^
told us; once in three yean they ban oM-
STATETRIALS, 1 JamesILi685,— /orPrr/Kry. [1130.
or latter end of March ; I cannot justly sweax
wliich it wai.
Mr. Moiloy. Did he read od Holidays q
well as Sundays? — Tarbcrvih* Yes, he did*
Oaiei, 1 nm5ttask this gcmlefuun oue ques-l
tJon, if your lordship please^ and that is this,
what name he went by at St. Omers ?
TurUrviic, 1 went tl»ere by the name of
Farmer.
OaUs. Pray you, my lord, ask bim what
fs. Pray, my lord, be pleased to ask this
ieiDao, wbat studies he followed at St.
C J. He was of the Sodality, he says.
rundcL My lord, I studied to the end of
ric.
i«. My lord, I desire to know whether
!n lie came thjfn St. Oiners, he did come
ly for ]£nglD[id ?
undcL No, 1 went from tkeuc« to Paris,
brd.
Gen. Swear Mr. Christopher Turber-
[Which was done,]
it, Cf«. Pray, Mr. Tarbervile, will you
lOaJttt iiiy lord amlllieJiiry whether you
■e with Mr, Oatt^s at St. Omers, and
u?
^^urberviic. Yes, ray lord ; he went by the
II »» af Smnpsun Lucy there, mud there! saw
, and tbt^re I was with liiiu all llie tune ; I
there before hiro, and 1 remained there
he went awa3\
It. Gert. What time did he come to St.
lers, I pray you ?
uiitcrvUe, Before Christmas.
.C,J. VYhatyear?
Wtervile. Li the yi*ar I6f 7.
\it. Gen, W bat time was it he went away ?
urhemile. In June 1678.
i. C.J. Were you there all that while at
St. Omers P^riiritTTJt/t;. Yes» 1 was.
X. C, J, And to the bcBt of your ai*[>reben-
fiion, you tbink he was there all that wuile ?
TurbervUe, Yes, I do so, my lord.
Soi. Gen. Can you speak of any paiticular
^mjs you can re mem Iter ?
^mpTurbervtie, Yes, I do remember him upon
Hb fourth, fifth, and sixth of jVJay, for two or
three ilayi together ; fur, my lord, I do re-
niember this circumstance : 'Mr. Pool alMiut
that time went away, and tiiat very day Mr.
Pool went from the college, I cliaiif^i^d my
lod^ngand wt^ntinto his lud^in^f, and that day
I taw l>r. Oates in tbc uhambtr, and by the
chaniber-door.
Ati. Gen. Did he continue in the oollejfe
froni the time he came about Chriiitmas, to the
time he v»ent away iu June ?
lurlfervik. Yes, he did all the while» except
il were one night in January, when he went to
Wation.
i* C. /. What timq in June did be go away ?
Turberviie. I am not positiie, but I am
morally sure he went away the Sdd of June,
fts near as I can rememljer.
. 04i#et. I Wis there iu June, that is Tery well
lifiown.
I^ C. /. What do you rememW of his
leading in tl^c college ?
. TkrbcrciU^ I do remember he was reader
lliere on Sundays and holidays for a great
while ; I cannot swear upon whai JSunday he
began, hut he left off the Sunday before he went
away,
L. C' J. As near as you can remember,
Yfhen did be bcgpn U^ read ?
, Ifurbtrwiit, U was the beginning of April,
religion he is of?
Turbetuik* It is a bard question to answa
that. 1 1
Oat€9. Nay, xny lord, I desire to know whall
is his religion ?
TurbcrviU, I am, my lord, a Roman Ca
Iholic.
Oa^fj. Ask him when he went to St. Onu±ri']
firiil, and how long he Kiaid there ?
TurbcrviU. I was there seven yeara JtvfA
near.
Dates. I desire to kno>v whether \w did come|
away directly to England j when be came tiro a
St, Omers?
Turbtrvih, No, my lord, I went into Italy J
Ontu. Pmy you, my lord, I desire to know
wli ether he did go to Rome ?
L. C, X What if be did, whsil then ? tha
is not all to the purpose, he went into Italy.
Oatfi. l^ray, my lonl, be pleased to ask Idoi
this que<*tiou turtlu r, was tie a witness on th^^
beliHJf uf the five Jesuits, or of Langbom
then- Trials?
Tarbtrvik. No, my lord, I was not.
Outts. Fray, my lord, be [deased to Oi^k him
then» what rev«ard he lias been promised,
is to bafefor gifing this evidence ?
Ttirbtrvtk. None at all, my lord.
Outts. Pray, my lord, ask him, whether ot|
no he heard of any consult of the Jesuits ii
April 1078, and from whom ?
Turbcrvik. There was a cougre^tion, i
heard, but I do not remember iliat any of the
father!^ went from the ndleiie lu it ; several
came by there, and lodged there as they went,
and as they eame bjick.
Ofitrit. Fray, my lord, ask him how he came^^-^
here to be a witness* in this cauFc ? s V^H
l^trbtrvik, i was subposnaed. -''
Oatts. Who sservcil the subpcena upon him ?
TurbtTTtk. The mana;Ter3; it was sent to
rae by the king's counsel, I suppose ; a man
brought it to me,
L. C. J. 1 1 is no matter who brought it yoOj
you were subpcenaed, thai is enough.
Soi. Gen, Swear Mr Anthony Turbervile
[Which was done,]
An, Gen. Were you at St, Omera in IBfr
and lfi78 ?
A. Turbervik. Yes, my lord, 1 was.
Ait. Gen. Did you obsen'c the defendont
Mr. Oaies there at ibat time ?
A, Turhervtk. Yes, I obwrved bim all the
while he was there,
Alt, Gen, When did he come to St. Omers .^
A. Turbervik. In the year 1677, about
Cbristmajs* .
I
j
1 131 J STATE TRIALS, 1 James U. i£65.— 7rt«/ o/ TUm (hiu. f lUI
Att, Gen, When went he av^ayf
il. Turbervile. A gentleman who waa for-
merly sworn, (Mr. Tliomton) and I were at
breakfest with him the aelf-same time when he
went away.
X. C. /. When was that ? ^
A» Tarhervile. I suppose about the' latter
end of June 1678.
Att. Gen, Did you observe him to be there
in April or May 1078?
A* Turbervile, lie was not absent above one
.night in January that I can remember from his
first coming thither, for it was impossible he
should be absent and not miss'd, he sitting at a
distinct table by himself, and his conversation
li^ng so remarkable for a great many ridicu-
lous actions, and great many pretty jests that
he used ; so that he was like a silly nerson, as
I may call him, that used to make sport,
and nobody could be missd so soon as he:
And 1 saw ^ little boy in the college beat him
up and down with a fox's tail. Indeed, my
Jord, all his actions were, very remarkable: I
saw him very much abusive to persons that
liv'd with him in the college ; ami Mr. Oates
could not be a person of this note, but all the
world must take notice of him, and all tbat
knew him must miss him, if he were away.
L, C, J. You hear him, Mr. Oates ; be
gives you a particular character ; he says you
were a very notorious person in many in-
stances.
A, Turheroile. My lord, I was a person tlien
the youngest in the whole company, and Mr.
Oates being very abusive to me, 1 did what
became me to right myself upon him.
Oates, Pray, my lord, be pleased to ask this
gentleman what the name was he went by at
St. Omers?
A. Turbervile. By my grandmother's name,
which was Farmer.
L. C, J. Do you remember the time when
Mr* Hilsley went away from St. Omers.
A, Turbervile, He went away upon a Sun-
day. Mr. Oates remained afteiwards there:
I am positive I saw him several days after.
L. C. J. Do you remember when Mr. Bur-
naby came thiilier.
A. Turbervile. Yes, my lord, and Mr. Oates
was there then.
L. C. J. Will you ask him any questions?
If you are not ready, ( will ask him some for
you. Come, what religion are you of?
A, Turbervile, I am a Roman Catholick,
my lord.
*L. C. J. Well, and how long were you at
St. Omers ?
A. Turbervile. Six years and upward, my lord.
L. C, J, W hen you came away (Vom thence,
did YOU come directly for England ?
A. Turbervile, 1 took a circumference
round. ' '
Oates, My lord, I do find my defence is
under a very great prejudice.
L,C.J. Why so? Because we won't let
jon ask impertinent questions) or such as may
reader tb^ witaemmi ohnoziooi t» a peealiy.
Oates. No, my lord, it boot fit they iMU,
for there is a turn to be lerved.
X. C. J, What do ^ou mean by Ihal? Ay,
and a good turn too, if these witnenes
true : It is to brin^ troth to light, and
villains fo condign punishoient.
Oates, Good my lord, be pleased loheirae.
L, C, J. If you behave not younelf widi
that res|>ect to the court as you ought, pny
get you gone. Do you think yon Mali gifa
such language as this in a court of jostioer
Oates, My lord, I did not deaigD
L. C, J, If you behave yoursdf as jot
should, you shall have all due regard ; bat H
you fly out into such abusive extravagaada^
we'll calm you as you ought to becalnied.
Oates. I would vindicate myself, I mcMt it
not of the court.
L. C. J, So you had need. Don't thbk we
sit here to let you asperse the instioe sf tbe
court and' of the nation, as if the judges mk
here to serve a turn.
Oates, 1 say, these men do oome to sens a
turn ; but I laid no aspersion upon the coHt,
nor meant it of them.
L. C, J. Behave yourself as you 0Qg1it,si4
you shall be heard with all the iaimeM caa te
desired.
Oates, I did perceive your lordship tad dn
court made yourselves pleasant with my fan-.
tions.
L, C. J. I did not make myself pkiMt
with your questions, hot when yoo ask impv-
tinent ones you must be corrected: YoaM
we do the same thing with them ; I find M
with nothing but what is not to the porposf.
Oates. My lord, I desire it may be dostfnl,
tbat these men that come now, are the ane
witnesses tliat appeared at the Old Bailey, sstf
were not believed there.
L. C. J. Observe what you will by andlrj.
Att, Gen, No, they are other men, but tbey
bear the same testimony indeed.
Sol. Gen. Swear Mr. Clavering. [Which
was done.]
Att. Gen. Come, Sir, I'll ask you a s\Mi
question; were vou at St. Omers with Mr.
Oates, and whienr
Clavering. Yes, I was ; I came the lOtbif
Decemlier 1677, to St. Omers ; he told me be
came thither that day too, and 1 lived there il
the time that he was there, which was till t»«
wards the middle of summer : I do not re-
member tbat he ever was absent^ but ones it
Watton.
Att, Gen. Do ypM remember Mr. Baraahy'i
coming thither ?
Clavering. Mr> Oates was there when Mr.
Burnaby came there.
Sol. Gen, Was he there when Pod ewe
away ?
Clavering, He was there when Mr. Vfd
went away, and likewise I remember hbkiif
there at the time of the congregation.
Att. Gen, Pray, tell the circunstaiiee boa
you know he was there then f
Clavering. Tfatera came a {
STATE TRIALS, 1 JaUes IL i68S.— ybf Pajnrlf.
irtd a dnrity of the gtiulents, and I
pmon that made the cottection for him
owe ; and I remember be did ask, if
w anyone that was a student there that
Bin8|iain? We told him there was
I described him ; upott which he knew
leman in Spain. Upon tliat I told Mr.
bat there was one there that knew him,
deoy'd to come and speak with him.
cmember that it was the time of the
vtion, for some made enquiry why he
ttle money at Watton, and it was saki
ecanse the iathen were gone to the
[ation in England. And he asked me
arly, what wsi^ done at th^ congreg^-
Swiand?
JT Did Gates ask that qnestionf
Ttn^Yes, my k>rd, be did.
. J. n hom did he ask it off
in'ii^. Of me.
.J. When was that?
Ttn^. I thmk it was about the tiikie of
ipre^itkm.
J. How came he to enquire after it ?
srtiif. I was taUdnff with him, and said
e^ 'Know you nottiing what the bosi-
Int they are to do at the congpregation V
' Mr. Lucy, I know not what they do ;
■ot ranch : for I hear at those meet-
loy times they stay an hour or two, and
ne when they have chosen their pro-
And yoa belie?e he was there all
'eii<
If
wmg. Yes, my lord, I do believe it.
t. Kay, my lord, let me ask him a
I or two.
./. Ay, what you will.
K. Wliat religion is this gentleman of?
srtiig. I am a Catholic.
I* A Roman Catholic you mean, I
I?
tnmg. Yes, J always undestood it so,
I. My lord, I desire to know bow he
tito be produced at the Jesuits Trial, to
ii evidence he gives now ?
fffiy. I cangtve'a Terjr good reason
I s iwas then, my lord, in Germany.
• X That is reason good enough or all
IRCItaf. That was a new question, and
[WWch
v«a aitiiftctory answer, I ttiink.
0if a. Swear Mr. John Copley.
OtM. Were yoa at St. Omers in 1677
IBf— Cop/e)f. Yes, I was.
Gaa. Was Gates there then?
lev. I kaw him all the time be was^bere.
(Ma. When did he come thither ?
!gr. Ha came a little before Christmas,
Mrafnrr remembrance.
Oaa. Wmd went he away?
!bk In lora.
Smu Im i&mk month in 167&?
bf. la Jtna 1678.
Am Waa kaabeent any pari of that
[1134
I was there, and he was there too.
en. Was he absent any part of tiie
time from Christmas to June ?
Copley, Nay, I am sure he was there all tha
time, except that night he was absent at Wat-
ton, and that was in January.
Oata, Pray, my lord, ask him what religion
he is of?
Copley. Does your lordship ask me that
question ?
X. C. J. Yes, I do. ask you ; Mr. Gatea
would know it.
Copley, I am a Roman Catholic, my lord.
SoL Gen. Swear Mr. Cook. [Which was
done.]
Ait. Gen. Did you know Mr. Gates at St.
Gmers, and when?
Cook. He came there a little before Christ*
mas, 1677.
Ait. Gen. How came you to know him
there? — Cook. I lived in the house then.
Att. Gen. Was he thece all April and May P
Cook. Yes, he was there till the latter end of
June.
Att. Gen. Did you seeibim every day ?
CooA;. Yes, 1 did.
Att. Gen. Canyon tell any particular time ?
Cook. I am positive he was there the SOth
of April.
Att. Gen. What Stile ?--Cooifc. New Stile.
£. C. J. How do you know he was there
then?
Cook. It is a remarkable time ; there b a
procession that they keep there on that day
from the Sodality to the church, and I saw him
go among the rest at the latter end among dha
rhetoricians.
X. C. J. What say you, was he .there an
that day Mr. Hilsley went away ?
Cook. I do not remember that.
X. C. J. Do 3ron remember Bomaby ?
Cook. I was there when Mr. Bumaby went
away.
X. C. J. But whsn he came was Gates
there?
Cook. I cannot speak particulariy to that
Att. Gen, What was your place in the Col*
IjBge?
Sol. Gen. My lord, he is a Lay-man, ba sura.
Cook. 1 was a servant in the house.
Oatei. In what place do you serve ?
Cook. I was a taylor.
Oatet. 1 do not remember him.
Cook. But I remember you.
Sol. Gm. Swear Jo. Wright, esq. [Whidk
was done.]
Att. Gen. Do you remember Gales at 81:
OmersY'-Wright. Yes, I do.
Att. Gen. When was it ?
Wright. The winter before the notice of IIm
plot was.
Att. Gen. What year was it in?
Wright. In the year 1677.
Att, Gen. What month in that year did ha
come thither?
Wright. Icannottell^ilwaa'iroDtat^
Att. Gen. Y7b«k^3ul>tta^«m:^^
1135] STATE TRIALS, \3KMESlLl6B5.^TrM of TiiutOaet, [1130
WrigkL He went away in summer, I cannot
tell just tbe time. •
' Att. Oen. Was he absent at any time, from
his coming in winter to his goiug away in
summer P
Wright. The scholars said he was once at a
place called Watton.
£. C. J. Come, this says nothing to the
purpose.
SoL Gen. My lord, we leave it here.
X. C. J. What say you to it then, Mr.
Gates? ■' '
Oata, Has Mr. Attorney done ?
Att, Gen. Yes, we have done tor the present.
L. C. J. Then are you to make your de-
fence.
' Oates. My lord, here is an Indictment
brought agaiDst me tor Perjury ; and this In-
dictment sets forth, ' That I should, upon the
* ITth of December, appear at the Old Bailey,
' and there swear, That there was a treasonable
* consult of the Jesuits met at the White-Horse
' Tarem in the Strand, and tliat this treasonable
* consult did divide itself into lesser companies
' and meetings, and that I carried about a cer-
' tain resolution, which the Jesuits came to/
* concerning killing the king, from chamber to
* chamber to be signed.' My lord, I have a
great exception to make to this Indictment,
and that is, my lord, as to the form. For, by
your lordship's favour, I think the peijury is
not well assigned, and according as I am ad-
▼ised, I offer this to your lordsliip's consider-
tion. It says in the assignment of the perjury,
* Ubi revera et in facto prtedictns Titus Oates
* non pnesens fuit ad aliquam Consultationem
* Jesuitarum apud le White- Horse Tavern
* prcedict' in le Strand, in Com' Midd' prrcdict',
* super vicesimum quartum dicra April', anno
* Dom' Millicesimo.'
L, C. J. How, * Millicesimo !'
Oates. M}' lord, it is Law Latin : I suppose
it may sen e in a court ?
Z. C J. No, it is true Latin there.
Oates. I cannot tell how to read it better.
L. C. J. 1 do believe that.
Oates. It is written in such a hand, I cannot
read it ; but the substance of it is, it says here,
That I did not carry any resolution from cham-
ber to chamber signand. Now the evidence
charged upon me to be given, is, that I did
not see it signaV : so that the assignment of the
perjury does not pursue the Oath, as it is set
forth ; for if it be sii!niU^ in the evidence that
tvas Gfiven, it ought to be signai^ in the tteijury
ttiat is assigned ; and I humbly crave tlic opi-
nion of your lordship and the^ court upon this
point.
L. C. J. Lo(»k you, Mr. Oates, that you of-
fered before, and 1 j^avc this answer, which I
must now repeat, lliat now we are upon ihe
fact, and this exception will be saied to you for
its proper time, if 3 ou be convicted. It is not
proper now ; but sup|>ose there were that thing
which you say is an objection, yet you must
if now, tliat there are two perjuries that are as-
Mig-ii&i ; the one is upon th« first \tan of ^ouv
oath, which was, that you were present at a
consult of the Jesuits the 24th of April, ](»7S,
at the White-Horse IViveru in the StniMi;
* Ubi reveroy* yon were not there. Now, da
you admit in the lirst place, that you weKftr-
sworn in that particular ?
Oates. No, my lord, I do not.
L. C. J. If tbe Jury find tliat you were for-
sworn in that first point, that you were aot
there, it will be easily t>elieved you swort&ise
in tbe other point, that yon did not cany ibe
resolution from chamber to chamber.
Oates. But, my lord, it is not well assigned, I
think.
L. C. J. That will be saved to you afUr Iki
verdict, I tell you, if there be occaskm ftr it
Oates. My lord, I suppose the proof oofk
to be accordm^ to tbe record, and the mart
makes the perjury differ from the oath.
L. C. J. I tell you, that is to the fbnii,ad
that will be savtd^o you after tbe venfietaM
way or the other.
Gates. Then will your lordship be pkaai
to consider there was a record brougk is,
which is almost the same with that J tmla
offer to be read, on my behalf, and wfaiob iitbc
first proof that I have to offer of the ooMk
that was held in Ijondon, in April 1678. Aail
desire BIr. Pcrcivile may be called, 1 tbf|^lui
christian name, and &Lr. Vaugkan who it my
solicitor: but pra}', my lord; let me fimkni
the opinion of^ the court, whether tbej 4tf
prove the words that I am add to svHr,ai
they ^re laid in the indictment.
L. C. J. Yes, very fully, we think so; hi
the Jury are to try^hat; that is a pointif
fact: but if you will, ynn shall have «tf
thoughts about it ; we think they are falh
prove<l.
Cri/er. Here is Mr. Percivile.
Oatn. Pray swear him. [Which was done:]
L. C. J. \i''hat do you ask him 1'
Oates. Mr. Percivifo, you oxainined thecal-
viction of Mr. Ireland, pray put it in: if ill
tnie copy ? — Percivile. \esi, it is.
Oatts. My lord, I desire that a Conncli*
and Attainder of Mr. Ireland may be wad.
Att. Gen. It has been read already.
Oates. My lord, 1 will not lake up thecovA
time any more tlian is necessary lor id}* d^
fence.
L. C. J. N ay , do as y< lu w ill , as long «s }ii
offer things pertinent and degent, the rouitvi
hear you \«ith all patience, and you may take
what time is necessary for you.
Oatta. I thank your lordf^hip : I designed Ba-
thing at all of reflection upon the cnurt, hull
refloctiun on the witnesses that came in agaia^
inc. .
C7. ofCr. Tills is a copy of the saincitcanl
that \»as l)(tbiL' i-ead.
Gales. We!i, if that be allowctl for cvitleoff
for ine, I am contented tu sjiare the time of tkt
court, not to i*ead it again ; but, my UntJ, 1 9§s
this, and dcsii-e to have couusel assigned ne I*
argue this i>oint in law ; that is, Whether cr^
the Convictions ond Attaindan of Irv*
StAtETllIALS. t JAtfSsll. 1685.— /or Perjury.
[113S
ttA^ and the rest of them, of a treason-
suit of the *2 nil of April 1578, where it
jveiJ lo tntirj|«*r the late kiof^, ought not
Icennsasurr^ ■ ' il p root* of the fact,
Hiff as those reraaia of foroe?
tvlrther the aveniMin of that boinfif false, is
19 be received against tbo^e reconis ?
X* C / There is uo difficulty in that at all
a the world, Mr, Oat*^s.
O^itci. My tord* 1 do not knoxv the law, and
*»re 1 prij^' I may haf^e cauuftel ftssig-ned
_ il« that noipt,
"C. J. Tiiene is no <^iiestion in it* God
' ^if a verdict l*c obtain wl by peijury, that
ilkt should protect the perjuied party
etng prosecuted for his false oatli.
vtrere no justice in tliat ; nor is it an
Riait asraiQat a record, for this is not a writ
or in fact that will reverse it, but the re-
[ ficniains a good record and unim peached
' it ihougli it be a good reconl, yet it iB
» say U\\s verdict was obtained upon the
iy of such ail one, that forswore himself
fcestimooy, and for that particular per-
' tjiay iurelv he pritsecuted,
uitt. \i not that attainder an uncontroul-
[ CYtdeuce of the fact, till it be reversed ?
C, J. Yes, it is iwrainst the party at-
liut if that attainder was fouuded upon
that was obtained by perjury, God
t be should be told so that did perjure
, Weill tny lord, if your lordship rules
law, then I will ^ on \ and I must
' ob««Tv«* to the jury m the opening" the
^'- igs. tirstj That the indict-
i%xi I [rclaiid was tried, was found
ot Utcember 1678» and on the 17th
nber, the next day, Ireland was tried
lid Ba&ley ; and then T tind this indict*
broiiglit against me for perjury » is foutKl
►Id- Bailey six years after the fact, by
|<iQm mission* Now, 1 submit it to your
fa and the jury's consideration, why
atmeiit and the finding of this bill for
'lias been so loti^ delayed, since it ap-
^ tice, tliat the witrtcbses that
K-\\ to prove the perjury, were
. of the five Jesuits, or might
red then ; and though they
'-raons, yet they uU bear
lit was ' then oJfe j ed, b ut
Utcd i iuid I hope when my evi^
J they will have the same repu-
kin jury that ihey had with those
lord, [ HMKi ucquaint your lord-
' ^ • '' r.dictment
.ed, Mr.
t rgopart
»y of the
' ag;«iust
[t! .against
I^theu upon nu intntfuc* as your
'' rruir*mtjcr) my lord chid* justice
' ft of the court,
iiitchrcad and
Mr. Fen wick, and remanded tfiero U> prison«J
which Mr. Whitebread six months afler did re^J
mark to the court, and urafetl it as a plea f»it I
himself to he discharged; nut that being ovep»|
ruled by the courts be was trie<l. Now, bAi
had six months time to provide himself witdi
new fresh evidence to asjHJi'Sfc me> and to eo-*!
deavour to falsify that testimony I gave tul
against Wiitebread and Fen wick, when Ire-
laud wa« tried, and ho he knew wl^ '♦ '» ^» '^i
I must further observe to you, m\ <l [
geotltnuen of ilie jurvi Tliat my im yJ
hard, that siuce the substance df vay testimonW
was with credit reccivedi and the jury upon
convicting them wert^ acquainted | ** That iheV'
hod found an unexceptionable verdict % that all
the objections against the evidence were then
fully answered ; that there was nothing that
the^ prisoners had been wantirjg iu to objeetn J
wbicn coulil be objected; and ihai the thiii^l
was as clear as the sun.'* And vet afiej' siS|
years time, 1 must come to be cafleil to an
count for perjury in my testimony of that part
of the Popish Plot, with which tlie king and
kingdom, four successive uiirliuments, all thd
judges of the land, and three juries, were an
well satisfied. 1 shall therefore offer to your
lordship and the jury's consideration the una-
nimous V'otcs of thrive Houses of Cooimons; I
shall offer the Proceedings of the Hotuie of
Lords, that is the highest judicature in the
kingdom; I shall prove what I have opened
by the testimony of several noblemeu that are
here, who will testify this for me. 3Iy lord, I
shall prove, that several attempts haie been
made to baiDe this testimony, ai thnt of the
murder of sir Edroundbury Godfrey, who took
my depositions, the contrivance of f^aine. Fans-
well, and ThonifRion, maile in the year 1681
or 1682, 1 forget which \ I shall then product
Evidence that I was actually here in town at
the time in question ; and then upon the wholo
I shall submit it to your hird^hip and the jury«
But to prepare your lordship and (he jury the
better for my evidence, I would again urce thfi
strangeness of this prosecution, ami the bard-*
ship that is put upon me, to be tried for per-
jury in an evidence given six year* ago, and
formerly very industriously, though not suc-
cessfully, endeavoured to be tiilsitied by six-
teen ISt. Omers youths, that were produced
and examined before all the judges in the king«
dom, and that not only once at Whitebrcad'a
trial, but a second time at Langhoni*t tnaj \
in neither of which would tbe jury believe
them, because of their religion anda ducatton,
and ihe pcrsous und«r whom they were edu*
CiiteJ, who wi*i e men of known ariilice. Th
niy lordt 1 would argue 1hu^ . if ut that tim^r
my evidence were true» it must be tme stilli
for truth is always the same \ ai|d if it were
then true, and 1 can prove it to Ik? tr\*e, it will
be thought a hard thing without all doubt ^
that thifei should be put upon me. I'tu n^ my
lord, I would fain know from my ^^(yi<L^\^sx^%
why thia indkltae;^! q^ ^vy»'^ W% V»*i<vv ^t
ferred so long X W\\\ v\\<^^t v»\VvvH^'a«^ nXv4\ "
41>
du*_^J
eatafl
I
STATE TELILS, I James IL l685.— TVinf ^77f«w Ooia, [UW
DOW to testify Ibts matter, and could tiien liave ' the atlemiit by the 8t* Oiner» wilaemstokift
t>«efi broueht, did oot come before, to justify ovenbrown my cridrtic** - J»it 5»nc*» t ]im st'
At thetriaJs of these persoos what thty noir tacke«l agjiui iti the ^aai* Iroot
•ay, which might liave saved their hves, if of the |H»pish imertrst^ ain • «4 ui|
true, and "had it l>een credited. TheD I shall | popish adversaries, I luu ooatentcci tostaotdtM
«ffer to your lordship what I desire you aud
the jury would pleai>e to observe, that iboug-h
tbe kiug's coim&i'l are iiuw against nie^ yet
they are »l^ a^inst themselves, fur they were
of coiingei for the kiu^ in those cases; parti-
cularly Mr. Solicitor at l^njnrhorn^s Trial, sir
llobeft Hawy er at sir f ieorge \V akeman's Trial ;
thev wer« of counsel before for the truth of my
testirootiy ; tliey are now a^nst it, 1 only
meoUoii that, and pass it over. But this is not
the first attempt that has been made to dis-
credit the testimony of the Popish Plot, as I
fold you before. Now, can it be supposed that
the lore and desire of public ju!»ticc can be the
cause of this attempt to falsify loy evidence
aAer to many trials, iu which it has been ctg-
dited and confirmed ? Can any thing, my lord,
more plainly tend to destroy and sidivert the
methods of justice, to frigtten all witnesses
from heiKeforth from ever iippeariiig to dis-
covet* any conspiracies? And does it not tend
to expose and vilify tlie known undcrstandijug^
and justice of the late king of ever-blessed
memory, to arraign iho wisdom of his privy-
council, hii great and noble [^eps, his loyal
Commons in three successive ijarliaraents, his
twelve judges, and all thi>se several juries that
were upon those trials ? Had nut those juries
sense? Had they nothotiesty? Had thfv no
eooacieiices f And the judges before whom
thosi? conspirators were trie^l, were ihey men
of no justice, nor honour, dot integrity, nor
conscience, nor understanding? Shall those
juries be said to have drawn the innocent hlo<»d
of these men upon their own heads and the
nation? as, if I were peijure^l, it must be in-
nocent blood that was t^bvd upon it.
X. C J* No, no, thai goes a p-eat deal too
far, Mr. Gates : the jury have no phare, nor
the judgfC's neither, in that blood which was
abed by your oath.
Just. \Vithevt, No, that is your own most
certainly, and not theirs.
iJutti. But this, 1 say, makes it most plalD :
the evidance was then true^ and I hope I shall
make it as evidently plain, it is as ti ue now ;
and I do not question, but upon the evidence 1
ahall now mve, both jiositivcand collateral, the
jury will believe toe, and aei|uit me of this foul
accusation. Pray, my lord, bepleaseil to con-
sider, that when the jury hruuj^bt in Ireland
guilty of tbe high treason, of v^hicli he was ac-
cused, and convicted him, Pickerinj^, and
Grove ; says uiy lord chi<?f justice Scrogfgs.
(that thenVftS)'to tbeiu : *' Gen tie men, you
fiave done like very g'ood sulyects, aud w»rv
good Christians, Ujat is, like very good Pro-
te&lants; and now much good may do theit*
with Uieir thirty thousand masses;'^ as f <yhnll
prove he did say. Then 1 insist, in the second
place, that Whitebread*s conviction does re-
uiforce tho courictioa of lrelaod» because of
test with all my heart. And thim^ to \
all, I shtdl shew the court, tbmt it is to vaia fat
the popish [tarty to ex(»ecl ai»d thiali to wipi
their mouths, with Soluinoo^s «vbore^ and wf,
*■ they have done no wickettnesi.* No, 1 qiio-
tiou not but thousands of Protestants in ii«
kingdom are fully i^atistied %ud c^ifiTiocEd if
the truth of the popish plot, all and every ^
of it. Now, my lord, it' you please to gin m
leave to proceed on in niy evidence, 1 tJiallfaff
that these records of cuuviciicm may b« rJi
which are my tirst proof of tlic conf -*^
1 shall then bring witoesses r#r4 jxKt^
make it ap^iear, that what I did svrear
trials was true.
L, C. J. Not to interrupt ^«m in ym\
fence, or the method you will take for t,
would put you upon that which in pro{Kr
you to apply yourself to^ because the qi
now is not, whether there was a ooosuU (
gre^liou of tlie Jesuits here upon the ^Hh
April 1678? but the question that
you is, \vh ether you were prej^ent cU
consult here iu I>ondon the 24th of Apiil
These gentleroeo, scmie of then^, do aa'
was a consult, anil others that %\%py
it, and believe there was such a one,
it was usual to have a trieonial coii[
for some particular purposes : but the
is, whedier you have sufficient proof'
yourself to l>e here on the 9ith of Ap)
at which time it is agreed oit nil boodi
was a conault ?
Oatcs. But will ynur lordship be pi
take notice of the drift of the evidcTii
I hey arc consistent one with another?
gentlemen that have now been sworn
that I was n^t at this consult, do
prove that f ivas at St. Omers : now, to
thi^, I shall not go about to prove that
not then at St. Omcrs, but that I iras actmllf
then, and about that time, Itere in Lowka;
and tlten all that proof that Mr, Attorney 0^
ncral has brought, must be laid aside,
X. C. J. You say w€»ll ; prove that.
Oalts, Now, my lord, to introduce and f»
pare the jury ibr this, it wdl be peeewaiT, 1
humld^ conceive, to read the Records nr oi
conviction of Whitebread and Ireland*
X. C, X Well, go your own way ; we in
not to direct you ; I only Idl jrou wliere tlic
qua^tion hes.
0<it€^, Sir Samuel Astrey, prav be plca«l
to read tl^-m in £nglish> thai the jury nar
understand them. First read Ireland^ reeori
[Which was done,]
Quia, NowreaifW'hitebread^areooid: rea'
but the attainder, I will not trooble the opist
with the whole record.
CLofCr, "Thomas White, altaa Wkili-
bread, William Harcourt alias Harrisoih Jofca
FeQTvick, JoliaOavcBi ftad Anibony Tmrn^
iibi.: i^ m I
11]
STATE TRIALS, l James II. 1585.— /or Ptrjury.
[1142
foimd guilty of blgb- treason, and at*
tiled, and execution awarded njjaitist them
m that attaifider.^'
iatct. Does not the record say, the jurors
' upflii their oaths they are guilty ?
L. C. J. Ves^ t MiU wjjrrant yoii.
^l. of'ih'' Cr. It is ' dicunt su|icr sacramcn-
Hcn sun Ml J
iOatcs. Verv Uell. Hiese, my lord, I do nro-
! as my first eviderjoe, to prove that there
traitorous consult held upon the 24lh of
ril 1(578, at the VVhite-Hnrse tavern, tu the
and, it having' been belie veil and athi'Lued
TO verdicta. Now give me leave to otler
[lis to the court, that at the trial of Mr.
and f- guve so full and ample a testimony
' ist Whitehread and Femriek, aecom|ianieil
all tlie cirenmstances of time and pjace,
kt my lord efiief jiistiet^ Scrog^fs said, * Tlie
'deuce mi^ht be sufficient to have satialied
'jvate conscience, though it was not a legal
iif then to convict them, there being* hut one
essaffaio&t them :' and for this I call Mr.
ert Blayney.
ates. Pray swear Mn Blayney. £ Which
done,]
*X C J* What do you aslc Mr, Blayney ?
Oatn. Mr* Blavney, have you your notes
' IreJaud's trial here ?
aifnty. Yes, Sir, ! have.
ttiet. Pray will you look into what my lord
f Justice Serog-gi said \^ hen he disci larged
fe jury of Whitehread and Fenwick.
"Hlayney, Whereabouts js it, Sir, in the
Dt^ trial ?— Of//f5, It is pa^e 53,
"^ ^a^ney. 1 have found the place, what is it
I won Id ask me ahuul it?
^ates. Whether my lord chief justice Scrogjrs
I not use tliese words to the jury ? * I do
JtnowleiJ^e that IVIr. Gates has ^^jven a very
aud aiuple testimony, accompanied with
\ the circumstances of time and place, against
L all ; that may j^o far with you, all things
Rdered, to beheve there is a ptot : yet 1 do
I think I hey have proved it against While-
1 ami Fen wick by two witnesses ; though
\ testimony he so full as to satisfy a private
icience, yet we mnst go accordmg to law
It will he convenient from what is* al-
dy pro^cii, to have them stay till more
of come in ; jt is a great evidence that is
Linst them, hut it not being sufficient in
\ of law, we discharge you of Ihem, It is
a legal proof to convict them by, what-
' it may be to satisfy your consciences.'
Biai/ney. I have hmked ujion my notes, and
I cannot tind exactly those ^*ords.
£. C. J. He says he cannot find that pas-
cagpe as it is there*
Blaynry. There is something to that pur-
pose, my lord- ^
Oaieg. Pray, Sir, will you look into your
^Btes in the very same place, what my lord
^bef harou saiil : " You must^ (speakmg to
VK jailor) * understand they are no way ac-
aiiltted T the evidence is so full against them
testimony, that there is do
reason to acquit them ; it is as flat as by one
witness can be.*
Bfaynfy. There is such a passage, I find, in
my note«.
*L. C. J. lie says there is such a passai^.
(Mtrs, Then T desire Mr. Blajtiey would
look into his notes, what my lord chief justioe
Scroftx*' ****1 'T^ !>'* summing" up llie cvideuci*
against Ireland. He mentions tlie evidence of
sir Dennis Ashburnham, who was prmhiced to
discredit me, and then he adds, *■ When the
matter is so accompanied With so many other
eireumstances which are material things^ and
cannot be evaded or deny ed, it is almost Jm*
possible for any man either to make such m
story, or not to believe it when it is told/ It is
Ireland*^ trial, pageTS.
Bifij/ney. My lord, I do fmd such a paisfig^
in my notes.
L. C, J. lie says tli^re is such a passage ia
bis notes.
Gates. I'heo I wouhl ask Mr. Blaney ano*
ther question : At the brinjring in the verdict
of the jury iigainsit Ireland, Pickering, and
Grove, my lord chief justice 8croiyg^ (that
then was) had this expression : * You have
done, genilemen, like very gowl subjects, and
very good Christians, that is to say like very
good Proiestiints ; and noiv much good may
their 30,000 masses do them t*
Biatfticif. Yes, my lord, there is in my notes
luch an expression of my lord cliief justice
fikroggs.
OtUct. Pray you, Mr. Blayney, have you
W hitebrcad*s trial ? the Trial of the five Jesuits,
I mean.
Biuynci/. IMy lord, wlien I received a sub-
poena from Mr. Gates to be here this day, and
to bring my notes of Ireland, Whitehread, and
Langhorn's Trials, I did (as I did before upon
another occasion) make a scardi for all my
notes, but could not find any but those of the
Trial of Ireland and Laughorii, and those I
have brought here, but have not Wbitehread'a.
L, C X lie says he has not the notes of
Whitebiead's trinl ; he cannot find them*
Onfes. Then 1 must desire, my lord, that
the printed trials may be read.
X. C, X No, they are no evidence : if you
can prove what was said at any of them, you
taav hy witnesses, but not by the printed books.
Oaics. Then will your lonlahip be pleased to
give me leave to mention wliat was said by
Jrour lordship at that time< when you were
lecordtr of London, about your satisfaction
wilh the evidence.
L. C\ J- Ay^ with all my heart ; and wliat*
ever I said, 1 will own, if 1 can remember it
Gates, Wdl your lordship he pleastid to be
s wo ril then ?
X. C. X No, there will be no need for that ;
1 will acknowledge any thing 1 said then *
Oatis. Then, if your lordship pleases^ I will
read those passages oat of the books.
1143J STATETRIALS, 1 JamesIL l6S5.—7Hal of Tdm iMm, [
X. C. J. Ay, do 80.
Gates. Says Mr. Recorder of London, (in
particular to that part of the prisoners defence,
•t the triflA of the Fire Jesuits, and the full
fcope {^ven them of making objections to the
eridence) when he gave jadgment of death
upon these ftre jesuito and I^nchom (for I
now speak of your lordship in the third person,)
* Your several crimes have been provetl against
you ; you have lieen fully heard, and stand
convicted of those crimes yon have been in-
dicted for.'*
X. C. J. I believe I might say something
to the same purirase as you have read now.
Oates. I thank your lordship for that ac-
knowledgment.
IL C. J. Ay, I will own any thing 1 did say.
Ostet. My lord, I have one passage more
to urge, and that was, my lord, after the
Jesuits had been convicte<f, when the jury
broiurht in theur verdict, and found White-
bread, Fenwick, Harcourt, Gaven, and Tomer
Silty, your lordship, applying yourself to
nury, said thus to them : « Gentlemen, you
of the jurjf, there has been a long evidence
given a^punst the prisoners at tlie bar ; they
were all indicted, arraigned, and tried for high
treaaon, depending u|)0n sevml circumstances :
they can noneoftliem say the court refused to
hear any thing they could say for themselves ;
but upon a long evidence, and a patient hear-
ingf or the defence they made, they are found
gnilty ; and for any thiny appears to us, it is
a just verdict you have given.*f
L. C.Jn I Mlieve I nii^ht say something to
that purpose too at that time ; and no doubt
the jury did (as the case then stood) find an
unexceptionable vt:i*dict.
Data. Tncre is another place, my lord, that
I would iustance in, for your lordship's opi-
nion of the evidence of the Popish Plot, and
that is tills ; now, my lord, I bnng your lord-
ship as you were of counsel for the kuig at Mr.
Colledge*s Trial at Oxford, the 17th of August
1681. There you, my now Lord Chief Jus-
tice, directing yourself to the jury, had this
txiiressien ; • We come not here to trip up the
heels of the Popish Plot, by saying that any
of them wlio suffored for it Jid die contrary to
Jaw ; for if 3Ir. Dujjdale was not a person fit
to be believed, or if the n?st of the judges
who tried Gaven were out in the law, tlien that
man died wroii"ffulIy ; for he had as mucli
right to he tried according to law as any other
person whatsoever. *t This was your lord-
ship^s o|Miiion of the matter then, and your
lonlship, as cminsil for tlie kiii'-T, did tlierc
deliver the law as well as fact to the jury. If
then they went against law, that would go to
trip up toe heels of the Popish Plot-
Just. Withins. >\ e arc got into an endless
wood of sayings of 2)eoplc, I know not where
and when'; ^od w hen all is done, it is to no
purpose.
♦ See vol, 7, p. 488, f Sec vol 7, p, 418,
t JSee vol. 8, p, 70*.
Oates, My lord, it is a part, and a grei
of my defence, to shew what credit hai
given to the evidence of the Popish PkH.
L. C. J. Ay, but what counsel says
bar, or what judges say in the court ol
opinion, is no evidence of a fact, of whi
jury are judges only.
(htes. My lord, every judge is up
oath, and delivers his judgment acconl
his oath.
X. C. J. Not as to the fiMSt, hot only in
of law, so as to tell the jury what the la^
the fact be so and so.
Oatex. My lord, it goes a great way wi
jury to have the judge*s opinion.
Zr. C. /. Mr. OiSes, oeceive not yoi
all this you have insisted on hitherto, I
been to the purpose, nor is any sort<
dence in this case ; and therefore do i
away with an opinion of this as evidei
judge's opinion is of value in points of hi
arise upon facts foimd by juries, but
evidence of the fact: for judj^ onlyt
sume the fact to be true, as it is found I
jury; and therefore say they, out of thi
so found, the point of law arising is tl
thus. Then in case, afler a jury has g
verdict of the fact, a juilge's opinion ofti
(which ma^ be perhaps contrary to the v
should be an evidence as to that fac
would be to overthrow and nullify the
verdict : no, that is not the jud^^'s pn
Surely 3'ou would not have a judge's
opinion, that twelve men have found a
against the fact, to be an evidence
that fact ; no ; but admit the fact
so or so« then the person convicted
fact ought tojsufTer so or so. And '
same reason as this, a jury of honrst ;
men here, when I tell them here is 1
fact cither to convict you, (»r to acm
upon this indictment, arc nut bound
by what I say in point of fact, but they
go according to their own oatlis, and ac€
to the evidence and testimony of the witi
it is not my opinion that is to w cigh at a
them, whe'ther you are guilty of this p
or are innocent, but the evidence that u
here in court. Therefore, what my l^n
Justice Scroggs said at any of those tr
what I said, or any other person, that eiti
of counsel, or ajudgeontlie bench, e
our opinions is but our opinions on the fa
occurred to our present apprefaeasionti.
no evidence nor binding to this jury,
tell you, there is uo doubt, but.^iat thosi
did eiery one of them believe theeviden
gave, or they would not have convict
prisoners. l>o you think tliey would
found a verdict against their own belief, i
ing upon their oaths to make true deliv
between the king and the prisoners, ha'
jured themselves to hang others? ]f th
so done, they had committed wiltul n
and the worst of murders too, being un
lour of the process of law; but yet all
uo «^*v\ftitf^« \ ^wDt dilcoiumeid j
V
STATE TRIALS, 1 James H. i6»Si-ffr Pajuty.
[1140
||C98 things, m inlrodiictive mwA
irimt evidetice jqu baveto otier;
^vifdeoce one way or olher,
liow WBoy times have wc causes
Htrnter-hall^ wbereio we have
t vatlict i* ii[id yet do iro|>utatioo
Uie juries^ which nii^it eive difl^-
\» Ujtou (lifleretit gTounas. There
bfte case lately of roy IniJy Ives* at
re all tboug-ht u}>od Ibe Ifirst trJaJ,
d A» good a title to the land as could
judges and the counsel went away
ifttijitied with the jury 'a venhct tor
rheii the cause came to be heard
found all the witnesses to prove her
Ipiilty of notorious perjury, and the
•Uit which did beUeve before that she
right» and the jury imd done ivpH,
' beard the second trial* did l<*
oa in the wron^f, aod accordir ^^y
jury fount! it m ; and we Wln^ve
erdict tu Ua g^ood, without aoy r«^-
the credit of the first jury J be-
sttdeoca waa as itrong on her shle
waa aflfrwards against her. In
I we give our oplmons always ac-
tpreaent testiinouy that ia be*
, my lord, I offer this to your
EMI tiiat those men that weit; tbuji
UP »*;*K I,, >jj treastin, were priests
11, and particularly Mr.
D*,^ i,t„; i am said to have corn-
jury ; and you shall finil him to
Hbet's pn»ved a priest aud a Jesuit
engaged in a desig-n against the
iTl tJjen do prove, that Ire-
Bgetl in a design against the
^, and was a priest and a Jesuit,
&w^ whether ibis be not a col late -
► render me of credit sutHcient
r lettioiODy ?
* tK> toeans upon this indictment.
jly give some credit to your tes-
h< not of itself aofficient i nay,
I way further than that ; I wdl
II tbere was a consult of the Jesuits
kthof April 1678, at the White- Horse
le 8tnuid, where tliose you sa) were
fcj^ fU tir^cAnt; Ireland and While-
1 Grove and Fenwick,
they did there come to a
/ the late king^ : suppose all
bd yet you all this tmie are
ftbe tact imputed to you, beoatise
tly, ♦ That you were there at
loo/ which you were not, if
•WMT tryc, for then you were at 8t.
thai time 3 and therefore give us
^f testimooy to satisfy ns that you
Pm you will set all ri^bt again.
vnests did plot, that is no*
S evidence true, tf you swore
did not know of your own
r fif Ili0^fie9«al Vofnnie.
Ou(€i. Shall it be allowed then, tkat Ireland
was a Jesuit and a l'api<it T
U C.J. If it should, that will be to rcnf'
little purpose for)' our turn*
Oatei. There ib' the etidencc of record for ^
it, my lord ; but If that be not satltcieut, I csi»
l»H witnesses to prove it. Pray, call Mr,
Miles Prance, [wbicb was done, but he diet
not appear.]
Crt/cT\ He is not here. i,
Oatet. He was subpcenaed, my Iord,tocom#n
hither.
L. C. J. i cannot help h, if he will not comei v
but J ^ill tell yon, for method's sake, not to <
prescribe to you, but to tell you what 1 tUtuJe
may be more for your adiantn-^e than any or]
ilie*<e inferences that you are oiakin'j. If you*
did axil two or three witnesses to prove thatr-
you were in town the 92d. 23d, or 24th of April,. J
it woutrl h" the best defence you can make, aod^
'^ die best aoawerto all that is ob**
J' ist you. '^
Ontrji, I will do tbat^ my lord, tbeOf astdi
follow your directiyiis, M
I^ C. J. l>o so, that is the best way.
^ Oat a. Cryer, call Cecilia 31uyo*
Cryer* Here she is.
Oatet. 8w<^r her. [Which was done.J .
L, C. /. Well, what do you auk this witneia f
Ocitet. Pray, Mrs. Mayo, give my lord a
the jury an account, whether you did sec i
iu i^ndon the latter part of April or the be-^
ginning- of May 1676 ? for that is the qucstioa*^
now before the court.
L. C. X Ay, what say ytiu ? When did yoi
seft him in 1678 ?
Mi-s. Mfiyo. My lord I saw him the latte_
end of ApriT; He came to sir Richard Barker'a
house, where J did then live^ aud alterwards he^
caiwe ag^ain thither within a few days. By
this fircumstance I remember it ; sir Richard '^^
Barker, my master, was sick all the month of j
April, and in the country, only he came now
aud then home for a httlc while aud went
aifain : Now Mr, Oates came there w heu he i
was absent, and a young man that lived in the
hou»e came to me, and told me, that there was
Due Mr. Oates in the strausfc^t di^uii^e that
ever was. Says he, I think he is turned
Quaker. No, said I, he is no Quaker, fortbcy ,
wear no perriwigs, and 1 rebuked the young^
man for saying so. As for Mr. Oates, 1 never ^
saw bis face before that time^ that I know of.
L. C, X How do yott know that to be MtJ
Oates then P
Mre. M(ti^o. The family knew him, and thcjf
told me it was be : That is the geotlemaii
tberc^. 1 speak now nothing but that which^
I tc«»tified «icf en yeai^^ ago, and it ia aH truth;^''
and nothing but the truth.
X. C. J. Ay, no doubt of it j tltou aweireal^
nothing but tiie truth.
Mrs. Muya. My lord, be canto three
four days alterwards again to the hooae, an
ibeo tb« young man came to me^ and tialiriL\iift^^
that pttraon O&tea wia Vcmvt^ ^«iMi&^ vnA.
thereupou I wA U> Wok 5;t)«A\Js*4\ "^Vj ^
1147] STATE TRIALS, 1 jAMkS II. l685.-^7Via/ of Jttui Oatet, [lU8
thou concern thyself with him ? Can'st not
let him alone ? I looked upon him, and I saw
him at that time : And when he came that
time, he went to sir Richard's lady's sister,
who is DOW in Wales, and coming to her, said
the, Mr. Gates, I hear you are turned Jesuit,
and we can hare no society witli you now :
At last he staid to dinner with them, and staid
most of the day there. Then he comes the
latter end of I^lay ; Whitsuntide was in May
thatjear, and Iimowhe came before Whit-
suntide by this token ; I speak of the second
time of his coming : Our custom in the house
. was to wash and scour before the time, and I
was sending for a woman to come and help to
wash and scour, and Aen he was walking in
the garden ; and the younsf man came and
told me Oates was there : He came into the
pantry to me, look, said he, he is come again,
a&d he is turned Jesuit by his disguise. Why,
Benjamin, said I, what hast thou to do with the
man ? Can'st not let him alone P
X. C. J. What was the name of that young
man you speak of?
Mrs. Mayo, Truly, my lord, he is dead, or
be would have testified the same thing.
X. C. J. But what was his name ?
Mrs. Mayo, Bef\jamin ; I cannot tell his
other name.
L. C. /. Wen, go on.
Mrs. 'Mayo, 8aid I to him, Why dost thou
scorn this man ? Prithee get out of the room,
I am not able to hear it : so he walked the space
of an hour in the earden.
X. C. J. Is sir Richard Barker liring ?
Mrs. Mayo, Yes, my lord, he is, but he is
not well.
X. C. J. Was he at home when Oates was
there ? — Mrs. Mayo. No, my lord, 1 think not.
X. C. /. Who dined with him, do you say,
when he dined there ?
Mrs. Maun. 31y lady's sister.
X. C. J. What IS her name ?
Mrs, Mayo, Madam Thurrel.
X. C, X And who else?
Mrs. Mayo. And her sons.
L.C.J. Where arc they ?
Mrs. Mayo. They are iJoth dead.
X. C. X And who else was there ?
Mrs, Mayo. One Dr. Cocket.
X. C. X Where is he ?
Mrs. Mayo, fie is in Wales too, ray lord.
L.C.J, It is a great misfortune to ha^e so
many dead or so far remote.
Gates, My lord, six years time makes a great
alteration in a family.
X. C. X Was there any body else there ?
Mrs. Maifo, There were two of the daughters,
and they could all come and testily the same
thing.
L. C. X Where are they, and what is become
of them ? Why are they not here ?
Mrs. Mayo. They are living in Lincolnshire,
my lord, I think.
X. C. J. What else have you more to say ?
AU. Gen. Pray, Mrs. Mayo, let me ask you
a qutstioni What co1oiu*ed cVothea hAdVxeou
wmmyow saw him first ?
Mrs. Mayo, Fie had a whitish hat, ind co-
loured clotlics.
Sol. Gen, ^Vhat time of the day was it jtm
saw him ? — Mrs. Mayo, In the morning.
X. C, X Did he go publicly ?
Mrs. Mayo. Yes, he went publicly.
50/. Gen, Did he come often to the hoote ?
Mrs. Mayo. He was there frequently, my
lord.
Sol, Gen. Then it seems he was so disgiiiiri
that he could walk publicly in the streets of
London at noon -day, and was frequently in tki
family ? — Mrs. Mayo, Yes, my lord.
X. C. X Now tdl me who was in thefiunily?
AU, Gen. Mrs. Mayo,
X. C, J. Pray, give me leave to ask htftb^
question : Who was there at that time ?
Mrs. Mayo, Sir Richard Barker's Idfi
sister. Madam Thurrel, and his two daa^hlBik
and two of his kinsmen, and two of the nr-
vants, one is here a witness now.
X. C. X Who is that, that is a witness dov?
Mrs. Mayo. One that belongs to sir RicM
Barker, and the other is now dead, and tbM
two kinsmen are dead.
X. C. X What is become of the two daogh-
ters, say you ?
Mrs. Mayo. They are in Lincolnshire^ m
I take it, my lord.
X. C X When did you hear from them ?
Att. Gen. My lord, it is half a year aes al-
most since Mr. Oates had notice of thb TiisL
X. C. J. Where is sir Richard Barker hn-
self?
Mrs. Mayo, I was with sir Richard Baikff,
and he purposed to have come hither; blItb^
ing acrazy man, and antient, it seems heoouU
not, and desired to be excused, for he had s bil
night, and was not well ; Init he desired tbsk
the court should know, if he were well, k
would be there.
An. Gen, Were you sworn at a fonner trill
about this matter, Mrs. Mayo ?
J\Irs. Mayo. Yes, Sir, I was.
Att. Gen. Do you remember what jtm
swore then ? — Mrs. Mtiyo. The same 1 do now-
Att. Gen. Then I ask you this questino,
How long before WhitMintide was it that ^-oo
saw Mr. Oates at sir Richard Barker's ?
Mrs. Mayo. A pretty while before, twice.
Oates. Mrs. Mayo, 1 Ml put you a fairqiin-
tion. Whether or no it miirht not lie a t'ortoigbt
before Whitsuntide, you think ?
Mrs. Mayo. The fast time I saw you was s
week before Whitsuntide.
X. C, J. How can you tell it was but a
week ?
I Mrs. Mayo. It was but a week, becaosetf
I that time I had sent the boy for the uoinao to
j scour and wash there.
X. C, X Was that the last time you saw
I him?
Mrs. Mayo, Yes ; I saw him several timtf
before, and it was all before Whitsuntide.
X. C. X How lonj^ before that, was the M
time that you saw him ?
>\ts. Mu\|o. Vie Nvould be away for tbite ff
STATE TRIALS, l JAttEsII. lSi5.-for Pcrfmy.
CUM
ial how kii»g before I lie [oMi time,
fW lim«' yiKi sow him ?
I^yti. He came still to and agaiiL
tfWbrn i%as the time tlmt ymi saw
^ftn? tiie week htt'orc Whitsuntide^
i you say, w&s the lost time you
favo, I am tiiit able to say that*
1 bid yuu Micve »t vtA» within the
k^ ^vet'k bi (ore :'
Hi* To the best of my reincmbrance
X When %Ta* ti»e first time you
'rtV(»* It ^**as in thebtgioning of Miy.
. *You said at first it wa« at; the latter
fo^. ^^y* niylord, let me a Little
im uniritiing to be intstaken, I would
Og^ htit tlictriilh,
'. No, I would not haTe thee ; but for
:e» let us have the truth ; that is that
rr*
Hw. I tay, the coach -man saw him
rdl at 1, aud he can tell you better
\ But I ask you this question posi-
ng it in May or April ?
§am» To thie b^t of my remembrance
^■niming of May.
^Vas'it withiu a week of May ?
^o. I beliere it was, I cauoot iell
I m ilay .
n, Wh& it so, or not f
layf. I caoDOt be positiTe to a day ;
SIX years time sioce 1 was fint ec-
)out it.
m* But you can remember what you
u^iain'tyou?
favo* I uedare it, 1 speak not a syl*
I win aver to be true, before the
n. Can jou swear it was within the
» days oi May 'f
', Vou tee, 'Mr. Solicitor, she says
t.
fH, I>id not ycm say at that trial, that
lever ttee bis face till a week before
iile, or a little after r*
fotfo, I did bwear the same that I do
le beat oi' my remembrauce, and that
h,
m. But did not you swear so ?
faf^t^, I never huw him before that
' to sir Uichard Barker**, and
tliut he cnme^ 1 saw him not
~ ^i^icovere*!*
iva^ that alter lie had
.... ,.„..... .. iuitiaeT
to^. It was a good while, 1 cannot
h W«i it witliin a month, or two
Uyo. It was more^ my lord.
(♦'Hl«^re t^'^vi sir Kicbard Barker
( ttfo. He was at Putney,
> i sot see him f
Mrs. M<iyo. Mot then he did not.
L, C. J\ Did hp afterwards f
Mrs. Mttyo. Yes, he diil se« liim aflerwan
L. C. /. How long afterwards was it ?
MrH. MaytK I cannot tell how long aAer^^l
wards it was, my loni.
X, C, X About what time was it ?
ftli-s. Mdyo. After the Plot was discovenil^J
he w(Ls up anil down in the family.
L. C\ J. You never knew Mr. Gates before ^
thnt lime he came in disguise, and you did i
kiiow him then, but as they told yon it was hef^
Mrs* Mityo, No, I did not, but as they toU"
me then ; and this is the man 1 wilUwtar it
Oatet. Call John Butler.
Cryer. Here is John Butler.
Gates, Swear him. [Which was done,]-
My lord, if you please, I will propose my i
*|UC8tions to your lordship j and my first ques* ]
lion is thi!i, I pray your lordship would as!
him, Whether he gave in any evidence at
five Jesuits Trial, or Langhom's Trial^about my J
being in town in April or May 1673 ?
L.C. J. Did you give atiy evidence at
five Jesuits Trial f—Bur/m Yes, I did.
L.C^ J, Did you give any evidence at Lang
bom's Trial P
Butltr, Yea, my lord, I was a witness thera.
Oaiei* My lord, it is so long ag*i, that igno-
rant people that come innocently wHhout de*
sign, may not be so ready in 'their remem-
brance, as those that conn'd their lesson lor «tj
long time together.
£. C J. Well, well ; what do you ask hint J
nejrt, Whetlier he will stand by that evidence^
he gave then ?
Butler, That is all I have to say, my lord fi
I did testify the truth then, and will abiJe by it.]
X. C, J. But he mtist give the same over^
again here, or it will signify nothing.
Oatii, My lord, it is now six years since, and
this question was not thought to be stirrefl sa^
long after: therefore I beg so much favour,^
that the evidence he did give at Mr, Langborn**^
Trial may be read to him.
X. C\ J, O ! by no means.
Oaics. My lord, it is such a distance of
lime
L, C. X Look ye, if he has any notes hitn-
self, he may look on them to refresh him.
Oalcs. My lord, he comas raw hither, witb- j
out any instruction at all.
X. C J. So should every witness : God for-
bid we should counteounce the ijistructiug of i
witni'sscs what they shotikl Mivear.
OaUs. 1 lM*g your pardon, my lord, I did
hnpe tlii!i lavour mit^ht be granted : I will then
ask hi in some* ipu*stioti9.
X. C J. Ay, ay* do, refresh his memory b«
questions as much as you can. Come, IT
ask him some questions tor you ; Do you re- '
member you saw Mr, Oatra at any time in the
year 1678 ?
Butler, U' it please your lordship, as near
as I can remember, ft taw him in May befort
the plot was di?»covered.
L, CJ. T\ia\vra%i:b«^«Ax V^^^^
IWtt]
tasMMldidMebia
Bmtkr. I ww • perfinttoifar BidMurf
IMr.Oilwiidlir '
£. a /• WIno wit it tet ha dfaMtdMra ■!
_ „ iaahytfciit
MnlM M vtel to
AjnrI
hmni It
X^aX WfaeniKdmifwIitetfafaif
atmvBiMiv^bflNM,'
JC^CJEi WlmiiiMit««tlMWfBtiDi«ir
BHlIri ItwasaywrtrtMWftMtlMMMr
'tit I Mm liJBi flMiilwfl iinwtog in ay n»
UrtlMM.
Jl^.<7ai. AT,wlMl«qpiiM4kibeeoniiiiif
Bugler. HitludrwiiQutoi^^lofe cropt to
liiNnLMBdMoMwUtolMt orer hb tad;
ax HwrWjf dtor ttiiWMit,tiMt jm
MHfBto w A WitlliltP '
h im whca tlM tMtifmiiUM
Wm ^k the lint tim* yod Ind TO*
I tiMM cmmmtuionir
Birf^. Ym, my loid, that w»t the flnt
toM.
X. C. /. Then how came yim e year and an
hilTa time^afterwardt to remember the preciae
month of Majy when yea did not know yoo
i^jbotdd be cafled to qemtion dboot it, and yet
yea eanyiot remembar the time jparlicnUriy
when Gates went to iaa,bttttdm the oempaaa
of a year or two?
ButUr. I gnesB it waa n jFcarbelbrey I can-
not exadlY tell.
L.C*f. When you can bat gneaa at the
time of aneh n remarkable paaaage, within the
ooaapaas of a year or two, how can you pitch
npon the rery month ibr such a thing as this is,
a year and a half '• time after f
(kUtti No, my knrd, it waa not ao Umg as a
year and a half.
L, C, X P^f Sir, have patience.
(ktUt. My lord, the records shew, that Ire-
land's Trial waa the 17th of December 1G78,
and thn Fife Jeenits Trial was the U^th of June
1079.
X. C^X Then' 'it is a fhH twdfc^montfa's
timfvaDdmsve ftom the M^ that he says he
saw jron at sir Richard Baiker'ji to White-
hrsndiiiTriaL in wUeh be was exainiBed the
flrattunn> New ihat'whiekf'I desire of him,
lit to firemen reason wliy lw>TCttientee ft
w»» jn the Mii<»i#u|<<(fai4ltfllil>LUiIAu»
Mutler, Mj bnf, tba liuly wlifini I dut Mmg
. died in Febniary belore^ tKat ytmr.
It* C. /, But gtTe int' Botne TeJtsoa of jtNir
retnembrauec so lon^ A.(U*t.
Butkr. My lordf T tla t^ well m§ I can.
i. c. J. ^k;i, what is it? ,
Butler. My lady was b»n€tl In Feltniwj, i
aod tie ccroesi into tbii yanf where I %%&» clesm I
i»^ my €oaeh) in Mity folloviir^ that Ftlxii* i
ory, miich was May before the tltscorwy ift
th« plot. Mn sfkeii iit« wlittt aJt^mtion iiiu ts
the ikm»tj? I tald Mm my lady wqs df-ad,
the eicutch#Qn w^ «ver the ^oor for b«r, Be
asked for Dr. Tmigpue when he came fifit it
tbe bmiBf*
X* C. J< Why ibotild lie vmk Ibr Or. Tnnpef ^
Buikr. My loril, Dr. Toopie lodgrd ti>€f*1j
and he did a^k far him: rc4>ine tc? jioiif;
the truth ; upon my salvation^ what J wy
h true.
X. C. X Wen, wh^n he naked whalier Dr.
Tongne w«s .mthio, what said yam T
Butkr. 1 told faiiii» no ; but he mmi itiB
the room where 0r. Tongue uaed tn tk;^ te
found biin not Ihete t so lie went out a^pob
That waa the same time Mrs, Mayo hw him
X, C. X But^ fri«ti(lr pnthee niind nl^t [
ask th€^, hecaufi« thou mu^i give tne «»Gedk>
tion how thoQ couiest IQ remember thb, m m
to be able to swf^r it ; for hla g^ing to ad lif
Tmi^e, or tbe e«»euteheoi] being over th* d9«|
' neither of those tan be & reaauo Ibr yon lo r^
. member that Ibis w%s in May^ for the <
. eheon may be up in June, or Jtt1y« m m ku
gtuit or in any other month ai^er tbe time jm
speak of: But how came you to tike fiolkarf
thk busuicss that it was In May T
Butkr, Sir Richard Barker, ray
waa theu aick at Putney, which was ia W^
though 1 4SQJinoi apeak to a day or a wecifM^
iioulaiiy.
X. a X Then pritheo let me ask the« di
{jUGstion, how long bad your tuister beoi M
before tbatF
Bittf€r* He bad neter been wdl
lady died.
X, C. X Wbeu wai it that your kdy MF ^
BuiUr. lu February be^»r«.
X, C, X How long after that did yooriBil*
Uft ur Richard Barker, con^nuetidi:?
Butkr. Haifa year, I believe.
X. C. X Why then, auppose yoorTOi^
fell sLck Iminefliately after yo^r laoy difd, mA
he continued sick half a year after, y«t*U4ii,
while Gates might come during bis «Gbe|l
even in the mouth of June or Jm^, when il*'
acknowledged be was in town, and not Ub«ff
in Febroary, ivhich is tentiftcd by a p^,
many witne«S4?s. _
Buikr. My lord, I teO yimr kidibf >U
tmth, it waaiii May.
X. C. X BotlwirdoiktIM'coMlifl
Dotioe it WM in th« monfh^f Nqr M vl
MstOBweuHL
Bmtkr. My Imd, I Id!
Uywaii'de^tf, ml tf
II5S]
STATE TRIALS, 1 Jambs II. l(J85.— /c»- Perjury.
[1154
LCJ. So it might be, though he came in
Fopeor July, 1 teW ye
hutUr, ily master was sick at Putney at
:ittt time.
L C*. J. How long (lid he lie sick at Put-
ley?
Mailer, He was sick there a fortnight, my
Old.
L C. J, Then prithee when did thy master
olo Putney?
Bktlfr. I cannot tell to a day.
L. C. J. In '^ hat month was it that he went ?
Butler. It Wis iht* latter end of April, my
«d, as I n*nief i>cr.
L. C. J, Hiiw long continued he sick at
toey?
Buikr. The matter of a fortnight.
JL C. J. Was not your master sick, when
Mr lady died at Putney P
Buthr. No, he wa4» not there then.
L, C J. When did he go to Putney, say ye?
BhtUr. He went not tiiither till tlie latter
id of April, my lord.
L. C. J. And did he continue at Putney but
ortnigbt ?
Butler, Not at a time, but he continued go-
^ftiid coming a quarter of a year.
Xm, C. J' But this was the first time of his
■9, was it?
0Bf(pr. Yes, as I do remember.
Qi/0. My lord, he is my witness, and I de-
al mav examine him.
Lb C. /. Hold there, Mr. Oates ; he is mine
I. - All the witnesses are mine to satisfy me
Ae truth of the fact.
Omiei. And Ui satisfy the jury too, my lonl.
L. C /. Yes, and to satisfy the jury too,
tl must and will sill -out the truth, for both
r nti«factions.
Oalcf. My lord, it is now, come the next
Mth, six years ago since the evidence of
Biamtter was first given by these witnesses.
L. C. J. Then, Mr. Ostes, I will come a lit-
: rounder to you, and I will put you into a
ttun way of clearing this busincHs. I will
I you what you shall do ; you li.ul a Io<lging
tJim, as well :vs diet, and as well as you did
tat Dr. Barker's sometimes, so you eat uud
f ■ometiroca elsewhere. You wVrc here in
«n a ereat while together, if your own a«-
ftionB be true; for you were from April till
inein town ; now come and give un account
r loiiie wimesscs if vou can, where did you
^at^tliat time, and where did you diet ? for
neriH you had but one meal at sir Kichard
arker*!.
Otttei, la that the questicn, Sir, here hi
ind?
L. C. /. Ay indeed is it, and the main ont;
».
Otta. I be^ your lordship's pardon if 1 mis-
dw, but I tbmk that is not now in (piestion ;
hr tlif^e St. Omcrs men do swear. That f was
A April and May at St. Oniers r then if I iio
jNve that in April and May I was not at St.
Wn, but here in liondon, it is argument
pideuiiugliagBiust tbcui th.it tJicir cWdoncc
7tti.X
is false. And indeed, can vour lordship or tha
jury expect, that I being tfien engaged among
and for the papists, and afterwards an evidence
against them to discover their treasons, cau
bring any of tlietn to testify for mo now ? No,
they will as certainly forswear themselves, as
these young fellows have all done.
• L, C. J. l^t me ask you a shorter quoslion :
did you always lie in a papist's Imusie all tlie
two months you say you wci-e here?
Oates, My lord, I lay at several houses.
L. C, J. 'fell me the names of those house?,
or any of tliein.
Oatcf. It is not to the point in question here,
my lord.
L, C. J. Yes, it is very much ; but 1 per-
ceive it is af-eeret, and lor any body jud^e why.
Oa/cs. My loitl, they that have hy tli«? prin-
ciples of their religion,' liberty to affirm or deny
any thing, and can have dis| sensations for the
vioiaiions of ocths and sacraments, certainly
are not to be admitted as witnesses in such a
case as tbis.
X. C. J. Talk not to roe of dispensations,
and I know not what ; I speak fi-om a plain
demonstrative proof: can it l)c believed that vou
should be here in England so long, and as they
say publicly, and no fierson living see you that
we can hear of, but an old woman that never saw
you, nor knew you before, and a coachman
that tells a wild story without reason ? If yoti
will not tell me where you lay, can you tell ma
where y oii did cat all that time ?
Gates. I can tell where 1 did lie that time.
L. C.J. Do 80 then. Let us hear it, that
will be your best defence.
Gales, Is that the point, my lonT, in ques-
tion ?
L. C. J. Ay, upon my word is it, the main
point in this case.
Gates. If it it should go u|M)n that foot, my
lonl, it is im]K)ssible for me now to prove it ;
for it is well known, I lay sometimes with iMr.
Whitehitad, and sometnnes with !\1r. Mieo,
neither of which can 1 have to tef^iify for me;
and i)esifles, 1 must insist upon it, tiiese things
weix' in questi(»n at Whitel»read's trial, nor do
I believe that Mr. Whitebread, if asked at his
death, would have justified, and btnodbyit,
that I was nut here then.
L. C. J. Well, this I must certainly say, I
cannot help it, but it will stick with me till
iMHter answeretl. I can never be satistieil, that
if you were here so long, there should no better
evidence be produced to prove you here.
Oates. My lord, nor can I help your di^sa-
tisl'actiou, but I am to satisfy all that hear ma
this day, that is a very hard case that is put
ufion mc; I have taken the niovt rfi'eetual
course that I could, to provide for evidence to
make my defence; and I think, hy y<»urlord-
sh:p*s good leave, X\i(t*i0 that I have prodnceil
do prove me heri? in town in April and May
107 il. And it your !urds:iip has done with tbii
witnrss, i uiU'enll :Mi«i:h(T.
L. C. .h Wil^viouvia.ii^Q^V\\V YNiiftk-^^i*.
what 81'kckH ^^\lU itt«.
^ K
] 155] STATE TRIALS, 1 James U. l6S5.—HM ^ TUub <kte$, [IIM
Oate9. Pray call Mr. Philip Page.
Sol. Gen. HoW, Sir, a liUle ; I would ask
these witnesses a few questions before they eo
away, x Vou Butler, let me ask you, pray the
first time you saw Mr. Gates at the time you
speak of, was it in April or May ?
X. C. J. He swore it was the beginning of
May.
6uilcr. To the best of my knowledge it was
the beginning of May*
Sol. Gen. Who dici you tell first, that there
was Mr. Gates, at that time ?
Butlen I told it Mrs. Mayo.
Sol. Gen. Consider, friend, what you say
feow, you are upon your oath, and consider
what you said at the former trial, when you
were upon your oath too.
Oatet. P'ray, my tord, I desire my witnesses
Bay be examraed without threatenings.
jL. C. J. It is not a threatening, it is an ad-
monition not to go beyond the truth.
Sol. Gen. Be sure you be in the right in
what you say, and now I ask you uiwn your
•ath, when was the first time you saw Mr.
Oates when he came in that disguise you
speak of?
Butler. I told you it was in May, Sir.
Sol. Gen. How far in May ? consider well
what you say?
Butler. To the best of my remembrance, it
was the beginning of May.
Sol. Gen. Do you thmk it was within a
Week, or the first ten days of May ?
Butler. I cannot tell that ; as well as I re-
JDerober, it was the beginning of May.
Sol. Geii. When you saw him first in May,
who else, as you rcineniher, was by ?
Butler. Mrs. Mayo.
Sol. Gen. And nobody else ?
Butler. Yes, one Benjamin Turbet, who is
since dead.
Sol. Gen. But consider your oatli, friend,
once more, and recollect yourself; do you
swear positively Mrs. Mayo was by ; and did
see him at the same time ?
Butler. I saw her lookout out of the window
into the yard, nr.u 1 [)elieve she did see hira.
Sol. Gen, Well then, let us examine her
evidence and yciir'3 togeihtr, and see how they
agree.
Gates. My lonl, these are not questions
tcndinjif to satisfy ihe jury at all, as to the point
in oueNtion.
L. C. J. Arc they not? niethinks they are,
whr.tsocveryou think.
Cata. Atkr six vears time, to ask such poor
ignorant i>eo}>le f,iicn triiliii*jr questions !
L. C. J. i^rav, Sir, be contented, and let
the king-'s counsel examine the witnesses.
Oates. IMy lord, he says I was here in May,
that is enough.
X. C. J. Well, Sir, I know what he says.
Sol. Gen. And you shall hear, Mr. O^tes,
how your witnesses agree.
L. C. J. Go on, Mr. Solicitor, and do you
Alt still and be quiet
iW. C^, Twm, my lord, 1 would vSl Vim
thb questioQ more; the first time JM nw
Gates come to sir Jticberd Barker's, wbil
habit pray yoo, was be in ?
Butler. He was in a disguise?
Sol. Gen. Ay, what disguise?
Butler. He had a white hat fliwing owr Wi
ears ; his hair cut short, ckse to liis eait, nk
a grey short c(>at
Sot. Gen. Had he nerer a periwig OD?
Butler. No, his hair was cot sboct to kii
ears.
Mr. Homes. Was he in such a dimiae, Art
a man might not ordinarily know Bim, tbK
had not known him before ?
Butler. IVuly, my k>nl, I did not know kii^
when he first came in, 'till he spoke to w^
and asked me. How do you, John f and tlttl
recollected who he was, that it was Mr. QMr
Sol. Gen. Was he always ia the sans liili^
when he came thither ?
Butler. The next 4ime he came be Ml
cinnamon-coloured suit, and a long Uak
perriwig that was curled down thus &r, isi i
black hat, with a green ribbon and greci tA
strings about- his wrists.
I. C. J. Dkl you ever see OatadiMtlwef
Butler. Yes, I did.
L. C. J. When was that ?
Butler. After my master came bono tm
Putney.
L. C. J. Who was there besides ?
Butler. Gne sir William Thurrel and maip
Thurrel.
X. C. J. How often did be dine then?
Butler. Several times.
L. C. J. Who else was there ?
Butler. My master and his daughter.
L. C. J. And who else ?
Butler, Mrs. Mayo.
L. C. J. What is become of your jnaster*!
daughter ?
Butler. I l^g your pardon for that, m}' lai
L. C. J. Where is she, man?
Bu'hr. She is at lion»e, I suppose.
L.C.J. What dost thou beg my pardcs ftr
then ?
Butler. i\Iy lord, I call to mind she did doI
dine uitb them.
L. C. J, Did she dine at any time with hia
there ?
Butler. Yes, I remember se?eral tiaes^
but not then.
L. C. J. When did you see your naila^
dauq-hicr last ?
Butler. I luve not seen her this quarter of •
year.
L. C. J. Where is she now ?
Butler. At home at Putney, my lori, I
believe.
L. C. J. And she was several timet diet
when he dined there.
Butler. Yes, she was at home.
L. C. J. Did Mrs. Mayo see him at iStttf
ihere?-^Butler. Yes, I believe she did.
L. C. J. How often did be dine thai «M
this time you speak off
ButCer « ^^ecai timeg»
STATE TRIALS, iJamb^II. I685
rii5»
J, Do yon think seren times ?
r. I do think he might ha?e dined
▼en times.
J. Did he more than seven times, do
r. I cannot number how many times
J. Now come in, Mrs. Mayo, again.
Mai/o. Here I nm, ray lord.
/. Mrs. Mayo, give me leave to ask
aestion or two.
►. Yes, my lord, what you pleie»e.
/. You say (if I do not misremember ;
I bejf your pardon, and you*H correct
reek m May was the first time you
*. Gates, and that was at sir Richard
sP
Mayo. I think it might be about the
igofMav.
. J. Had ne been in the house before?
Mayo, Not at that time that I know
IS tfey told me.
J. Who told you?
Mayo. That coachman there, John
and one Bei\jamin who lived in the
/. Then you did not see him the firist
came? wnatsay you, Butler ?
T. She did see uim out of the window,
ard.
J. Well, let that pass then: come, I'll
another question upon your oath, how
ve you seen him dine there ?
Mayo. I saw him dine at that tunc that
J. Did not he dine there above once ?
Mayo. No, he did not.
J. What say you, Butler ?
r. Ue did dme there several times with
J. Then one of you two mnst be mis-
am sure.
. . My lord, if your lordship would
> give me leave to speak, I would set it
X Good Sur, let them set themselves
ii^ can, we need none of your instruc-
. MTlord, I
J. Why, how now P Pray, Sir, be at
Mrs. Mayo, pray what habit had Oates
rn saw him first?
Ifoyo. He was in a grey hat and a
It.
X Was his hair short or long ?
Mtayo, He had on a kind of a short
Ten. Are yon sure it was a wigg?
Ifiiyo. Yea, a kind of a brown perri wig.
X. And he says his hair was cut short
mt
• Tbese thmgt are very lean stuff to
awitDMlvpon.
Xm* Whoi.he came the second time,
' Ibeon?
Afterwards he came in black
"fi^ Perjwry.
Mr. Haiues. What coloured perriwig wat
that, a black or a white one ?
Mrs. Mayo. Not a-black, but a brown.
Sol. Gen. You say it was long?
Mrs. Mayo. Longer tlian his other, yet not
very long neither.
L. C. J. Here are I know not how many
contradictions in these witnesses testimonies.
Oaies. Truly, my lord, I do not find in the
examination of the St. Omers witnesses, yon
were so strict, or bore half so hard upon them^
as you do upon my witnesses ; what does it
signify, my lord, whether the wigg were long
or short, black or brown ?
L. C. J. We have no other way to detect
perjuries, but by these circumstances ; and 'tit
the duty of a judge to enquire into all particu*
lars; as in a controversy about words, wera
they spoken in Latin or in English, and so ta
all places and postures of sitting, riding, or tUa
like ; as you know the perjury of the elders in
the case of Susanna, was by their different
testimony in particular, circumstances dis-
covered.
Oatet. My lord, I will ask her but one sbont
question. By the oath you have taken, Mrs.
Mayo, to speak the truth, the whole triith, and
nothing but the truth, as you expect the face of
God with comfort in another world ; did yod
sea me at sir Richard Barker's at any time in
May 1678 ; the May before (he plot was dis^
covered, for that is the main question ? '
Mrs. Mayo. Yes, I did, and I speak nothing
here, but what I speak as ill the presence of tha
Lord. I
L. C. J. Prithee, woman, dost thou think
we ask thee any thing that we think thou dost
not speak in the presence of the Lord ? we wrm
all or us in the presence of the Lord always.
Mrs. Mayo. And shall answer before him for
all that we liave done and said, all of us, th«
proudest and the greatest here.
X. C. X But I would not have so much ta
answer for, as thou hast in this business, for
all the worlds
Sol. Gen. Well, we have done with her now^
she may go away.
L. C. X Where does she live now ?
Cryer. Mrs. Mayo, where do you live now ?
Mrs. Mayo. In Leaden-Hall-street, my lord.
X. C. X When did yon sec sir Richard
Barker's daughter ?
Mrs. Mayo. About a fortni«;ht ago.
X. C.X Where?
Mrs. Mayo. In Barbican, in London.
X. C. X Do you live with sir Ricbar4
Barker now ?
Mrs. Mavo. I do not live with him now.
L. C. X Did his daughter use to be at thf
table at dinner ?
Mrs. Mayo. Slie was often m the country,
my lord.
X. C. X Did she eat at his table at that tlma
when Oates was there ?
Mrs. Mayo. I am not able to say whethcf
she did or uol •, %V\c u^«4\»Vfcvo^NH^«A^^s*
Tbomaa l&VdAkfiusu'm wntMlQaMflK «^ ^"^
1I59J STATE TRIALS, 1 Jambs H. i585^!IVmiI ^fTOmOjdeM, - {llflf
madam Tharrd, ber aunt, who was her mo*
ther's sUter, and her two daughters.
JLC.J. Ill Wales, dost tSfou say? Where P
. Mrs. Mayo, My lord, in your own oonntry,
€U one Dr. Cocket's ; I know your lordship,
though . your lordship does not know roe. ^
X. C /. I am very ^ad of it, good woman ;
hut prithee did ever sur Kichud Barker dine
with Hr« Gates P
Mrs.'J(fifyo. I cannot say he did, he went to
and. fro.
L. C. J. Wdl, haveyou any more witnesses ?
Gates. Crier, call Philip t^kge.
Cryer. Here he is, Sir.'
Oaies. Pray, swear him. [Which was
done.] Pray, he pleased to gire nnr lord and
the jury the best account you can ofmy beinur
in town. But Mr. Page,^theaue8tion that!
first ask you» is, whether I was here hi April or
- May, and in what year it was that you did see
me at your roasters house ?
L.C.J, When did you see Mr. Gates at
yoor master's house P You mean sir Richard
Barker to be his master, I suppose ?
Oate$. Yes, my lord.
X. C,J. What do yousay to it?
P<i^£. Truly I cannot oe positive to the
year; but to the best of my remembrance it
was 1678.
. ^ Oaiei. Pray tell my lord and the jury some
cbcumstances in thai year that did happen
to y«a, that makes ^ou believe it was 1678.
• Page. S^^ Til gi?e you the best satisftu^on
I can to the best of my knowledge ; he came
to sir Richard Barker's one evening, and there
he enquired for Dr. Tongue : he was in a dis-
guise, in a light- coloured coat, something like
a frize, but it was not frize ; the term that
they fpye it, I cannot so readily tell. He had
his hair cut short, almost to his ears, and he
had a broad-brimm'd hat on, and a small stick
in bis hand, walking melancholy about the
hall ; I happening to be the first body lie met
with, as I suppose, he asked me if Dr. Tongue
was within. I told him no, 1 had not seen
him of a considerable time. He then asked
roe where sir Richard Barker was ? I told
him he was ill now at Putney. Says he,
When will he be hero ? 1 told him i could
not tell.
JL. C,J. Did he see any body there but you. ^
Page, That I canuot tell, my lord ; not
that 1 know of.
i. C. J. What time of tlie year was it ?
Att. Gen, And what month ?
Pagt, What year and wliat month it was,
I am notable to say, my lord.
L. C. /. What became of him atlcr that ?
Page, He went out of our gates then, 8ir ;
he was walking up and down melancholy, and
not finding any one, as I suppose, to answer
him, he continued walking in the piEUient's hall,
where they used to wait on sir Richard Barker^
that came to discourse with him about physic ;
and upon my answer to his questwn, he went
away.
Z. C. J. Did you ever Me lum lay oCbst
Mam Bear to tbsit time?
I'
Pff^e. No,idid not.
L.C.J. Didyou use to wait at table?
Page,, No, I did not. «
X. C. J. What service Were yon tiioi Oh
gasred in at sir Richard Barker's?
Page. I made up the physic, my lord.
L. C. J. Did von not aoauaint the eoack*
man, nor Mrs. Ikfayo, nor air Richard Bariv
with it?
Page. I thiuk sir Richard Barker was it
town soon after, and I did acquaint him wHkiL
Oaies. But cannot you tell what time this iL
Sir?
Page. I can say no other than I hare nii ;
I believe it was in 1678.
L. C J. Was this in June, July, or.lfij, m
when?
Page. I cannot say panctimlly what aslh
it was, nay lord ; but to the best of my hmn
ledfife and remembrance, it was in the begintf
of May. ^
Oatei. Had not your master a patient at Is-
lington at that timeV that was sick of a ferer ?
Page. Yes, be had.
Just WitAins. Why,woulA Mr. (htabiit
given the patient physic ? . ^
Page, No, my lord, but it vras about iInI
time that the patient was under my
cure.
Oatet. Indeed the St. Omers men do
thorough -stitch ; but my honest wil
cautious, it being so lonff ago ; and he thilif
a minister of the Church of England (ailkif
say) speaks to a very day, upon a mmk
slighter circumstance. Pray call Mr. Wi*
liam Walker.
Crycr. Here he is.
Outci. Swear him. (^Which was done.) Be
pleased, Walker, to give my lord to UBdc^
stand, when it was you saw nie here in Los-
don in disguise, and when it was yoii sirore
six years agone at the Old- Bailey, that yoa
saw me here in London. Sir, the time io
controversy is this : I came here to discover i
Plot of the Papists against the king*s life tod
the religion, and 1 swore
L. (J, J. You must not ask questions in tint
manner. It is profierest for you to prop6se
your questions to the court, and they will wk
the witnesses.
Oates, I'hen I will not ask him, but propoie
it to your lordship.
L. C, J. Ay, propose what questions jt*
please, and if they arc fair, I will ask them.
Odtes. Then, my lord, 1 would ask Jb.
Walker this question ; when it was he metnt
with a disguise, in what year and what moatbf
Walker, J^ly lord, I have been interrogald
in former times upon this point, six or setci
years ago; and I do confess I did scetbeffliBr
and met him between St. Alartin's-Lane td
Leicester- fields ; and truly, my lord, I ihiik
I ma^ say it was my unhappiness to wtd
with him ; for I have had a ppneat deal of tita-
ble by it since, subpcena upon sobpoena, M"
ble alter trouble, that 1 am even weary ifi^i
foe I am an old man. Butldoii^ltfijM^
1161]
STATE TRIALS, l James II. l6ss.—far Perjury.
[1162
kimatthatendof thetowD, between St. Mar- Walker, I was not examined at any tim«
tioVLane and Leiceiter- fields in a strange but one.
A^iie ; he was just like a vagrant, a very L, C. J. Have you any more questions to
niGal, and that is true, I believe, my lonl. ask him ?
Alt. Gen. Did you know him before i* Walker. My lord chief justice that then
Walker, Yes, or I had not known him then, was, did nsk inc, It' I knew any of the pri-
X. C. J. When Iras this ? sonors at the l)ar ; and I looked u(M>n all of
Walker, Aly lord, I will tell yon ; my lord them, and said 1 knew not fiiherof them,
dief justice »cro^, when 1 was at the Old- Oata, Pray, my lunl, a:»k liiin, whether ha
Buley, asked me it I knew what time 1 saw | was not prodiic«d, when the St. Omrrs men
Um thus ? Said I, my lord, it is almost a | were produced, and ;;avc his evidence as to
rear and an halt'since I saw him ; and I beingr j my being- in town at that time,
tn old man, little thought it worth the while I X. C. J. He liears the ([uestiou, let him an-
a lay up the particular time in my memory : ! suci- it.
«t 1 will cast about in my thous^hts lo make i Walker, I am not able to answer you, be-
Im best conjecture I can ; ror now I will not be I cause you put severul questions together ; but
ipon my oath, it being but conjecture. { this L say, I was never examined but once,
L, C* J. But now you are upon your oath, i though I iiave been subpcenaed oiVen, to my
rt]iat,man. j grout torment and trouble.
' Oates. Did you give evidence at that trial,
that you saw me in April 1678 ?
Walker, 1 testified that 1 saw you, and by
such circuniStanees, it must be about suc^h a
time as well as 1 could suggest ; but I could
not, nor cannot speak positively.
Oatcs, Now. my lord, I shall go on to ano-
ther part of my evidcnoe, and call some other
witnesses ; and first td' all, i come to Mr. Ser-
jeant Maynard, and 1 de.«ire he may be sworn.
[Which Was done.]
X. C. J. Vi'liat do you ask my brother
3Iaynaixl t
Gates. I call ]\Ir. Serjeant Maynard to give
an account of the proi'i^dings of the House of'
Commons up(»n my discovery of the Popish
Plot.
X. C. J. Wc will not admit that to be any
evidence at all ; nor can it be by law.
Oa'es. My lord, Mr. Sc^rjeaiit Maynard waa
one of the committee of the lliuise of Com-
mons that managiHl the Impeachii.ent, and can
give an aci'ount of the evidence and records
that were prod uceil at the trial of the lute vis-
count StdfTord.
Seij. Maynard, i know nothing truly, nor
i can I remember any thing of it now.
L.C.J, He says hercmemheis nothing.
Serj. Maunard. If Mr. Gates lia<l told me
befbre-hanJ, uhen he subpceuaed me, what
time, and whu^ particular things he would
Wmlker, My lord, I am speaking Wliat I
■id to the court at that time.
L. C. J, Pray do not tell us an old tedious
torv of the questions and answers in the Old-
lailey, but mind what is said to you here ; my
oestioo is now, what time you saw Gates dis-
liiaed between St. Martin's- Lane and Leices-
er- fields, as yon say you did.
Walker, My lord, I cannot prescribe the
IBM ; but I will guess as near as I can with
he best probabDity, and that is, upon tliis cir-
SMMlance ; when I went fonvani into Ibices -
^-fields, in the court before the house, I saw
he dm- trees budded forth as big as an bazle-
Ml ; ao that I did conjecture by that token, it
9bt be between Lady -Day and tlie latter
of April ; that was the time, as ni>ar as I
noUgucss.
L, C. J. In what year was it ?
Walker, I cannot very well tell what year
kwas.
L, C. J. Was it in 1677 or 1678 ?
Walker, Truly , my lord, I never thought it
Nrth so much taking notice of, to &x the par-
ienhr time in my memory.
Oaiti. Whether was it that year the Pk)t
vu discovered, or the Michaelmas following ?
Walker, I cannot tell when the Plot was dis-
Mered, or whether it be found out yet or no ?
Oate$, P'lt was it the year before >ou were
Esamined ?
Walker. To answer you, Mr. Gates, when ' hove examined uiJ to, prolKioly it 'I u as there,
I was exactly, I cannot say ; truly I would
pie you the best satisfaction I could, and do
foa as much right as I would do myself. I
kiakif that time when I was examined were
i 1677 or 1678, it was near a year aud a jcant
|Hrter before 1 did see you.
X. C J. Well, what can you make of this P
Oaies, It is not to bci KupiK>s*Hl he is a very
^^" witness ; but yet ue says, it was a )
1 have notes that I thun took ; but I eaii never
I swear to my uieuiory , for any cause so long
, ago.
ynruid a quarter before the trial in which he
*« eiamined, which must be in April 167^1
L,C,J. 1 would know this question of you :
2^ you present at the Gld- Bailey, wheu the
Ai Jesoita were tried ?
^alkir. I was there, my lonl.
L C. J. Were you at any ti ial but one I"
Oaten, My loid, I am very sorry Mr. Ser-
mt Muynard's age shuuid so urnpair his
mei.iory.
X. C. J. I dare say, you are not more soiry
tha • he is for his age.
Oatct. Weil, my lonl, I cannot help it :
theu 1 tlesire Mr. Hlayney may be asked,
whether be has his notes of my lord Stafford^a
trial.
hlayney. No, my lord, I have them not
here ; !^lr. Gates, by his ticket of his sub-
poena, desired only the notes of Ireland, White*
bread, aud Lbluk,uwu'i V(\a\.
116S] STATS TRIALS, 1 James IL \6s5^THal o/TUmM Oaie$, [1164
JL C. J. But t must tell you, Mr. Gates, if
tfaoie notes were here, they could be of do ute to
you, without the record of my lonl Stafford's
attainder; if you ask any X\{\u^ upon another
trial, you must produce first the record of tliat
trial, and then you may examine to what was
given in evidence at the trial.
Omtet, My lord, it is of record in the House
«f liOrds.
L. C. J. But that we are not to take notice
•f, without the record be brought in evidence
More us : we must {^ acconliug to the course
of law in all cases.
Oatu, Then, my lord, Imust betake myself
to another part of my defence ; and that is, to
i^vove the frequent attempts made to Iwffle the
discovery of this Popish Plot, and to stifle the
murder of sir Edmnndbury Godfrey, and to
flmg it upon a Protestant peer.
• JL. C.J. But that is no evidence neither.
Just HolUncay. Surely that is very collateral
cridence.
L. C. J. Nay, it is no evidence at all in this
ea«e ; we must not admit of any such evidence
to be given.
Oatei, Good my lord, if this had not been
true, which was sworn by witnesses that had
disooverefl the Plut, why sLould these men
mppear to suborn witnesses (and they have
been convicted of subornation, and endeavour-
ihg) to baffle the discovery, particularly as to
jiutice Godfi:ey'84lcath ?
JL C. J. Mr. Oates, I must keep you to
•ridence that h proper ; we are upon our oaths
to ^ accordinc^ to law, and the jury are upon
their oaths to try this cause according to the
eanse it is a record ; hot there is a vast difir-
,ence betwepn the Rec«mls of the House of
Lords, and the Journals of the Hour of
Commons.
Oates. The Journals have been delivered la
as evidence before now.
L. C. J. I cannot tell what they have been,
but I am sure they ought not to ble, and whti-
everthey have been elsewhere, they cannot be
here ; and I will tell yon a plain reason forit,
because they have not so much power in tin
House of Commons, as to give an oath : Imt
the House of Peers is a court of reconl, wai
therefore their proceedings are evidence, a
the proceedings of the King's- bench here, «
any court of record are.
' OaUs. Then, my lord, if that part of mj
evidence be over-ruled, before I come to m
up my evidence, I desire to offer this tk^p:
my lord, I can produce several memben of
the House of Commons m the several pMlki-
ments, that can remember how they oroaM
against the Lords in the Tower, andf the Pofflh
traitors, upon my discovery, and what cmbt I
had in the House of Commons ; will tfait k
evidence, pray my lord ?
L. C. J. No, it will not ; if you will produce
any one that you told this to before the {mUc
discovery, that may be e^-idence such a« it ii^
and is often allowed ; but what the House tf
Commons did upon the discovery, that is sit
any evidence at all.
'Oates. Then, my lord, suppose I can pntt,
that I gave an early and timely account toaiy
of the House of Lords of this conspiracy, aol
did acquaint them with the consult in A'pril u
evidence ; and we are bound to give them this | part ot it; 1 desire to know whether lo |iro-
advicein point ot'law, that nothinsT must weigh, I ducing any of those lords, I shall give ibil
or have any coosiderutiun with them, that you | which is eVideuce?
offer, if it Iw not legal and pnjjier evidence. If ' L. C. J. Cull whom jou will that vou toW
you can say and prove, that any of the wit- ! any thing to, that is a sort of evidence, 1 tA\
ncsscsthat have been produced this day against ' you.
Oates.
Tou have been tampered with ; or tiiat they
nave tampered with any of the Ibrmer evidence,
that is a good evidence against them ; but it
Then I call my lord of Devonshire.
L. C. J. Here is my lord of Devonshire.
Oates. My lord, I beg your pardon fur the
must not be by any means admitted, that the > trouble I put your lordship to ; but your M<
time of the court be taken up, ur the jury iu-
▼eigled by that which has not a natural ten-
dency to the business before us.
Oates. but if your lordship please, this con-
sult in .ipril 1678, was discovered to the \
House of Common^:, among the other parts of •
the discovery of the treasons of w.veral noble- :
men and ^^entlemen : now upon the discovery I that time a member of \lic Commons House)
of the Plot, f desire that I might give in proof " what account I gave there of this ^Mlrticullr
the proceedings of the House of Commons. | consult (to keep to that point that is here in
L. C. J. .\o, i.o, you cannot. | question) be'orc the court this day, am! vitb
Oates. I'lav, my 1f»rd, is not the Journal of . what cre<lit 1 was received in all the^e |>ariU-
the House of CoiuiHon'C evidence ?
L. C. J. N«s we -sii} it is n(»t at all.
ship sees the necessity of it : it is for the juiAi*
ticaiion of tlie truth, to which 1 will give mj
blood for a seal, if 1 be calletl to it.
L. C. J. My lord of Devonshire, your lord-
ship must be sworn.* [Which t\ a/donc]
Oates. Will your lonlship pkv.s«* lo acijiuifil
the court and the jury (your lordship hein;f at
Oatts. Is tU^t tiie opinion of the whole
tourt, my I(»n4 ?
L. C. J, Yes, uudoubtedlv, there is no ques-
tiod of it.
Oa(ef. Is any record of the House of Lords
tvidencc ?
JL C. J. Yes, I tell yoult'Vi AodtiiiXVe-
ments ; for my credit and the credit U* ii»e
parliament i^ now in question.
Karl of Devonshire. My lord, all I can siy
to it is this ; you, Mr. Oates, gave a long ac-
count of a consult and conspiracy anions; A*
♦ See lord Stafford s Case, vol. 7, p. 14*"
and the passages referred to is tb« N^
V
i]
STATE TEIALS, 1 Jamba IL l6SS^for Pifjwy.
remember any parti-
[1100
lilts: but I GimK>i
ir» it U $0 long- a(;ro.
' C, J. Ev^ry boiJy ktiaws this, van g^ye
Nan*ativc m to tlie House ofCommous
Imise of Lords too.
Ay, and it was a true one ; but my
}e?oni»(iire<, 1 dfsireyiKvr iordship would
to gi^e the eoiut and tbe jury an
Dt, witb ivliat credit I uits received io
three parliaments your lordship sat us
nbcr in.
I, of Devonihire. 1 remember that the two
unioiilei' parliaiiTCntsurttt the Long Parlia-
vt^ were so sati&ded wUh the dlscuvervt that
fey passed a Vote in the House of Coni-
DS^
C, J. The Votes of the House of Com-
i are no **vi deuce at all,
tf^. Tliey sbeir what opioioD the par!ia*
i wiis oi\
__ C\ X Ulanv Tf>tes that have been made
Ble, I hope will neither be evidence lor, nor
; in prai'ttce attain,*
1, of Dcvifmhirf^ My lord, it is well known
kil tbe M arid tlie vote I speak of
C J. NaVi "ly l<^rd, I 8 peak not to your
sbtp; for w« utl know those votis ihHt 1
*: of were not aceordinjj to yotir lordsbip^s
nd : but we only say thus in g:enersil| thsit
the House of Com mens cannot |t»-ive
t oath,f therefore what is done there, is not
It evidence here, or in nny court of record,
Vaict. But, my lord, that I must urge; I
Lnerceivtf that in the time of parhament, and
^n|f the sittini^ of the Hou!>e of Commons,
iliave been iiroug-ht in as bars to the pro*
jiinffs of inferior courts ; and this court A<yes
\ \o3k upon itself as su|M2rior to the fpreat
i of piriiameut : and then if tbey may be
J, Which thev cannot be, nor never* therefore it is hard measure, that i must b^
e, nor I am sure ought to be ; nor 1 hope
er will be as long* as there is any justice m
\ Ddtion.
tet. But, my lord, you will allow the Rc-
i of the House of Lords to be evidence 1*
, C. /, Yes, I tell you, I will, and for that
tm, because tbey are Records out of a
t of Record : an order of Court- Baron is
idencse, because it is no Court of Record ■
\ Jud^ent of a Court- Leet is evidence,
ause it is aCourtof Hecord ; and thcre'sthe
erence,
7atn, ]\Iy lord, I call in the next place my
\ of Ang^lesey^ if ht- be in court.
' C J. No, he is not here,
aU$. Pray, will you give me leave to call
f Lord Keeper thetj t
~ ,C. J. fie in the Court of Chancery,
er ray Lord Keeper be there.
See Peake's Compendium of ttit3 Laiv of
iidence, ch. 3, s. *i,
\ See Hntseirs * Precedents of Proceedings
In ihe House of Commons,' ^c. toL 3, title,
House of CotQiuons can ad-
Cfjer. No my lord, he is not ; he's gone.
Oates* He was subpneoa'd, my lord, and %,
can have afh davit made of it : he wa^ a toat^,
rial witness Ibr me-
X, C» J* 1 ciinnot help it ; he is not here. \
Oates. Pray call my L*jrd Chief Baron.* ,
L. C. J. Go one of you into t he £\cbequerw
and see if my Lord Chief Baruu be there, ana
tell him, Mr. Dates calls for him.asa witnesf.
Oal cs^ A n J M r. J ustice Levinz .
Cryer, The courts are both up ; and they
are all gfone.
Gates. They weresubpccnaM, 1 am sure, tobv
here ; well, go and see, whetl>er they are or no^
Z.. C.J, In the mean time do you call soj
other witnesses.
Oaifs, 1 calt my loni chief Justice Jones.
L, C, J, The cryer is gone to look for IhB
judg-fs.
Unlet, Then I call my lord of Clare.
L. C. J. Here is my lord of Clare.
Earl of Clare. My lord, I can remember
nothing, it is so long time a^o,
L, C. J, My lord of Clare saysi he can re*
member nolhioif.
On let, 1 only call my lord of Clare to ask
him one 4|uestion, which I hope hts lordship
will remember.
h, C. J, Swear my lord of Clare. [Which
was done]. Wdl, what is it you ask my lordf
Gates, My lord of Clare, the i^uestion I
wqM ask your lordship is, with what credit I
was received io the House of L^rds upon my
discovery j and that you will to the best of
your memory, jpve my lord and the jury an
account, how the House of Peers proceeded
upon my evidence ?
Earl of Clare. Truly, my lord, I cannot
§five any account, it is of so long standing.
Gates. It is a great while affo, my lord, and
brought to this trial so long^ after.
L. C. J. If it be a long time, we cannot
help it : we cnnnot force people to prosecuii
sooner than they will do.
Gates, 1 desire Mr. Baron Gregory may \m
called.
L. C. J. He is not here, bat see and call my
brother Gregorys ; I hear they are all together
in the Treasury.
Otttci, Then I call Mr. VVilliama,f that wai
8{»eaker of the House of Commons.
L, C. J. Here is Mr. Williams. [He wag
sworn.]
GaleSi I desire, Mr. Williams, because yo«
were then Speaker of the Commons House of
Parliament, you woultf be pleased to tell what
\mt remember concerning the credit I received
in that parhnment, in which you were Speakarg
U[»on the discovery I made oi the Poptsn PIot|
aiid particularly as to the consult of Jesuits to
kill Uie late king in the month of April 1678*
1167] STATETRULS,lJAMB8n.l685^7H«;4^1lfwOMc^
'Mf. Wiliiami, My lord» my rnemoiy is
Mfrer very good ; but es|iedaUy in a case that
til
» al sach'aTlistaiice of time, and which coD'
aists of 80 many particiilan as this, I mean
Mr. Oates's disco?ery. Bat this, my lord, I
do rememl>er ; he was examined at the bar of
the House of Commons, and ga?e a k>nff ac-
coimt : hot it is more than any man can do, to
tell every particiilar that is said in that House.
JL C.'J. Was he upon his oath, Mr. Wil-
liams, at the bar of the House of Commons P
Mr. WifJiamn, My lord, he f» as as other
ineh are, that are examined in the House of
Commons.
' L.C, J. We aU know it could not be upon
Mtfb, they have notpovrer to give an oalh.
Mr. WiUianu. What reputation he was of,
f cannot say so wdl,- as what their proceodings
did testify.
X. C J. Nor in case they did believe him
never so much, is it any thing to this question ;
which is, whether he swore true or false at
Ireland's TVialP
Mr. Williamt. My ilord, when a person is
iNtnight to the bar, there to be a witness in any
cause, every body is siTent, and the witness is
lieard what ha has to say ; and so was Mr.
Cites. When he had done, he withdrew ; but
what the opinion of the House was upon it, I
tnost snbnut to their Votes and Resolutions.
X.' C. J. Which, you know, Mr. Williams,
•TO no evidence.
V Mr. Williamg. That I must submit to the
4ioarC.
Gates, I desire my lord of Clare would be
pleased to tell, if he remembers, what credit
tlie House of Lords gave me upon my dis-
covery.
E. of Clare. My lord, I do not well hear
Mr. Ontcs's question.
• Gates. My lord, my question is this, When
I was brought to the l>ar of the Lords House,
wliether 1 did not receive the thanks of the
Lords House ft>r my discovery ?
E. of Clare. Truly, Sir, at the beginning
of the discovery of the Popish Plot I was not
in town, nor in the House.
L. C. /. But now, Mr. .Gates, 1 hope you
are satisfied by the answer that is given l>y
your own witness, that what is done in the
Houlto of Commons is no evidence; and I
would have you remember that is the reason of
it, because they are no Court of Ileeonl,*
and because they cannot so much as give
an oath.
Gates. My lord, I see my lord of Hunting-
don is here ; and though I did not subfKcna
his lordship, nor designed to have troubled him,
yet bein<^ here, I desire his lordship would give
an account what creflit I had in the Uoq^ of
Lords up(»n my discovery.
- * See in this Collection a Note to the Case
of Shirley and Fagir, vol. 6, n. 1191. Mr.
Hatsell, vol. S, c. 4, states a douot whether the
Commons Journals are publio Records. Hee
M Notn to Filzharria's Caie, vol. 8, p, 336.
)Mi
L.C. J. Swear my loci of
[Whkh waa done.]
Eari of Bmmiingibm. I do MleMS my k
Mr. Oataa'a ditoorery firand a gvod motiflm
the House of Lords; butitwaagimndadai
the opimon, that what be said waafnw, aod tt
he was an honest man ; for w IIk House tl
accounted him to be: and iipea thia it i
their lordehipa gave cradit ta Ua tcilinM
And indeed had Uie matter been tnie» it wm
high importance to have it thoroi^y a
mmed: But ainoe that time it ben^ aMiH
there were ao many and great cott£rafcii«
falsities, and perjuries in hia et idcoee^ ap
which so much inaooent blood hath been A«
I believe a mat many penona who werete
cemed in tEe triala of tboee mdomnataw
are heartily afflicted and sorry Ibr their dm
in it: And I ^o belie?e moat of the Hoom <
Peers havo altered tl\eir opiniMi, as H ii
man's credit; and look nponhiAvideoeMi!
do, to be very lake.
L. C. J. Do you hear him, Mr. OatasF
Gatet, No, my lord, I do not very wei.
L. C.J. Then,mylordofHuntmgdoB.tH
your face to the jury ; and say what yoo a '
to Us over again. [Which hia lonbhip did
tlie same effect.]
Gates, Yet J well, my brd.
- Just. Withins, There's your credit with th
House of Lojrds, Mr. Gates.
Gutet. My lord, I called you in to aBM
my question, as to somewhat that is pait, m
not to give your judgment how yon are nda
to believe now.
X. C. J, Nay, but with your favour, it wj
to declare what opinion the House of Lords is
of you ; and he says very well, and that thiii
in truth the same answer that must be gin
for the judges and the juries that tried the pen
t)lc upon your evidence. Says ray lord \
rluntingdon, at first truly I md believe Mi
Oates did swear true, and 'he had credit vit
nie, and so Ite had with others ; but now opo
t'uilher examination into things, and in prooa
of time discoveries have been made of the troll
and that what he swore is false ; so that wnt
believe in my conscience he is actually foi
sworn, and has drawn innocent blood upon tb
nation ; and nobody will believe a word b
says.
Gates. Well, my lord, I have done witba;
lord of Huntingdon.
Just. Withins, And he has done with yon
as I perceive.
L. C, J. Yes, truly, methinks ye ifaab
hands, and part very fairly.
Just. IloUozcay. There s my lord chil
lijron ; what say you to him, MrT Gates ?
L. C. J. Is my lord chief Imron sworo?
Crj/er. Yos, ray lord, he is.
L. C. J. Then what do you ask him.'
Gates. My lord, I called yc^ur lordship, I*
cause your * lordship sat as a commissioDcr d
Oyer and Terminer in the 01d->Bsik^, at U
land, W hitebread and Lancbom*s triah; ^
that which I call your lorddup fyfp ■ la |l*
169]
STATE TBIALS, 1 James IL i6b 5. —for Perjury .
[1170
i account to my lord and tbe jury, of the j^h-
**actiim your lordsliip rctdva! eoncLruinif ilic
ness anil fairness of the evidenre tlit;w ileli-
1 by me in those trtaLs»
, C. Baron. My lurd, I canBOt charge my
ury with it,
L. C, X He says he enntiot remember.
U C, Baron. No, tiot in pitrlicular \ but in
Deral I rememh-er there were a gi-eal many
f>iis that )^vf evtderttie in those trials on
i one side antl l!ie «ther : There were a qfreut
jiersons Miat eame from Si. Oroers, that
s evidente there M' Mj. Oates being at St,
trs, v^ben he said he was in town.
7uUi. And what eredit were they 6i\ at that
e, prav, my lot*l?
[h C. baron. \ think they were persons of
eood credit ; they wer« gentlemen of
families;, many «>f tbenu
'Ja(<s. Did the jury beheve them at that
. C Baron, I cannot tcll what the jury did.
. C\ J. Nor is it any matter at all what they
But 1 mk yon, uly lord, but one nueation \
re you lieard thisi uvidenee that baf been
|en herv to day ?
C Baron. No, my l'»rd^ I have not.
C, J, If you hiid,'l would then hare ask-
J vou, whether you l^elieve him now or notf
iv C. Buron,. Truly, mv !ord^ I never had
any great faith m him, 1 ilo u&Hure you, as to
myself.
. Jii/st* Withim. Voti hear what he Kays^ Mr.
v; you hatl nefer any great credit with
7nin, My lord, I am not ut all eoncerne<i at
1 value myself more upon my own inno-
Hcy and iutej^rity, than any man's gtwd or
" opinion whatsoever.
C\ J. Ay, your innoeenry is very gfreat !
«/ff. Then, my lurd, 1 wdl conclude my
dence,
Ut, Geu. My lord, before Mr, Oates gfoes
kflutii up his evidence, we have lo me other
dence lo tfiwe.
L C\ /, VVhat say you, Mr. Oates? Will
I call any other witnesses to this point ?
7ai€t. My lord, if thty bring an}' othpr evi-
1 hope I may baye my luru to an-
il.
L C. J. Ay, truly, if tliey brin^ any new
deuce that you ii;iie not appriett lo already,
forbid ihul ymi should not he heard ; bnt
if It ouly gives an answer to the evidenee that
hms beeu given, tiieu yon must not retort on
them ; ff|r they are to have the lust ivord ; but
; not fit withal, that you shoubl be denied
r tbing- that is necessary or really of advau-
► to you,
7ijtcs. If they ofKjr any new evidence to my
eputauon, the cjiie4»litin is, whether I may
fe a time alhitted me lo make my defence
ftin^t that evidence ?
C, /. Ay, ay, in God^i name, by all
ia*
§tt. Gen, This IS the usual method of pro-
iio^s ; hut I noujil know if Mr« Oates bat
VOL. X*
any more witnesses to examine to Ihiji point*
that h« basexaniinerl to already?
Oatcf. My lord, I tlunk I have no further
evidence at present, till 1 bear what they fu
ther &ay.
Ail. Gen. TKien may it please your lordship
and you gentlemen of the jury— ^^ —
Oates. I hope when your lordship sums up
the evidence, you'll rememl>er what has been
said by the wituesscs.
L, C. J. Vou may assure yourself, I will
remember uhatsoever has l>e<'n said on the
one side and t*oliier, as near a^ I can r the ^en-
tlemeu of the jury are men of undet^tiindinsr,
and I see they take notes, and Til give Ihem all
the assistance I can,
Outvs, Truly, my lord, I have some mora
witnesses to the same purpose^ if your lordship
please to spare time to bear them.
L. C, J, Ay, ay, we sii here to hciir the wit-
O^sses, call wboni you will.
Odtti. Is my lord Lovelace here ?
L, C, X 1 cannot tell, 1 do not see him here;
but you did call my brother Gregory, there hi
is, what s»ay you u\ him ?
Outts, Mr. Baron Gregory \\»s Speaker of
the House of Commons m one of the West-
minster parliaments.
L. C. J* Swear my brother Gregory.
[Which was (Jone.j
Oafct, I desire your honour would be pleas-
e<l to •rive this court aud the jury an arconnt,
you being- Speaker of the House orf'oinmtius,
what credit I received thei« in thai Hou^e upon
my diseovery of ihe popisli (ilot?
Bar. Grti^oty. My lorci, that i« a pretty ge-
neral question, it is not possible for me to re-
member the proceeding in the House of Com- •
mons 8o Uw^ affo.
L. C\ J. But, brotiier, I tell you what hi
means by it ; he would have you to an*« ei
ibiii qufstion, whether he was ot'good credit in
the House of Commons, or not?
Bar. Gregorif. ] know not what answer to
make about the credit be there had ; any mem*
ber 6f the House of Commons may give at
q^ood and better an account in ihat matter than
1 ; and truly 1 do md remeud>er that Mr. Oatei
\%hs l*e fore the liar of the House when 1 wai
Speaker : I believe ti was before I was Speaker,
that he was examinef) at the Coiutuun» bar,
L. C. J, Well, be can remember notbiii^J
of it.
Oufts. Fs my lord Lovelace there ?
Crj^er. He liaa Imtcd called^ but be it
here.
Oates. Call n^y lord of Stamford.
€ri/er. Ife is not here.
Outes. Call sir Francis Winnington.
Ctj^er, He is not here.
Oaiej^ Call Silai Titus, esq.
Cryer, He is not boie.
Oaies, Call sir George Treby,
Crif't, He is not here.
Oatei. Call sir Francis Peroberfon : thoNTj
have been all sul^icena'ih
Crt/cr^ He ij* Qot here.
4F
1171] STATE TRIALS, 1 Jambs IL 1585.— TVmJ 0fTHmM Omiet, [UTS
V Oates, Ifl my lord bisbop of Looilon ? *
L, C. J. Here is my lord bishop of London,
pray swear my lord bishop of London.
. [Which was done.]
Oates, I beg your lord»hip, if you can,
would gire an account of your remembrance
in this matter : your lordship was often in com-
mittees of the House of Peers al^ut this busi-
ness, and from first to last you were in the com-
mittee ibr further examination of tlie popish
ert ; and you were not only of the committee,
t you also sat as a iMiron in the House. I
humbly beg your brdship would please to tell,
■s fiir as you can charge your memory, whit
reputation I liad in the House of Lords, where
I was upon my oath ; and in particular, whe-
ther vour lordship remembers that I received
the thanks of the House for the service 1 had
done for the king and kingdom in the disco-
▼CTV.
Just. Holloway. It is a long question, my
lord.
L. B. qf London. It is so, my lord ; but mv
answer will be very short : for it is a very little
I can remember afler'so great a distance of
time, and the transactions. have been public;
nor can I acquaint the court with any thing,
but what is known already ; and that is this, I
remember that the plot was discovered by him,
and his discovery was received as evidence at
Ihe bar of the House of Lords, and believed,
and the thanks of the House were given him at
that time for it.
i. C. J. There's sir Geor^ Treby ; what
do you ask him ? But first let him be sworn.
[Which was done.]
Oales, Pray be pleased to ask sir Geoi^e
Treby, who was chairman of the committee of
■secrecy, and was manag^er in the trial of the
lord viscount Stafford, that he will be pleased
to tell what credit I had in both houses upon
that trial.
L. C. J, I told you before, you must urge
nothing of that trial, unless you have tlie re-
cord here.
Oates. Then, my lord, I desire sir George
may give an account what he knows of the
correspondpncies between Mr. Coleman and
the See of Rome.
L. C, J. No, that will not be any evidence
at all in this case ; for that is not at all here in
question.
Oates. Then, my lord, 1 desire sir Georffc
Treby may speak what be knows of my credit
in the House of Commons.
L. C. J. Ay, what says he to that?
Sir G. Treby. My lord, I can answer for
nothing but my own judgment; 1 cannot tell
what credit he had with any particular mem-
ber of the House of Commons ; 1 do remember,
indeed, he was there several times at the bar,
but not upon oath, but as others usually are
there : and concerning the discovery, there \s as
a vote all the kingdom knows of, that they were
* Dr. Henry Compton, see ia this Collec-
tioa the Fh>ceediDgs agouti \iiiii| a.tt. V^l^.
satisfied there was a plot, bat wWlhcr ibt
▼Ota was grounded alftoeetber opm bis ev»>
denee, or how for upon his evMcnee I i
tell, nor what any mao thought of k I
myself.
Oates. I desire Mr. Sen. PleiiibciliNi nghft
be called again. — Cryer. He is not hen,
Oates. 'Hien pray call sir WiUboi Data.
Cryer. He is not here neither.
Oates. Then I call ahr Edwaid Mam.
Cryer. He is not here.
Oates. Call Mr. Richard White.
Ciyer. He is not here.
Oates. My lord, these were all fl^bMa^
but they will not come; tbey are oqgblei
away.
L\ C. J. We know nothmg of that, tbey
may come if they will.
dates. Call Mr. Thomas Cox.
Cryer. He is not here ; bat here ii Vr.
White.
Oates. I pray he may be sworn. [WUck
was done.] I deiired to know of him, wklhff
he were not a jury- man upon the trials if In*
land and Whitebread f
White. No, I was not
Oates. Then I am mistalcen ; I beg ywr
pardon for this trouble.
L. C. J. Well, there is my brother Dote
come now. What say ^6u to him? Swear Bf
brother Dolben. [iVhich was dooe.l .
Oates. May it please you, sir WiUittHi Dot*
ben, you sat as a ludge upon the Triab sf Mr.
Ireland, Mr. Whitebread, and Mr. Laofim;
^and I call you, sir William Dolben, to giitii
account to my lord and the jury, what tnk
my evidence had at those trials, and how lb
jury was satisfied with it.
L, C. J. There is the verdict, man, ibi
finds the persons you speak of, guilty.
Oates. If that be evidence eooagh, I aniS'
tisfied, my lord.
L. C. J. Is not that better than hisopiiioi
to shew hovv the jury was satisfied ? Ay, Cf^
taiuly ; better than the opinion of all the twrivt
judges for that point; they would nothaTecos*
victcd them except they had been t»Md
with the evidence.
8ir W. Dolben. Haveyou done with me, Sirf
Oales. I have. Sir.
L. C. J. Have you called all your witacfls?
or will you call any more.
Oates. No, my lord, I will call.no moR it
present.
Att. Gen. Then, my lord, we willgiM
with another oart of our evidence. GentloBCB,
you see Dr. Gates, to support his credit. Ins
i;iven two sorts of evidence ; the one is, sow
records of trials at the Old-B^iley, wbcroD bi
had the good hap to be believed ; the other ii^
several noble persons, and other gentlcaMB ai
to the credit he has had given to his evidcMi
before. What they have said I shall not mi-
dle with at all at this time, but leave theskso^
vations that are to be made thereupon, tiO^
come to sum up the evidanoe for the fcii^*
liut aa to the first part of Jbii cfiitooi^ thii«i
V
(ITS]
STATE TRIALS, I James 11, 3685.— /«w Prijuf^.
I
to the records profliicctl^ and I lie v* ntjctB
rein tpifCD. and ttie opinions of tU«*juJg««, we
^ve this io say in pfiint of evidc'tice iia an aii-
r. Fin.t» vrt shall protliice to 5011 sevcial
rdsy ivherejn Ke tins not been believed ; as
at of iir George Wakemao, arnl my lord
tleinain : and not only so, but we filmlt ac-
y prore tUai he was perjured in them ;
what he a wore against tht'in was utterly
, auil yon n Ul liear tliisi was not the tinfi
that lie had sworn false ; tor in an acrnsa-
tliat fie gave at a irlaJ al Ha&tini^sj, we ^hall
~ he Rwore hugqery upon a person, which
kved false.
Cat! you produce any such record,
'. Attorney P—j^rr. Gen. Ycs^ we shall.
X* C X Oo not interruiit the kingf^s conn-
I ; fet them go on ; you snail be heard quiedy
your time.
Sir. Hatut$. Nay, Mr* Oates need not be so
v%y as to ask for the rectirdfi^ hy degrees we
A produce records enough agaititt him.
(Jen. We shall prove also by the Jour-
Is of the liords House, that he did fursw*jar
imself; for after he had there maile a long
irrative oftbe plot, being asked, wh ether lie
any more to accuse than tliose persons
be bad naruetl, and this n|)on bts oath ;
id there swear that he had no more persons
!.» accuse.
Oata. That were members of that House,
it was.
L. C. X Sir, you mut^tbe quiet till they have
done*
Att. Gen. But soon after he bethought
m«M;if, and accuses the queen and htfi roya!
bne^sjs the doke, our now present sovereign,
being in the plot.
Oatu. What ph>t did I accuse tbetn of.'
C. X Nay, you must sit down and be
; how now, will you not let the king's
\ speak ? Yon were beard quittiy, and
ill they l>e too.
l<fi. Well, my lord, I will be quiet.
Gen. These things, ray lord^ will shew
M cre<Ht he was of at that time. Another
we say to these recortis, is this ; there
twootlier wkne«ses, Mr. Clay, and Mr.
besides those that were now pnKluccdj
were tl»e home*witrieiises, that did po-
rtly swear, that in Aprii and May 1(>7S,
was here in town ; he did then indeect
e use of those othi^r canting witnesses, ibr I
call thein any otherwise, that beat so
the bush, and speiik of uncertain ties^ ami
>ntradict one another ; hut those tbut ] nante
and Hinith, were ho me- witnesses ; and
lere lay the credit ot bis being in town* when
le witnesses, wliich came frojji HU Ouaers,
say^he was beyond sea.
Oatct. My lord, I beg I may ask one thing;
b«ther my Ion! bbhup of Loudon be there
ilL
h, C. X. No, my lord of London is gone,
Otttet. I am aorry for it, because he could
bave given ad acoount of this Sioitb, for he
knows htm.
An.
otsti
L. C. X I cannot help it, you thould bava
desired liiin to stay while be was here ; go od,
Mr, Attorney,
Ait. Gen. I will, my lord; and this wbicb
I am going to say, a^v ati answer to \m eviilence^
Will ^tve a futl aiL^wer to that other objection
which he made; which was, what was the
reason, when he had ^wen such an cvidooce
so long ago, It should be delayed so long ere it
was prosecuted, i 11 give your lordship a rea-
son, and a satisfactory one i Till those dis-
coveries \\e,ii made that have laluly been raadej
the evidence these witnesses (jave, canietl a.
proljability of truth in it; and sir bichard Barker
itimself added his testimony to it, though be
€*oes not think lit now to come and confirm it ;
I say hitherto it had some semblance of truth,
and so did balance the other testimony of them
that came from St^ Omers. But when we had
discovered that it could be testified by twenty
persons, that had not been at any of the former
triah, that be was eL-rtainly all that time at 8t.
Omeii; and whin we had discovered the lam-
jjering and practices of >Ir. Gates, in suborning
these wihK'^ses to swear as corruptly as he
swore at firsts which we shall shew you pal-
pably to bo true that he did so ; that gave ui
encouragement lo go on to niake enquiry into
I lie matter : but this w;is not disi^overed till
half a year ago, or thcreaWul^. Now us to
one of those wituessea, that is, iMr. Clay, the
case standi thn< : indeed I expected be would
have bn>ugbt the same wiluL-ssea he ditl then,
for I presume they are all ab<iut tovvn, but be
has not thought fit to do that : this Clay was
then a ]>riest, and a prisoner in the Cate House
for that very reason, as being accused for being
a Romish priest. While he was there a pri-
soner, Mr. Gates comes and threatens him, and
solicits him to «%ve?ir that he wtui here in town
in May 1678, that he mi;ihl be provided
t^ith proof against what the Ivoys of St.
Gmt-ra (as he called them) won I J conic to
testify J and threatened him, if he did not, he
woubl hang him, lor be coiihl swear him to be
a priest ; and tliis wits abuui three or timr
days before the trial of the five Jesuits: at
length they came to a bargaiu and agreemeoti
as you ^vill hear, that he should come and
swear this ; when Mr. Dates ciinnot pretend
that the evidence of Clay wns known at all by
dny of tl>e comniiitees that were concerned in
the management of bis discovery; or that be
was so much as (houijfbt of foi* a w imess. But
we shall prove how it came to piiss ; and I fte*
lieve, if Mr, Oattrs would call hiio now, (as 1 do
not <|UGslion he knows where to have him) Clay
would not be so harily now as to athrm hfi
former lesthnony. Then a.s iov Mr. Smith, liis
case stands thus i Mr. ihitirs had sworn hint
into the plot> as )ou wdl tlnd in his narrative
that he ifave in U|>on oath, whieh is ipon re-
cord, and entered in the journal of the Lords*
Hou<^. He was a scho^dmatiter in Islington,
and Gatea swears high-treasou against him,
and tb ere U[»on warrants went out to take this
Bnuth, and Mr, Galeae was v^ry violejit m tk*
I
I
1
i
1I75J STATE TRIALS, 1 Jambs II. l6S5^TVial^TUm$ CM«. [1176
purauit of him but two or three dajt before the Sol. Gen, Do yoa remember wWl bt unit
trial : and then, when all these witnesses from
St. Omers were come, as he knew ?erv well,
be was in some iloubt his design would have
failevi, and then does he prevail with Smith to
become a witness for him. And it is evident he
did tamper with him, for that which was done
b;' him at that time : for now he ^ives him
under his hand (to shew the impudence as well
03 villainy of the man, as it has been evident
fnoucfh in all bis carriage) a paper that should
give him authority to go free from all process
and arrests upon any warrants ; and this pro-
tection under 3Ir. Gates's hand, is directed to
|dl the king's officers, thereby commanding
them to take notice that this Mr. Smith, whom
before he had accused of being in the plot, was
an boncvt man, and employed in great sen-ice
lor the king at tliat time. This |iaper, when
produced, will shew the time when it was made ;
and then it will appear, that two days allerHmith
comes and swears, that he diued with him the
first Monday in May 1678. This was what
Smith swore then ; and upon my mentioning of
this practice, if he have any shame in him, it
must put him in some confusion ; for we are
prepared to prove by undeniable testimony,
that Mr. Oatea did not dine with this Mr.
Smitli that dav ; we shall prove it by the whole
family : but the first time ever Mr. thites came
Ihere, was in July after, when he came into
Bngland from St. Omers, which these witnesst^
any, was the latter enjl of June. Then it was
that he was with Mr. Smith, and came to his
bouse, and not before. And we sha 1 prove by
several witnesses, that upon the question being
asked of 3Ir. Sfnitb, h«nv he came lo testify ;
such a tliinjr ; Ijis answer was, 1 must have'
died fur it, if I had not done it ; it was only a
mistake in point <if time: but he threatened
me, and so diil some others, too, that he would
have me handed for being in ihc pliK, if f did '
not comply wiili him, aiul swear t hi «< for hiiu. ■
My lorH, f shall offrr tiiis evirientre that 1 have '.
op.-ntd, ;:nd then I h«';.rt we shall satisfy the ■
ji>r\, ai;d aii th;( \u ii his trial, that iit> is one
of the most i ijiorji.us villains that hvtv upon
the rarlli ; to be suiu that ever was kuoun in
tills kint^dcni. j
•Scj/. Orn. First, my lord, we v. Ill produce I
rur rec(»nls : where is the record of sir George ]
\\ akcman ?
Mr. Suiji. This is the rec*.rd of sir Georsfc j
WakeuKin, and tliis is a true (.*opy ; 1 ej^a- :
inined it. I
Sol, Oen. Pray, sir S'in.ucl Astry, road a i
\tord or two of it.
CI. (f Cr, II ore is an indirtnient against ,
sir George Wukenian for h i 15 h- treason ; he ,
pleaded not guilty ; and hero is an acquitlal bv I VVakeman
the jury. ' • w 1 ^- .
Alt, Oen. lie Ining acquitted, I desire he
may be sworn. ^ \\ bich was done. ]
•SW. Gtn, Pray, sir George Wakoman, was
Mr. O.ites sworn agatost you at the trial 7
fc^T O. IWiki miiu. Yes, Mr, Solicitor, he
against ^ou at that trial ?
Sir O. Wakeman, Yet, I do. Sir.
Sol. Gen. Was that true that be swoce, Vj
the oath you have takeo ?
Outes. Is that a fair question? i doiittbi
opinion of the court.
L.C,J. Ay! Why not?
Oat a. He was 'legally aocmed ; be ctuil
swear himself off.
L. C. J, But he is legally acqaitled too ; m
have a record for that here.
Oatet. Ay, my lord, he was aeqiutted; kii
well known' how.
Sol. Gen. Come, Sir, was that be tmn
against you at your trial true ?
L. C.'J. Wbat do you say. Sir ?
Sir G, Wakeman. It was false upm mj
oath, my lord.
Sol. Urn. ^Vhat particular! dkl he swnr
against you ?
Mr. PolUifen. Ay, pray tell the paiticafan
as near as you can, what he swore sgaiol
you.
Sir G. Wakeman, My lord, if your lonkyf
please, I will give a little account iibst hs
swore against me before the king and couodL
Sol. Gen, That will not do, sir George
Wak< man ; we do not ask you that.
1.. C. J, No, it must be only the evidence
that was given Ufton this acquittal, which btbt
record here produced liefore us; wbat dkl he
swear against you then ?
Sir O. Wakeman, He swore at that trial, ai
near as I can remember, that I undertook fur a
certain sum of money, 15,000/. as 1 think it
was, to poison the king, and 1 was to do it by
the means of the queen. I was to pi o« ide thii
pois«n for her, and she was to t>i%e it to tii«
king. This he swore at my trial, w hich God
forbid it should be true; nothing can be mure
false.
L. C. J. I ask you by the oath you iiau
taken, you are now acquitted, and so in w
danger; and being u|Nm } our oath, ou;;lit 10
speak the truth, without malice or dl-uill to
him that did accuse you ; was that he swun
true or false ?
Sir G. Wakeman. False, false, U|»on invMih;
I speak it without any malice against the muu
in the world.
Alt. Gen. Then swear my lord Castleuiaio-
[Which was done.]
Sii* G. Wakeman. My k>rd, I will be bound
to make it appear, that al| he bwore against uc
was fal>4e.
Att. Gen, And so was it he swore ac^aiittf
my lord CasUcmain, and others that wea* a^
quitte<!. at the same time witl^ sir Gi-un.*v
.S''. Gen, 'Fir.a, read the record of uj) l«nl
Casi!iuiiain's acquittal.
C7. if Cr. Here is the very record itself: it
was in this court my lord Castlemain ntf ii-
dieted of high-trcasou, and tried and ac^uitta'*
Att. Gen. My lord C-aatlemain, pny «W
did Gates swear against you at your W^ '
177] STATE TRIALS, 1 Jambs II. i6B6.—/pr Pet jury.
|id pray tell the tourt, wliefher tbat was true
f Ikfse.
[1178
I Earl ^f CnstlemQin, My lord, as near as I
nember, Mr* Dates did ^wear at my triaf,
that he mei me in Lincoln Vlaa- Fields^ aod
it he went with me someuhere to Mr. Fen-
jclt's chamber in Duke-8Ueet in Covent-
Litieiif where he said 1 did tulk a great deal
|[ treason, and a ifreal discourse uf tbat kind
\ said tbere was^ and be siwore that I was in
reral cal^^ls in reblion to the kind's <]tath.
|9raa a Acrward^* acquitted by live jury that
I me* oji appears l*y the record ; and here
ido declare^ as in the presence of God, and
Pith all the imprecations of divine ven^reance
\ falJ upon me, ii' 1 siieak any iKing but Ihe
Bth, tiiat not only that which he swore was
e* but that 1 never had any thoughts in my
%.xXj much less did ever declare in my words,
faay injnry or hurt agniiist the tate king:.
Dd D€?sideiJ, that 1 never saw the face of Gates
I my life» till atter I was put in prison upon
I accumulation of me.
\ Gates Hy lord, I desire to know what reh-
Dn that noble lord is of?
\ £arl of CastUmain* I am a Roman Catholic,
J lord.
L* C. J. We all know what religion my lord
tof, y'QM need not ask that questjoo.
Oates. That is not the pointy my loix), I must
liave it declared in evidence*
JUC^ J, I wonder to see any man that
f the face of a man , carry it at this rate,
hen he hears such an evidence brotig-ht in
ainst him.
OaU§. 1 wonder that Mr, Attorney will
to bring this evidence, men that must
Ife malice ao^ ainst riii' — ~
X, C. /. Hold jour tong:ue ; you are a
me to mankind. ^
Oateg. No» my lord, 1 am noithera shame to
self or mankind : what 1 hi&f c sirorn ta true,
1 will stand by it to my last breath, and
it, if occoi^ion he, with my blood.
L.C.J. It were pity bat that it were to he
«e by thy blood.
Oatct. Ah \ Ah ! my lord, I know why
Uiis iS} and so may the worlfl very easily too.
L. C. J. Such impudence and impiety was
ver known in any christian nation.
Oat a. But thiti will not do the work to
lake the Plot to be disbelief cd ; things are not
be done by great noises; I will stand by
le truth.
L. C. X Can you think to out- face such evi>
incc OS this with your impudence?
Optics. But 1 hope you will give me leave to
ike my defence.
L* C. X Then carry yourself as becomes
u in the court.
Oates, My lord, I will do so.
L. C, X If you do not, we know how to
lake you do lt> you shall not think to domi>
i€f here.
Oaia, My lord» I hope I da behave myself
p3 I ought.
L, Q. J, Noy you do nott
Oaie%, 111 language may provoke any man'a
passion, ray lord,
X* C\ J- Keep yourself within hounds, and
you slmll be heard ; but we will suffer none of
your extravagancies*
OuUi. My lord, if I had been aware of this,
I could l*ave produced evidence that would
have supported my testimrjuy in these matters.
L. C. J* Go ou witli your proofs, Mr. At-
torney.
Ait. Ctn* We will rlo &o, my lord.
Et.ofCasilemain* Have you done with me.
Sir?
L. C. X Uave you any other questions to
ask my lord Castle main ?
Alt, Gen. No my lord.
L. C. X Then your lorddhip may sit dowu
agfiin where you were.
Ait. Gen, Now, my lord, we slml) shew the
Lords Journal where it is recorded that he swore
he could accuse nobody else but those that he
nametl, and then we sltall give au account,
that soon aik'i\ he accused our present aove-
reiffnand the queen dowager*
Sol. Gen. Where is ihe clerk of the parlia-
naent f — yir,$&ifh Here be is ; Mr. Walker?
Att. Gen, Swear him. [Which was done.]
6W. Gen. Mr. Walker, in ihat the Journal
of the House of Lords i*
Mr. Wiiiktr. Yes^ my lf»rd, it is.
SoL Gen, I>clivcr it In to the clerk, an4 left
him read it.
X* C. J. Then you roust direct to the time,
or else it will he to no purpose.
Mr* Svift. Kir Samuel Astry, pray turn t#
Friday the I9lh of November 1678.
CL ojCr\ Reads. * Die Veneris decimo
• nono Novembris 167 B.^ Titus Oates being
called in at llic bar, tlesired to be heard a lew
wortls before he was sworn—
X* C. X Mr. Attorney, 1 doubt this will not
be e V id e nee : 1 1 is on ly a jw^ jc r of w h at he tiaid ,
taken before the Lords ; but now, « hether that
was upon oath or no, is the question : nay it
appears it wa& not upon oath , but says, it Was
bciore he was sworn.
Ati. Gen, My lord, 1 desire it may be read
all out.
CL ofCr. Reiuh. Titus O.ites being called
in at the bar, desired he mi^ht be heard a lew
words before he was sworn to .<(peak to the main
business : wliich being ^iimted to him, he
complained of the restraint he la nmler^ and
being debarred of the liberty of his fi ieofls
coming to him, and of conversing with any
bcjdy in private, and that no Knglishman ought
to l>e restrainetl, unless accused by one or more
witnesses ; and prayed that the restraint might
he taken oJf, that he might he enabled to give
his evidence more cheerfully, and tliat the
House would be pleased lo «iddress the king^
for that piir|M*8e, and I hat his pardon may
he renewed, because lie is under nn.<iprision of
treason. To which the Lt>rd Chanrcllor toM
him, tliat the House would take his cooditioti
into consideration : and then being sworn, he
was told by the Lord Chancellor^ th^tthe Lords
I
I
«
i
ChanoeUor shoold teU me hm, aj Mi
DMmWt thai vov. ky tirtM if Ihi
givea /•«, ■bmU cmm «ii gpH
&ctioo as tD oUier aiiailMia» 1 InH
that wmikl aot be evidence in . W< -'
ball: letqsnotatretdiaiiy
ttfhonklbeiipenaByaoeoai
rappoee I give yon >n eatn l» nnke tree »
swer to fuch qacitioiie ee I ifaall Mk ym.
ooDoeraiDgwhal waawidJiltlieSaiieea-hMi
at Midi a trials and tbeDloome alWrniidi
yea upon the oath y^u liay* taken wte dt)#
•ay conoeniiag nioh a horineia eevcn pm
affOy would that beevidcnoe P
An. Gm. Wkh tnbomien. sy ki^f I
manbeloldheiatipon bam oiiln,ioii^ dill
knowtof tooh adeoga, what Im aayt ^tk
that eeth it evidnoe.
L.G.J. Yea lay very true, MnAimm
ifl give hivi a general eath; bnlwhafthtiM
eencemiag an^f other matter tinn ABt|»
calar tbinff which be waa ewom la gmtt
account of, can never be evidenea.
Sol. Gen. Traly, m^ lord, I think wtH<
•och a tbmg aa this la. '
i think ilk
J170J 8TATETRIALS,lJAlcitILlCSS^lWil^7lteiOWkib flin
baftti«Oflived;anAddreM finom the Howe of
CoromonB in part upon evidenoe by him eiven
theret and. that the Hoow ezpeete he enoold
giftt an aooovnt what that.ia» which has begot
•iicli astomihment in the Home of Commons
as is expressed in the Address. Upon which
Titne Oates said, that in J^ily huit» he saw a
letter ftom sir George Wakeman.-*—
JLC.J. Is this evidence, Mr. . Attorney r
JLU. Geni, My lord, the use we make of
it is toprove tliat he did accnse tfaeeoeen.
jL C. J. . What is the accnsstiQn i>f the queen
to this purpose P
Mi. Gen. My lord, we say he had swovn
sevend daysbelm, that he liad no other per-
sons to accuse.
X. C. J. You should produce that first, that
beeworeso.
Ait. Gen. My kwd, we shouMso, I tiiink,
asri I thought ithad been so done.
lt.C.J. This is no evidence, for it is not
upon oath ; it does not say so.
Ait. Gen. Yes, it does, my lord ; but we
will go on in order.
JL Cy, J. Come them, let us see what was
fwom about his having no more persons ID
Mi. Gen. Pray, or Ssmud Asfary, k>ok
the SOCh of October 1678;
Cl.cfCr. Reads, Die Mercuni 30 Octobris
1678, IHtus Gates, being called in, was sworn
at the bar, and required to answer to what he
is now called in for, concerning his. discoarse
with the lord Annesley last night about the
4ukeofYoriL
L. C. J. I doubt this wiD not be evidence
neither ; for we are now speaking only about
what shall be evidence : we are not now
meddling with the methods of the House in
their examination of witnessea, but what is
evideuce here ; suppose an oath be adminis-
tered to me for a particular purpose in the
House of liords, that I shall answer to what is
asked me concernining a discourse that I had
with a third person.
Att. Gen. Pray, sir Samuel Astr;^, look
the next day ; for there, my lord, he is exa-
mined upon the general.
Sir S, Astrj/ Reads. ' Die Jovis 31 Octobris
1678.'
Att. Gen, But first read the latter end of the
former day's proceedings, beginning at those
words, upon consideration.
CI. of Cr. Reads. Upon consideration of
what Ijtus Gates bad said, be was called in
3 fain, and told by the Lord Chancellor, that the
ouse has directed he shall be heard a^ain to-
morrow at nine o'clock, aud the Lords do ex-
pect that by the oath he hatli now taken, he
should go through with what he hath to say,
and therefore he should prepare himself to de-
liver the whole truth of what he knows con-
oeruing the d^ign against the king's person,
and the government tS'this kingdom. /
L. C. J. fiut stiir, Mr. Attorney, we are hot
where we were ; tor supposing upon my exa-
nuMUion upon oath given mem the.Hoose of
I
not labour in
X. C.J. Truly, Mr.
no evidenoe at all ; if yon am prove ke «■
sworn to his whole Narralive» and em Inf
any thing eut ef that^ you say nnmetfimg.
Att. Gen. We desire thai my kvderMh»
ley may be sworn. [Which waa dona.]
L.C.J. Whaldoyon askbimr
Att. Gen. Pray, my k»d| will you civf At
court and the jury an account, whemcr Wit>
Gates was not sworn to his Narrative, sad de-
livered in his evidenoe at your kwddiips' ki
uppn oath?
. L. C. J. My lord of Berkdey, let bm «k
you this question, was every thing that befvt
an account of at the bar m the Lords' wm
given in upon oath ?
£. of Berkeley. I cannot lemembsr M
my lord.
X. C. J. It is impossible that he sheeki.
£arl of Berkeley. All I can testifjr ii Wt
what I answered to the question whidi iM
asked me at my lord Stafibrd's trial.
X. C. J. But that is not matmrial now, mf
lord, because the record of that trial is nnC iMfa
£. oi Berkeley. The same
here particularly.
Att Gen. Mj
read again.
L C.J.
L C.J.
cular purpose
ment, that he was afterwards sworn lb the f^
neral matter ? No, I will not : >op|^ isv
tiling had happemd afirrwarda that it sbssii
have been thought fit to prosecute Otkil
could the man have been convicted of peqs^
fortliis? Certaiuly he never could.
Sol. Gen. Well, my Icml, wf onkasiljtti
you; but we will now go on topte^etlisl sMa
Mr. Attorney opened, that Oalie ^ t^^*^
these witnesM to ewearwkcilkiiy Mfvtfrt
ly hNPd, we deeire it msjW
Read it sgain with all my bsMi
This ie a partknihu- oath to a psrti-
ose ; and shall 1 help it by ialcsl-
»]
STATE TRIALS, 1 Jame» 11. l685.-/cw Perjury,
[1182
fit.
7ata.
r record i
jatei.
siion,
Mt€M,
h«Te bid one part of the evidence that
ihen given ; now we sbaU prove that Clay
•warn at Wbitebrend's trial, and ubat he
**ere lestity about *>iite8'» being- in town.
Us, I own it, he was swore then.
Gen. D<i you own that you suborned
— Gates, No, 1 think not, Mr. Attorney.
Gen, Then we w ill proTe that you did
r with bim, and by tbrcatcningB pre-
with him to gwear tor yon.
Gen, Nay, we w ill prove that he was
en in what he did li^iear a wholt year.
calt Mr. Charles H^wanl.
My loni, 1 desire I may liare teft?6
IK the court a question, and 1 . tiet^ the opi-
of the court in it, whether a Popish re-
iQt convicted » may be a good witness f
C. J. We ore not bound to answer your
"on ; for we see no ground why 'you
ask it : if yon ha?c any occasion to
against any witiiess, and can pnxluce
Dord against him ; then we u ill fell you
of our minds.
L Pray ilien let me ask you another
I, my lord.
'. /, Priihee do not trouble us with thy
IS, l«t them go on with their evident^.
My lord, ] dt'sire to know, m hether
in confers in rr himself a Popinb priest-
L. d J. We do not sit to answer <*very idip
question; it is nothing at all to the purpo$<> :
when you ask a proper question^ we will an-
. diwer it.
^KOo/e!s. Yes, it is, my lord, and you are my
^Binsel in matter nfl aw,
^^U«. C. J. ] am not so.
^H/0iey. Yes, my Jonl, the court is always of
^Mtnstrt for the prkoner.
L. C. J. That were well, indeed, if we were
bound to give ail vice in every cas«, where a
Wum is pni9ecnte<l at the king's suit: indeed in
those cases where a man can have nn counsel
aJlov«ed him, the court is of counsel lUr him ;
kut wher«^ht may have counsel, the judges are
IK4 tif c(»niisel torhrm.
Just. H(Utoum%f, Besides, we a^^ not here
futtingof cases, but tryinj,^ of a c^nse.
SoL Gen. Here is Mr Charles Howard,
■wear him. [Whi(;h >Tas done.]
Aft, Gen, My Jard, we bring this gentle-
iBftn Mr. Charles Howard only to this part of
#ar ef idvQce, to prove that Mr. Clay was mis*
tmk^n Jl whole year ; mistook 78, for 77.
X.. C J. But, J>Jr. Solicitor, if you take this
eon fused method, we shall never 'be at an end,
and for my uart I cannot make any thin^ of it ;
k is impoiisible lor me to ri^tain the<9e things in
Memory, so as* To give any direction to the
jury I if there he not a nicihod used: fordo
you think that it i^ jHifisible iat a man to retain
in bis bead a hundrt'c] things huddled up and
down without any order ? '^
Sol, Gen. We beg your loi-dsbfp's patience
bat a httle while, and we shall have it in very
fBOod order. Swear Higgins. [Which wsi
dooe.]
X. C* /< Pray what do you ask him f
is. Swear my lonLl
AtL Gen, The matter we examine him to,
is this i for 1 would open to you the oature of
our evidence : fir^ be swore Smith into the
Plot, and then gave him a oertigcate, that he
wst5i an honest man.
-L. C. J, U that Oates's band ?
Att. Gen, We shall prove ii to be so,
Xr. C. X Vou must tir^t prove what heswor^j
of Smith. I
Alt. Gen. My lord, we desire that wcmay^
read his Narrative.
JL. C. J. But finst prove it, Mr. Attorney,
Att. Gen, U is upon record iu the liouse
of Lords.
L. C. X Was that delivered in upon oatli
the House of Lords f Or else we shall be ha
where we were,
Att, Gen, For proof of that, we call my
lord Bridgwater.
L. C. X Htre he
[Which was done.]
Att. Gtn, My lord Bridgwater, do you re*
mtnibcr the Narrative tliat Oates gave m to the]
Huus- *ir Lords, and was vt upon oath ? Buli
^rstot all, if yon pJease, I desire my lord mujl
see the tMKik, whettitir any thiug he ther«ij
under his hand, and then, whether it t»e en-
tered lo be upon oath, and whether this be tho I
Journal agreeing with ttie paper ddivered himf 1
L, C J. This is a Narrauve, my lord, thal»
he huiiself ddiveted in, and I would ask my J
lurd Bridgwater this one question. Was m '
this Journal compared with the Narrative j^ive
in upon oalh hy order of the Lords* House,
Eail €f Mr %dg water. Yes, I must say J 'wat'l
nun olthe committee appointed to take care of I
the Jonrnal, and litre is my hand to it amons^l
other Lords, and that is a co]>y of wfiat Mr,
Oate.'^did deliver in as bis Narrative, which wag j
instaed upon n Jic}mrt ol the Committee into j
the Journal Bof>k by order of the Lfvrds, and I
wc did examine the Narrative with the book.
L, C. J, But what is all this to our purjioie-l
now ? Do not mistake me, my lord Bndg* [
water, I do not speak lo you no^v, but to Mr^ i
Attorney ; w hat does ihi* prove as to the matter j
iu hand ? J
Att, Gen, Pray, my lord Bridgwater, diitj
you see the Narrative, brought in by Oates T
E. of Bridgwater, That Narrative was de-
livered to us hy the clerk of tbeparliameot*
L. C. J. But n^ lord, do you know thalj
Narrative was given^in upon oath ? f
K. of Bridgwater . I know no other, hut thai j
tlie clerk of the parliament brought it to us.
Ait. Gai, Here IS the clerk ot the parliament
will t«ll you that Oates was sworn lo iu
L. €, J, Prove it if you can ; bat hitherto
1 see uothiog that looks hke evidence.
Att, Gen. H«illy, rny lord, I should take it I
to be as much evidence as any that was ever
ofl^rcd m the world*
L.C, J, Pray, Mr. Attorney, letns reason
the point a little': t^appiwe you bring an Ansiwer
in Chancery, exeqH the man he sworn to it, -
can you read his Answer? and yet 1 over look*
od upoQ mi Amwer in Chancery as evidence
I
I
I
STATE TRIALS, i Jambs 11
Ati. Gen. Ii\ thai ca*e tlie record proves il-
i^lf, (itiU so it fihouM here ; ami ihcviror? \vt^
tJi'sire it iiTttv be read,
L. (J, J. Hut surely voii would not allow an
\nsiver to ha evidence, unless you |*vu* »♦ it to ]m
ibwurn.
Ah. Gfn, Truly, rny lord, I always todk U,
tbflt we need not come to prove a iiinn was
actually swom to hi^ Answer ; hut d' it he
ooce c«iere<l itpoji rt<rord in chaneejy it proves
ilself.
L. C* X tt is trnei Mr, Attorney, ifit apiiears
tipon r«x>rd that the Answer was s^worti.
Aft. Gen, My lord» if this Joiiinal of the
Hoii&c of Lor^ljj is a record, then ihui which h
entered itno it» ih a jrecoril ; it is a thin^ i-Lx,'orth.^l
m» a deed enrolled is, and proves itsell. i
V L, C\ J. 31r, Attorney, either tve iinstike 1
tme another, or we do tiol differ in o|>iiiitm. If j
you eguld make it ap[>eiir that Gates hroili^hl 1
this thinjf ill the House of LnrdK» and dehvtred |
it upon oath, that were ef idence ; otherwise *
I cannot see how you can make evidence of it.
Att. Gen. I alw"ays thought, tny lorU^hat a
record out of a court of record ^ wouM hoTe ihiit
*;reiht in another court of recurd as tfi be read.
L, C. J, My lord Brid^rrwater tellii you, it
was delif ercd to them by the cietk of the pnr-
liainent.
Ati. Girt, Pray, tny lord, let the clerk read
ii'hat is at ihe end' thereof,
Ci.ofCr* Head*, Hitherto examinetl the
3d of iJeceiiiber, 1078, The Narrative and Ex-
aixunaliou of Tiius Outes b**ing (ir«t inserle*!,
accordinijrto the order of the House, of the 21st
of Novcuit)er, last, hy tis Anglesey, ^c.
Att, Gen. Pray read tb« order of the aist of
November ,
CL qf Cr, Reads* Die Jovis *21st of Novem-
ber 1678. Ljion report made hy the earl of
Brid^'waterJ'rom the Lords sub-committees tor
tbeexaminiug the Journal ofihb House, That
upon examination thereof, their lord.ships Bnd,
that the Narrative made upon oath liy Titus
Dates, at the bar oq the 31st of October last,
of the hornd desig^n ag'aiiist his majesty's per-
son atid cT'ivernment^ is only mentioned tn the
Jotirnal, btil not entered at larij-e in such
maiutcr ax he ihuo related tt ; and that there-
fore I nor lordships destre the direction of the
Rouse coiiceriiiTit»:thi8 matter t It is theretipon
onlered, that the said Narrative made by Ttlus
Oatcs on the said iJi^st of October shall oc ^n-
lered at larg-e, and m-^erled in ihe Journal, as
f;nrt ot ibc bu&m&ss of th;it day.
L. C. J. Mow you n take it evidence ; for it
appears that be was bvvorn^ and gwe his Nar»
ratiie u\Mn oath.
AtL Gen. ThtMj now, ray lord, I bopo we
may read ii.
A*, C J, \y^ read it.
Att, Gen, 'Read the 54th artieh\
CLo/Cr, Heails. This is the Xurralire of
Tiluis Uttlen, the ^4lh Article, Thai one
I^Iarihew >leiUiiirne, a player in (he duke'w
theatre 9 one Mr. IVmiy, Wr, Maimouk, Mr.
Sharps, and Mr, JSaUdon ; ami one \V, fSrnSai a
• \6^5,^Triml isf Tdus Odes, [US
School-magter at Isltngfton ; and oneE.Ef^
and others, meet iti a club on Tburvlat 1
and Sunday nights, w jili ooe J<»i€sa |
one Keymash within inetitioiied : and till
peitfons are emph»yed hy^ the Jesuits, to? ih^
the House of Cotnrnuus, ajid lo go
city to incense the per»|ik^ a^iostl*
attains! the bishops of ilie nation;
dehv i-r this treasonable positioti. That t
mons ax^emhled iit [larf iatiietit are I
representatives, aud imt the tia4iuit*s ]
treasi3fiable and d( testable worria lh« \ ^^_^
ibd hral: at the said club, wluch is k^# ■
KoUef*s Rents, near Gray's* Inn, Audio Ik]
month of Aii^ust the dc|»otieiiit vraa onAcfdl
the Jesuits in Lundori, to g^ive the 1
ijrcat respects ; and in ihcir names lo'i
the club fur their faiLbfulness to them in 1
parliculiir.
Att. den. Thu!tyou secv^liat he bad f
against hrrn ; now we shall she^v bow j
w ith him. Is that Mr, Oatcs's hand ?
WitntM. It is ; yes, I tjelieve it is*
Ad. Gen. 1 believe he will bsrdly «
hi nindf,
VateA, Let me eee tt, I pcay yaa, Mr. .
lornoy,
Att, Gen. Shew it htm. [IVhicfi wasd
Is that yotir hand ?
Oales. I cannot say it is my Imnd, Dor4il
believe it to be so. * '
L, C, J. He does not owo it to he bis b
Gates. 1 do not say it is ma my hamt ;
do not retuemher any thing- of a.
Att. Gen, Reail it, Sir, pray you,
L, C.J. What is it you %voof.^ - -s >
Att, GeiK A certiHoate utini
of Mr. Smith's honesty, not I In _ _
the Trial of the fi> c Je^uiu.
X. C J. rtead it, let us hear what it U,
* These are to certify that ^*
* no Papist ; and tliat lie ia up
*■ at this time for his king anU c.
* which, I hope those thai are inn
* recusants, will take notice. — \N
* hand this 3d day of June, 1676, Ti
L. C. J What harm is there in
must needs !^ay, I caiiuol oomp4<
}ou would iiidke of it.
Aft. Gen. Titis protection was «|-tren lb;
fSniiib by Mr. Gates, tbn^e daja hciiire til*
Trial ; but after he had sw 01^ him inirf ihe |iM
in his Narrative*
L. C J. I see not any plot, for my |ttrt»
that he swore bitn intoi uid«%s ytiti ineaa tna*
son ui'aiijst the House of Coumi^ns: far that
is the accusation he made^ Uiat he spoke wA
words of the House of Commons. Pray raii
it a^in, [Which was done.]
L. C J We I, and what is all this.^
Att, Gen, Is not this a sweuriiij^ him iaCB
the plot i*
L. C, J, No, nut that i siee i ti Mly pnt
ail itl chamcler of him.
Ait. Gen. But he is accused as a coufcdeciie
with the pricKts and Jesuits.
Oatet, Did X cbaige hiiu» Mn Alttntffi
STATE TRIALS, Uames IT. 1 68 5.— /or Perjury.
[1186
mwhg anj band in tbe ploi uguiust iLie
AiHt'i
[OcM* I ctnly^ offer ibis as jiii evidence
[7. X You call h a Ueing in the plul ; 1
cucli tliiu^.
tUen. Am\ iben he coioes and gives
I acquittal under Ui^ liam), and tiica pre*-
lliitu us a witness,
?* /. There c«u be no grout matLer in
fr. Attorney.
Gen. Tben« my lord, well call Mr,
kiawelf^ and he will tell you Liow Otiica
hiin in. Swear Mr. Siiiitb, [Wbicb
tie]« Pray actjimint my (ord and the
tow you came to suear at the f'urmer
y whom yoti were ptfi-tiuaded, and how
iried i'rorti the truiU,
I. J, Til at IS very iiaiiseous and fni^me;
lomey, inettiitik^, m a eotirt (d justice.
IGen, VVhat did you swear at the i'ormer
kod was that trite you did ^wear tbi'ur"
L J. 1 teU ^ou truly, 31 r. Attorney^ it
fSBk and fubonie ; U' he did forswear
{ why sbould be ever he a witness again ?
Gcu* 'Tis not the ftrist time by twenty
ich evidences have been given. *
M J. 1 hate such |ireeeiJeiils in all times ;
I done never «o ojlen. 8hail I beiieve a
line wurd he say^, wh^n he onus that
Hvi^re Iximselfi*
^Gtn- l^ray, my h>rd» give me leave ;
jinrsue my master's intefeit.
Bm, My lord, it was ever testimony
to be given to d^^tect a Kiibornaiion.^
J. I am sure Uis not fit iu bt: uJluw'd
time : if he did forswear himself in a
e inira, in Elm. Canning's Ca^, A. D.
br perjury, the Arg^ument of l>avy, Ser-
Sfld the dicta of Legge, Barofli nod
pi, Reourder of London.
iQlber thing that derogates from the
if a witness Ls, if iiptm oulh he affirmud
f' contrary to what he asserts; then if
tter be ciVil, you may give in evideuce
minal proceedings, and swear that he
idence at the Trial ; and this takes from
laess all credibility, inasmuch as con-
Icannot be true." Gilb. Law of Lvi-
U. 136 (f»<Ut* of imi), i>i^also p. 139.
pitnefis ^hall be admitted to swear^ that
p Bwore before w«a falj«e. See the Caitefr
)tliy Murphv, January 13th, 1753^ in
lection; and als^iof tlie Kinij aiftiiust
others, Trin. 49 G* 3. It EsuiVa Itep.
wbicli case, it was Kaid, that such 4X>n-
will not warrant ibe rejection of the
by the judge; n unty goes to tiie
the witnt^siaf on which the jury are to
80 billot c Committees of the House
lUions f(iv trial of Election Petition';,
h*> had liken the Bribery O^th, have^
standing, been ail mi tied to prove that
been hribetl. Set the Boston Case,
\S ; Peckweir^ Cafci of Controverted
Cuexxiv.
Court of Record, in my opinion he is not to be
received as a witness any more*
SiiLCen. We do n n I y make tli is use of bt m ,
to prove til at Oates did suborn }niii.
L. C. J. Pray call some other witne%sc«, if
you have them to contradict him ; but do not
tifferlo bring: ^ m^f* to siwear, ttiat be did for-
MW^ar himself before.
SiiL Gen. My lord, we ffive evidence here
of tt man*8 being produced uy Gates, to swear
he was here in May 1678, and he did mnke
such JiU oath: now ( hope, with fiubini&sion^
my lord, it is evidence to contratlict iltikt oath,
it' we can prove thai he has confessed be wa»
forsworn, and inistakefi in his oath ; snch evi'^
dence prbaps will be of httle value, yet evi-
dence tt is*
X. C J. Make it what you will, Blr. So-
licitor; 1 think it i:s of no value at all, nor ta
be admittcjd, for the man to come and swear it
Ixjinself : prove what you can by others. .
Sol. Gen. Surely, *my lord, this confession
of his to others, is of less value than when we
bring the man himself to confeNi* his fault ;
that ftnan hiitiself coming and owning^ the thing,
that he was mistaken, with great sorrow for it,
sure is a gotnl evidence*
L. C. J. A tifue the matter as long as you
will, Mr. Solicitor, you will never convince me,
but he thdt has once forsworn himself, ought
not to be a witness after that in any cause
whatsoever. If any man tell me otherwise
till doomsday, 1 <mnnot be convinced of it.
SoL Gen. I go but to ask him this qttestion,
whether or no what he tiwore were true ?
L. C. J. Mr. Solicitor, wc are all of ano-
Ijier opinion, that it is not evidence Et to be
given.
SoL Gen, My lord, I must submit it to you.
L. C. J. f tell von, Blr. {Solicitor, if yoB
should call Kim to Know what it was he swore^
and it does appeiir by any evidence, or by hit
own coutie^siou, that it was false, you ought
not to believe what he says, even in that mat-
ter. And I tliink truly for example's sake, it
ought not by any means to be admitted.
Sol, G£^«.*My*lord, I must subtnit it to youj. f^
but then I humbly conceive it will beinVery^^^
many cases impossible to detect a perjury ori
subornation, if the party suborned cannot bo.]
admitted to be a witness.
L. C, J. Wbat gtiod «[ll the admitting hiniJ
to lie a Witness doP For cither what be swnr^ f
tfien, or what he sweurs now, is tkUe ; and if I
he imce swears false, can you say he is t^ bd ;
believed?
31r. North. My lord, if a man come and
swear — *~ — " ,
L.CJ. Look ye, Sir, you have our opinion j 4
it has been always the practice btTctofore, that i
when the court have dehvered their opinion,
the counsel should kit down, ami not dispute it I
any further.
Ati. Gftu Then we will go aliont the bitsi«
nesa of Clay, and for that we wdl call Law-
rence Davenport.
X. C. J. it is c^rtainlj agi \ ^
4G
•od hj whpni lie wts
IJLWraOCS iMVeBMfft*
Pnysive my^loraMMl
hour Ck J tame to be a
to'beeo*
'eM ifwroemm or Ibe jtifj« Mr. Oeleft
lepniOD,
I, IbeiiilftliMa
emoiioiii
iernijMlf; end
.IhiaillMio.
I of the ptteMHn fir
» IM&mmmI, being in eoitodj; end at that
iite Mr. OMea, aa I Mud, when oM Ck j irat
i»prim^ did oooe there to'vWttlHiOlaT, at
eer eni ttmca. itod eoniiiff thctetovifltthis
day, opalrfre he weift to me obanbery and
MMd to i|ieek with bins audi did dine
jdmtmninOf Mr.Oatai» tiuA yea wovld go io
to - huBf ahd jfoo dal go ioto hie dniabery and
there thew worde yen ^d apeak to hiiiir before
thelMaloftheflvojeeoite; Thetif he^not
r what yon pot to hhii, he eboold be pro-
Bd aea prieet, wUeh you did be&evo he
Idiefor:
L.C.J. WhatietbkiBaB'eiiaiBef
Jit. Oem. Lawrence Darenport.
L. C; J. Did yoo hear hho aay ao?
ilaeeayei'l. Tee, ny hpdfiipop bt
Aleoniaorl.
U hear him
my kpdfimoD my oadi 1
eay eo, and eir WiHiam Waller
^vaa with him; endtiieDherepfied,amleatd,
with a provieo Aat yod woq|d giro him hb
«oM and etirer that wee teken mm him, bong
ilien a prieoner, bnder my kerpippf in the Gete-
hooel», and wanting bie money ; if you wooid
do that^ lie eaid, he had been a rogue before,
and he could not say what he might do.
X. C. J. Now make it appear that thb Clay
was sworn at the trial.
Davenport. Mv lord, aflerwards I was
keeper to bim nnder the other keeper, and he
had a keeper to wait on bim to Newgate ses-
sions at the Old Bailey; wherefore this gen-
tleman that is standing there, Mr. Gates, comes
to us ; sajs he, do not you trouble yoonelf
about this prisoner ; let bim alone with me, I
will see him at home again ; and then the Je-
suits there did take their trials ; bow tt was I
cannot tell, for we could not come into the
court. Afterwards they went to the Fountain-
terem by Newgate to dinner, and Mr. Gates
and he went to dinner togetber ; we were be-
kiw in the boose waiting there till it was night,
and stiQ thinking that be should ooroe down
agam : but away went be home, and left us in
the lurch ; hot mdeed he did come home to the
prison ? ery honestly and cirilly, becaoee he
-was drilly guarded.
Ati, Gen. 'Now, liay lord, we will giro you
an account, that the nesEt morning after this
^iseoane betwixt Gates ami Chiy, at the Gate-
house, this witness told it to ammier that was a
»riB0Der there then too.
Osict. My lerd, I wonld jmk Ok mao a
> whether he had the aoia kuifk^ of
ay^ wilhoMt aay other hiepca wiA
'*
S^
Mtff] flTATBTttUlU^iJiiiiin..l6M^7Htf^iaiierfak
hboie hot omdf, wh« Im ln;>&
Maig«ot*a-lMe, aot to tlw fKM» b
baoae*
OmUi. PtoyaektMafsMBjwmm^wt
not ooroe in and teitif^ bi diaBMiEnh
of when Ctoy waa a wttNiBf
lleeeiipori. I wia aot by wfaea
^Mtadt tmanOathaaoneelbmivonil
boa witamagato ^ any e
' 'Afi: ihrn. Swear La^
B^deh waa dona.]
juy an
OeCrt. DidhoMCknoirhai
£. C.J. No, haaaya hadWimtjgs
eemt with yoo^ ho waa ana amRBraa ti
I>sveimorf. My M, I as a -peei
ID, and know aalhiaf what hda^
Ait. Qm.
-^ [WhMbWaiJ
SoL 6fea. Pray uu waas uaf«B|
yoa,aadwhear
Mr. . Ho eama aad toy am
dayihtheprieoo» wherel waathea,^
Gamand Ar WilKam Wdlar had hem
mgwithCnayahaat, to aiafce hha a
Ifr.Gatei.'
L. C. J. What wem the wovda be
they said to him r
Mr. — -. It WM, that Im araila
Mr. Gatea domd at Mr. Howard'a ha
a day of the meaA» and Mr. 6ky 4
knew DotlHDg of the metter ; hot thee
liam Waller and Mr. Gatea did rspl
swear thn wo wdl trw yoa for a ai
hangyoe; and eo Clay amad, iri
bare nia tnoney raatored ttat waa toi
bim; be bad beeo a rogoo before, aa
know what be might do.
Oatet. Is this eridenoe, my lord f
L. C. J. Yes, doobtksB,Yery good
Oatti. It is only upon hear-eay
speaks.
L, C. J. Butthatestahlbbeatheotl
testimony, this being toM the rery ae
ing; forfaawouldaotooDeeaiit,tte«
Att. Gen. Now that Clay was aw«
trial, you admit, Mr. Gates.
Oatet. Yee, 1 do, he waa eo.
Att. Gen. Thea 1 think here's a pi
of a subornation.
L.C.J. You must observe how til
thb evidence : tbey say yoa are aa ill
only as to eweanng lawe yoonelf, 1
suborning others to swear more tl
knew ; and particalarly as to ibia C
you and sir William Waller did thra
you would hang him op for a prieat, if
not swear aa yoa would hare him
your threatemngs he waa pretfailcd
swear.
Gntei. Is Mr. Cby ia ooort, oiy ki
JL C. J. Nay, I canaot tell wheni
Ait. Gen. He waa year witnem, M
are expected yoa wooid hare braane.
Os/et. loanaottoMwlMroitoftiii
hwd, aowy truly.
Ait. Gfa. Cal Mn Hawaid.
0)f€r. Herehaii^ahitej
PATE TRULS. I 1am
. C* J. Mr* AUoroey, you bave not proved
I lie »wore.
ti> Gca, Wc are now about it, my lord-
, Howartl, prmy »*ere you at the Trial ol" the
f Jesuits, or at LaDtfhorii^s, wlieu Cjay ivai
iro as a wjlness lor ilr. Oates?
^oward. Yes, 1 was tX Langfliorn'a Trial,
rlord*
i/. Gen. What was tke effect of his testi-
there?
Taatard. He did svvokv tJiat he wk^ witb ilie
1 Mr« Dates at dinuvr at my house^ b May,
lie year 1677.
in.' Gen. 1577 did liesav, or J678 ?
Barnard, Slay^ 1 will look upon tny uotes I
\ at tliat tiJii«.
C J* Ay, do so, to rpfresh your memory,
, Hoirard.
ioQ^ard. It was May 1678* tny lord.
\ Ccn. Pray, 8ir, was be tbeu at your
I with Gates?
fgaBurd, No, he was not there iu May ; Mr.
' ' was witb me and Mr, Oaies botli together
Itily 167B, after tbr 4th day <if July.
fit. Cen. That iSf atW thi: time he come to
dun from St. Oaiers,
t. C* J. You say very ivelL Have you aoy
wltncKses ?
>i. Gen, My lord, we must desire that the
' #8lh article ot' 'Mr. Oates^s Narrative, may be
tfCr. Beads. * That iu order to this
ijuand on April 24, 1678, father Warren,
r of Liege ; sir Thomas Pre«ton, bart.
Man»h, rector of Gauut ; aud father
llHams, rector of Wat ton, and master of the
ices ; sir Jobn ^Varner, liart. Ricbard
iby rector of the Enghikh semmary at St.
lers, lacing sick of the gout could not go,
t out of the said seminary went sir Hobc^rt
Bret, barU fkiber Pool, Ed^ai-d Nevilc. There
were in all with the deponent nine or ten, who
tnet iu London iu consult witb Th<imas White*
bread, fatlier Harcourt senior, and father
fiarcourt junior, Jobn Feuwick, Basil LaDg-
%vorth, William Morgan, Jobu Keimes, fa-
tber Level, father Irelaud,, father BUmdel,
Ricbard Stratjg-e, father Mico, falber G'rcy,
ftud others to the number of fitly Jesuits, met
ai the White* Horse Tavern iu the Strand,
where they plotted their desig^ns tiir the no -
dety, and ordered father John Cari'V, who
was also there to go to procurator for liorae ;
at which consult thus held in tlie mouth of
'If ay, the def^Kineut was present to attend the
cooaultora, and deliver their coucertis trom
eoDOpaoy to company ; and then a bttle after
they left the White- ft^irse Tavern, and divided
them^ves into several clubii and com|tanie^ ;
■omeineiat r^Ir. Saunders's bouse in Wdd-
fllreel; others at 3Ir. Feuwick's, at Aires's
bouse in Drury-Lane ^ others at Mr. Ireland s
in Russel'Street, near Coveot- Garden ; and
m other pbces. All which, though in e^evei-al
compaaies, five or six in a company^ did con-
trive the death of the king ; and in order to
wbichy there w«re papers sent from company
ES IL 1685.— /or Perjury. [ 1 190
* to company, which the deponent did carry |
* contaiuiojj their opinions of the timing ibcir
* business, and the manner bow it was to l>»
' done; and within three or four days afler the
*■ deponent went to 8l timers, with the fathera
* that came from the other side of the ^latcr.'
Ah. Gen. My loril, we produce this to over-
throw their wituesiies, that sjieak of his bein^
here a week in May. Now Mr. Dates iu his
Narrative says, tbat'lhe consult ended the S4tti
of April ; and that three or four days alter he
returned hack to St Omens.
L. C. J. Pray read tliat over aR^aio, wber<*
the names are ;Vor ibc witnesses forthckiufj.
awear, that Mr. Williams came over from 8t,
Qmers ; hut he there says he did not, I ihiuk.
[It was read aflrain.]
L. C. J, I thought it bad been otherwise ; it
is darkly |>eoned.
Atl. Gen, My lord, 1 mysseTf heard him de-.^
dare in many trials here, and at the Old- Bai- *
ley, that all was fuiisbed iu that day, and bd i
went in a i*iyf days.
Oattt, Mr. Attorney, you are uu^takcn : for.
if you please, my lord, the consult was not dit-
solved iu six or eight days, though they were
not sittiujj^ oracling every day.
Att.Gcn. It is not a dilference of siJC or
eight days that is conleoded for, but it is, either
Mr. Dates or bis witnesses do net swear irue«
If it were as Mr Dates says, that six or eight
days were allowed after the i4th of Aprd, then
it must be the jlh or 6tb of May that he went
to Hi, Omers \ and then bis witnesses, that s.'ty
he was here the latter eud of May, cannot,
swear true. And our witnesses say he was all
April and May, till the 23d of June, at St.,
Omers.
OaUi. My lord, Mr. Attorney does not ap-
prehend the evidence aright.
Z. C J. W^ell, you may make your remarki
by and by, and set him riglit if you can.
AiL Gen, We have done our evidence, my,
lord.
L, C. J. Have you any more witnesses, Mr,
Dates ?
Dates, No, my lonl, I have not.
L. C. J. Then you must conclude, and say,
what you have to say to the jury.
Oattt. My lord, I have one thing more, and
that is, a copy of the record out of the House
of Lords. It is in the Journal the 25th of
March 1679.
Mr. Walker. My lord, I have uot the book
here, it was not spoke fi»r.
Otites. But do you know this band ?
[Shewing liim a copy. J
Walker, Yes, and I l^lieve it is a true copy*
L, C. X Read it.
Cl,ofCr, Reads. * Tuesday the 25th of
March^, 1679/
Dates, It is the last clause tu the Journal of
that day.
C^, of Cr. Reads. ' Resolved, Nentine
* Contradiccntc, by ttie Lords spiritual and tem«
' poral, and Conmions in parliament assembled
^ that they do declare that they are fully sa«
1191]
STATE TRIALS, 1 Jambs II. l6%5^Tnal ^ TUm» OaU$, [1191
^ tisfied by the]iroof8 they hayeheard, that there
^ now is, and for divers years last past hath
been a horrid and treasouable Plot and Con-
the Protestant Religion, and the ancient and
' established g^Temment of this kingfdoiD.'
Ocffei. There is an order to have that vote
printed, and inserted before the Form of
Prayer for the Fast. Pray, Sir, read the next
CL of Cr. Reads. « Die Lunoc 95 Oct.
M680.
'Upon Report from the Lords' Committees
*ibr examining matters relating to the discovery
' of the late horrid Plot and Conspiracy, that
* captain Thomas Bickley hath lately vilified
< Dr. Titus Oates at a public meeting at Chi-
< Chester, to the prejudice of his majesty's evi-
* dence, for the farther discovery of the dis-
* covory of the said Plot : it is thereupon or-
' dered by the Lonls spiritual and temporal in
* parliament assembled, that the said Thomas
* bickley be, and is hereby required to appear
* before their lordships, in the lord privy seal's
' lodgings, near ilte House of Peers, on Wed-
* nenlay tlie third day of Nuvembc-r next, at
* eight of the clock in the forenoon. And it is
* further ordered, that alderman Exon and al-
' demian William Bury of Chichester aforc-
* said, who were then present ;\t the said meet-
' ing, do likewise attend their lonlships at the
* time aforesaid, to give evidence of wuat they
* knpw concerning tliiN matter.'
L,C.J. What of all this? We knoiv here-
iijion Bif'kley .vas turned out of rrtmniissio*!,
and now BkckKy is in a^^ain. Wwi it set ins,
as you had credit with some then, so you had
not with others. Will have you uov: ifone all ?
Att.Gtn, Y(s, niylord.
Sol. Gen. If Mr Oates will suhi up his
evidence, then I will do the same for the kinir
ivheu he has done.
L. C. J. Well, what sav > oii, >rr. fMtes ?
Oatfs. N\»w, my lonl, hen! is an Indictrnonl
preffin-d ajraiiist nic for perjury, ant! the evi-
dence tht*y have driven for tin; kl'ig, is this. 1 .
They havecalleil Mr. FcTsfer, andlie tells you,
that I was prodiiciHl at the sessions- house in
the Old- Bailey, vhen; ln; was suniiiioned as a
juryni.in, upon the trial of Irelan*! ; and he
Kays, that \\\\vu i was produced at the sessions
in\heOI:l Bailey as a witness, and swom (if I
i\o rememlMT Sir. Fost.T aright in what he
says), he did hear w «.w»:ir, ilir.i there was a
treasonable consult of Jesuits upon tlir 5i'li of
April 1078, at the \> li:ie-hnrse tavern in the
Strand ; and he does fiirther say, that I saiti
those Jesuits ultcrwards came to a re^dution
to kill the Ivin^; :in«l that tluy separated them-
selves into lesser clubs, the* resohitiou beinif
drawn uj) by one Alico; ami that I earrietl it
from ohamlMM" to chamber to be sitfned, and
did see it signed. My loixl, I did ask Mr.
Foster, w hetlicr I in my evidence called it a
consult, ora traitorous consult, l^ow, my tox^ w
is true I did call it ft traitorous oonsnlt; it is
as true that 1 did swear there was such a con-
sult; and it is as tme, that 1 did swear thii
consult did divide itself into lesser conpanies ;
it is as tme as I did say 1 carried that mob-
tion about from chamber to chamber, and aw
them sign that resolution f«r murdiniog the
king, I do not mean of this kmg, but cr the
late king. My lord, the evidence I think I,
nor no honest man shall need to be asbmd
of: 1 am not ashamed to own, thftt I rnotcri
this evidence several times, nor that 1 gara
that evidence upon oath ; for it is troth, mj
lord, and nothing but truth, and I rewnlrt \^
the grace of God to stand by it, and ooDfim t
with my blood, if there be occasion. My loii
to convict me of perjury^, they have bnwgbla
parcel of St. Omers witnesses, and these tf
swear that which they would have sworn n
years ago; but then the court thought tba
fit to be swom, not only because the law vl
not allow them, but because ^ their reliyin,
that can dispense .with fUse oaths, if il
were for a good cause, and that was Iht
remark my Lord Chief Justica Scrags
then made on it. I shall not insist much open
what they have sworn, for that I sappose tov
lordvhip and the jur}' do very well nmaAa^,
but I have five things to object to their eri-
dence, and 1 hope the jury will take niilioerf
my objections, and make their remarks vfm
them ; for siuceyou have heard the evidocc
that is brought against me, it will be neccBvy
for your lordship to weigh the nature of tbett
witnesses, and tnc value that the several juna
of Ijondon and Middlesex had for them, ft if
true, 1 line are several brought hei^ now, that
never were witnesses before ; there are indeed
other men, but of ilir same religion and the
I same interest, and therefore their testiniooT
I niMfrt be of the same value ; I think your lor^-
; ship will aUow me that. Therefore I hecie
with tiK-ir reli^i-ion, and tliat I take notice to be
; a great objection to their evidence, as I am id-
\ \ isrrd by those that are learned in tlie bv.
I And I must upiH'iil to the court, whether ■
{ papist, in rase ot n*li^Mon, may be believed and
I reei'ix'd iwa t;'»o<l witness.
I L C. J. Wc mii»t not hear any of these idle
i expnssions.
Just. IVit/ihu. Do you think youarecoBie
here to prcarli, Mr. Oates?
/.. C. J. rii t«ll yon, a papist, except vou'B
prove any legal objeetinn against him, is &>
good a Witness in a court of record, as any utbcr
person whatsoever.
Oatts. Hut ititisyourlordsliip\s, llltellvcm
mvlord Cuke's practice was not to admit' iben
: as jrood witness *s.
I L, C. J. Do not tell me of m\ lord VoVt^
\ practice ; the law i:i othenvise ;* keep to the
I Inisiness that you have here in hand, toe ques-
tion before us, whether you were fbrsworsii
Ireland's Trial or not ? Answer that ifyoacis;
but you must not run out into daiiMmn, ■■'
idle extravagancies.
OaCcs. My lord, I demand it at my rigbt »
iTKreHn J
STATE TH1AL8, ! James IL i6S5,H
''^(fhat 1 hare to except against the
rL I tell TOW, yon shall be heard when
d jiropcrly ; but are jou to determiue
I :)iii to ileleruiinu my own right
t^mi point, and I insist upon it, and de*
^^ ^•^_ It roay be presently you will tell us
^^ ^^ w^o right tojuilge of it.
LV^^''* ^«i, you, my brd, have ; but I hope
E»^ ^»- Tiffht to urije it.
^^I^ -. J, Urge what you will tliat is to
"^^jpose, but then you* piust keep to the
Vn ht\nd, and not'make such idle excur-
^» thejrt? are.
*'^^. I will keep to the matter, ray lord, if
L^VU bear me.
*^ C. X So you shall ; well make you keep
^^^L^*^ Tnatter, or we will not hear you at all ;
T^" t\f^ think yonr impudence shall storm us
^^*Ml of our sensei*
Oaf«. My lord* I do insist upon it» that
■^•e men*8 relig'ion is an ex(:eptioTi to their
^laony, and a papist is not a good witness in
muse oj* reli prion ; and I desire I may have
_ Bare to argne that as a ptiint of law in my owti
V ^efefice.
^^ L. C. X No, Sir, it in no point ol'law at all.
^H Oatet, Then I appeal to all the hearers,
^piflietfaer I have justice done me.
L.C.J. Whnt's that? Why you impudent
^^llellow, do yoti know where you are ? you are
^^k a court of justice, and must appeal to none
jf^pilt the court and the jury.
^ Gates, i do appiml to the hearers,
fcZ. C. J. Take him away there ; if you will
t behave yourself as y<iu ought, I can assure
-tt, the court will do what they oujjht to do,
d stop your mouth.
[ Oat€t> What you please, my lord, 1 must
^1^ make my own defeoce as well as I can.
. X.. C» /. Vop are here iu judi^-ment before
^ypi, nnd are 1o ap[»eal to us ; vte'il suffer none
^^bf your commonwealth a^ijKaU to y»*iir m^Me :
^Hk«ep withit) tlie bonnds of flccency, and say
^ what yon can for yourself.
Oata, My lonf, this I move to the court as
. ^ mie of my objections to this evitjenee vfiven
a^inst me« Ttiat their reljn^ion makes them no
gtxHl witnesses ; especially in this caui^.
L. C. X I lell you that is uothiug to the
fir[iose, tvhat their reli^^ion is,
Just. HoUouQi^. Mr. Oatcs, we come not
} to dispute points of religion, we come to
wy a bare master of fact, whtlher you ari? per-
ured, or no.
X. C X. f tell you a papist is a good wit-
ness without a legal exception.
Just. Wtiftins. Pray, Mr. f>ates, is not a
^ajust as good a witness as a tlisseuter?
Oatcs, My lord Coke would not admit a
papist to he a good witness in any cause.
Just. Witkim^ How, not iu a cau«e oimettm
tad tuumf
Ootet, No, my lord, tioi in any cause he-
fween party and party.
[1194
X. C, X Where is that opinion ?
Oatcs. Vl\ dte you the case, if you pleaie^
ray lonl
L, C, X Pray let us hear it.
Gates. It is in Bufstrode^s Heportt^ in the Se-
cond purt, 155. A Popish Becusant is not to
be admitted a witness between party and party.
Just. Witfiins. lyiay a presbyteriau be a good
witness, Mr l>atC8 ?
Just. Holimifnt/, Or would Mr. CoUedge
have been a good witness, Mr. Gates ?
Dates. I tell you this was my lord Coke'i
practice.
L. C* X You have our opinion^ and be satis-
fied witli it ; tliat ho(»k says it vras ray lonl
J^oke's practice, and we think if that was his
practice, liis practice was against law.
Dates. Then another thiug I object to their
testimony, is their education.
X. C, X That^s no objection at all neither-
Gates. My lord, they are bred up in a semi-
nary a^inst law, and for which their friend*
are to he punished.
X, C. X 8o is every man living that Is bred
a dissenter, bred up against law.
Gates. My lord, 1 have not offered any dis>
senter as eviflence for me.
X. C, X iSo, they are all no douht of it very
good people. Gaod-wi*<e MayOj and her com-
panions^ excellent Protestani9 without all tpiea-
tion I
Dates. My lord, I humbly offer a statute to
yonr lonlKhip : and that is law sure.
X. C. X Yes, a statute is law. What sta-
tute is it f
Gates. U is 27 of £ljz. cap. 9. The law
says there
L. C. X Come, we w\\\ se« what the law
says. Read the statute he speaks of.
't7. n/ Cr. It is intituled, *■ An Act ngamst
* Jesuits, Priests, and other such like dtsobe-
* dient {vcrsons.*
Oatef. My lord » I desire that the preamble
of the act luay l>e read.
CL ofCr. * Whereas divers pe^sotis called
* and professed Jesuits, Seminary Priests, and
*- other Priests, wliich have been, anil from
* time to time are made in the |>aits beyond the
* aeaa, by or according to the order and rit<^s of
* the Romish Church, have of late come, and
* have lieen scut, and daily do come, uinl are
' sent Into this Realm of Eti gland, and others
' the queen's majesty ^sdomitnons*^ '
L, C. X This is nothing to this business be-
fore us ut all .
Just. Withins. Does this stiitute say they
are no good witnesces ?
Oiilts. Thpy own themselves to be ed^»cated
at St. Omers| and that is against tlii.<i law ex-
pressly.
X. C. J. What then ! Do they own them-
selves to he in orders, Jesuits ana Pri^^^ts, then
you might say somewhat to tbem upon this
law; but do not spend our lime in sue u tiiOcs.
Oatt'S. 1 do not spend your time iu trities^
my lord ; tt is my defeuce.
I
1
1
1
I
I
I
4
I
STATE TRIALS, 1 James II. l6iS.— Trial of 7i/«» OAtt^ ^\%\
I
I
L. C. /> Mr. Attorney, do yoa ^ on ; for
mre wUl oot sit here to spend our lime for
nothing.
Otiitt, Pray, my lord, let me but shew iKib,
I ouly pm(>o«e one Sitatuie more to your lord'
ship's cousiUeration.
L. C, X You may propose to read the
whole StiLtule-book.
Oatei. Pray, my lord, hear me out,
L, C. J. Spesk'UteQ to the husiness in hand.
Oat€$. It is the statute made iu the drd of
kioff Charies 1, chap. 3*
£. C. J, It is uothiog' to the purpose.
Oaies, I am advised it is very material
lor me.
L» C. J. 1 tell you it is not, and we will not
let your importumty prevail. upoo us to spend
our time for nothing : there has beeu a great
deal of time spent to no purpose already.
Oaiei, Then if you will orer^rule it^ my
lord
L, C. J* We do over-rule it : for it signifies
nothing to this purpose.
Oat a* Pray, my lord, be pleased to give me
leave to ufler iheir judgments in cases of con-
science, whereby tbey own they have dispen-
sations to swear lyes for the promoting of the
cause.
L. C* J. That is no evidence neitljer,
OaUis This is very hard in such a case as
this.
L. C. /. No, it is not hard, that i^hat is no
evidence in law^ shouhl not be sufPeK-d to be
given in evidence.
Data. It is evidence against the poor dis-
senters, mv l'»nl.
X. C. X Indeed, 8tr, it Is no evidence
against any one body in the world, if vt»u will
take my word lor it ; if you will not, I cannot
helu it.
Oaf a. Tben I offer you onr thing more, my
lord, ami llmt is uhnt was said and doue in tbo
case of the tail of 8battcbury, wUen he was
cbargeil with I linfh- treason, aud <^ommitt<Ml to
the Tower of l^udoii ; at several sessions in
the Old -Bailey and at Hi<--kes's-Hall, tbey did
move that iht'y might have liWrty to bring in
an indictmi^nt of perjury, against the witnesses
which did accuse htm of treason ; but now the
court there fiver- ruled thuee motioni:, and would
not suffer my lord of Shaftesbury's friends to
bring indictments of perjury against them, bf -
cause they would not have the king s cvidsnce
indicted oVpefjury, nor the popish plot cnllpil
in question : this is a matter of fact in the Old-
Bailey.
Z. C. X And this is all idle too.
Oate4* Pray, my lor^l* will yon hf^r me ?
i. C X But pray, Sir, will you hear me too ?
1 tell you thi^ is yotliing to the purpose neTther.
Gates. My lord, 1 desire to »jieak but these
few words theo, as to niy own witnesses 1 hare
produced. And the tirsi is Cicelv Mayo ; and,
my lord, though it be your lordship's pleasure,
not to have that good opinion of ber, as 1 think
the poor woman does des4.'r%-e, vet I hope her
f videuce will have its due weight and coiuide-
rttion with your lordabip and tbe jmry.
says, she saw roe in town to ibe mm
May : Now, indeed, ahje ooold not bs ]
what May it was, but she MUd it i
before the Popish Plot broke out, I
fore the rumour of that Plot wi
and she beheves the Plot brake oot
But this she says positirelj, she saw l
month of Mav here. Uly lord, sbe^
give this rviJeucc freeJy*aud vob
man that is a knave, is a knare for i
either out of malice, or far giuu or inle
she has no reward given her, nor can 1
any ; but in love to justice, without any by-<
or particular interest, she came bene to UA
the truth about her seeing me tii Loodstt^j
May 1678. The next witness is Mr. ~
he was then sir Richard Barker's
lie livetl some years with hiw, as bis .,
but he is nuw set up for himscjf ; and btl
that when he was about his magitfT*! f
in the ooach-yard, and fittiog- tlie coodifvl
fetch his master home from Hul4iey, 1 1
and this was the b^inoitig: of May, in s i
guise ; and he says, he saw roe a scoood i
m another disguise. Then comes a thiid i
ness that 1 c^led, and that is Page ; and I
came into the hall, where the patients ob
wait for his master, and there he met mCt *
spoke witli me. Then I ciiHed >Vi
luiniJiter, but it happens his memory j
good now, as it was beretofi>re i suid i
cannot w\[ how to blame him* for it is i
siuce, that it is impossible ff>r an v hfi-U i<i i
member the circnnistafic^es oj ( lia
that in some short time alter
have been remembered viith lUr greater cw
expected sir Richurd Barker mi^ht have '
here subpo*n:ied, to justify the f '
these (>eople ; and I did su^jperi
Hmith would have been examin«.ii ; but I per-
ceived the court tender of that point, as kasv*
iiig it would then easily have been «ccii ofm
which side It was that he was sub<»medy tbslii^
to make such a confession as Mr. ActoffiCT^
would have hinted at.
L, C. /. Have you a mind to examtoe bitfi,
Mr. Gates ? Witli all my heart. If you coo-
sent to it, he shall be examined.
Just. Wilhins. If you will, he shall be €S^
amined, it was for your sake he vrm& noL
Just. lluliiMd^. It was to do you rtght, fkif
be was refused to be ^wora before.
Oatc&. ficiml Mr. Justice H olio way ^ youirf
very sharp upon me,
IVlr. Just Hoihuay. No, I nixi not st^
upon you ; I think the court did you a grrat
deal of justice, you have no reason to compiaia.
Oaica. Hut, my lord* this 1 sav, the evidcoee
upon which I am now indlcteu of perjury it
tlic s&tiie which was delivered six vears ago •!
the Old-Bailey, at Wbitebread's iriaJ fint, aad
then at Langliorn^B trial, wbef« were fisclEM
witnesses then produced and htmtA asaiBil
me: But then, my lord, what credit did tb^
receive at VVhitebread and Lan^hom^s triab r
Now if this evidence that I gave wisthca Is It
STATE TRIALS, i Jambs II, tfiSS— /or Pnjtay,
[1198
red, though opposed by so many wit-
j what new objection dues rise e^uinst it,
eh was not then hinted^ and received an
wet ? For as to all the records limt are
[it out of the House of Lonl*^, ibey have
aoiinteilto a charf^€> sufficicnlto iliininish
' man's ci^idence iu lljc world : iorat? to the
iiti?e that is entered the it; in the JouroaU
nk 1 and any man else, thut were cou*
as I was, loav very well defend the
I of it : and I do avow the trutli of the Po-
Pivtf and will stmid by it as lon^ a^ i have
hy to live ; and I do ont <|ucstion bnt the
ii[»oo cousideraCtou of those Protectant
I tliat I have here hrouja^bl a;raiiist these
sh Seminaries, will aerjuit me of tbiis per-
I leare it to your lordship and tlie juiy
jfe ; and 1 hope thtjse passages of heat,
have fallen from me in courts shall not
Ite me fare all the wonie in yonr judgment.
|ve called some noble lords to testify for
bnt I tiiid^ either the distance of time has
nght upon their memories, or the diHerence
tlie seasim has changed their opinion, so
now they disbeheve that which they did
eve beibre, and perhaps for aa litlJe reason
. C /♦ As they believed yon at lirst.
tf/ei. Yes, truly, my Icjrd, lor as I idle rea-
I ihev beheved me at lirsi ; for 1 caunot
tljat a man, vilio lielieres without a
*if»le, should not recant that belief without
oik
t. C J. What do yoy mean by that ?
"^tita. t name nobody.
C J. But the nohility thai are here,
^ dial have bten witnesses in this can^ie, are
one of thai honour, that the conrt is
i injustice to take notice of and vindicate
firoto your scandalous rejection !9 ; but
I ihirfU that a slander from yom mouth k
' hi lie scandal.
ates. Nor from somebody else^s nettlter.
. C. J. But, bir^ you must be taught better
Bfef. I Bod, my lord, 1 am nol to be heard
bis cause with patience.
C, X 1 think you do not deserve to be
I at all
^utes, i cannot tell how to help it, if you
I not hear me.
C J. CanH you say what you have to
* fur yourself without reflectitios, and run-
' out into such cxtraia^ncics ?
9atfj. My lord, you will suffer me to offer
'iini<^ tiiat is material for my defence.
lust Witkoi, Do you think it decent for
' tilts court to suffer per^ns of honour, that by
iir (iwn desitv were s^orn to ^ive tifsttmony
his canse^ should lie under the reproach of
' tongue i'
titet. Good Mr. jofitice Walcot, was there
' any man dealt with as I am, or bad such
Doe offered to be given again^at him ? Here
t offer to blacken me with the imputation
foal intamous crime of perjury ; and
itha are the witnvisei to prove ii. but youths
out of a seminary ? Sir George Wakeman,
and ray lord Cas'tlemain, known papists, and
perhaps Popish recusants convict too. As for
my y^f^ Castlemaio, the record of his ac*
qtiittal h brought as a charge against me, to
tirove that T was forsworn, and not believed at
lis trial ; when all the world knows, it wa»
because there was but oue witness against him,
that he came off, and that was the reason that
was urged by my lord chief justice Scroggs at
that very tiinc, who would not admit Danger-
field to bo a witness, and reflected not at all
upon ray testimony, but directed the jury, for
want ol another witness^ to acquit him. Tbeii,
ray lord, here is VVaketimn brought, and hia
acquitlaltoo j he swears all i said against him
was faJi^e i whereas^ tiail it not been for two
dislwnest persons, one I have now in my sight*
I shall not name any names, we could at that
time have proved live thousand pounds of the
money paid to him, and that lie gave a receipt
for it/ But, mv lord, this I am sure of, if I
had been brougfit in as a witness in the case of
those that suffered lately for the Presbyterian.
Fanatic Plot (as they call il), f had never been
i^a11ed in question, if my evitlence had been
false ; but it is apparent the Papists have now
a turn to serve, and these Papists are brought
in, the St, Omers youths, to bear this testimony
on purjiose to falsify my evidence, and to brin^
off the Popish Lords that now stand impeachea
of high -treason for the Popish conspiracy :
liijt, my lord, I hope as the court would never
admit indictments of perjurj' a^inst the wit-
nesses in that case of my lonl Shaftesbury, so
you will not admit it here ; and if my lord
chief justice Jones were in the right, who did
the snme thing in his circuit, 1 hope I shall
ba¥e that right done me here. My lord, it la
not me they indict, but the whole' Protestant
interest is aimed at in this prosecution ; and
hereby they arraign the whole proceedings of
Ko many parliameuU, all the courts of justice,
and the verdicts of those juries that convictetl
the traitors that were executed ; for luy owa
part, I care not what becomes of me, the truth
will onetime or another appear.
L. C, h I ho|>cin G<»d it will.
Outn. I do not qnestion it, my lord,
L. C. J. And 1 boi»e we arc finding it out
to-day,
Outes, But, my lord, since I have not tha
liberty to argue those things that were most
material for my defence against this indict-
nicnt, 1 appeal to the great God of heaven and
earth, the judge of all ; and once more in his
presence, and before all thi« auditory » I avow
my evidence of the Popish Plot, all and every
p«rt of it, to be notliing bnt true, and will ex-
ppct from the Almighty God, the vindication
of myinleprity and innocence,
Sol. Gen, May it please your lordship, and
you gentlemen of the inry
Oatfs, My lord, 1 nave one thing to move
to your lordship ; 1 desire 1 may be brought
up to* morrow by rule of court to hear mj
trial thai is then to be.
1199] STATE TRIALS, 1 Jambs IL le^S.-^THaU/TUmB OMia, [IflOO
Gentlemen^ The evidence that hu ben
given to prove, that he waii not pretoit at anj
buch consult, nor did canrv any aiich resolntitB,
has been by nrowng^ wnere he was at tbM
very time that he swesra thia^conaiill waa beU,
that is, that he was reaily at HL Onm, it
^arts beyond the seas, and not in Loodoo ; ni
to make out this, we have produced no Sea
than twenty witnesses, that swear poatiniT,
and give yop very many drcumstaneei ii
imiuee you to beheve, that what the? bsiv
taken upon them to. remember, ia reaDy mk
eflectually true.
First, You have Mr. Uilsley ; and heswein
that he himself came away frdm 8t Omenthr
S4th of April, New Stile, which ia the 14ditf
April, Old Stile, which was a Sunday ; tfal
night became to Calais, the next day be ah
rived at Dover, and <coming op to toini Hi
wards London, the next day be met with Jfr.
Bomaby, who was then going toStOam.
And he further swears, that at thai very lim^
when he came from St. Omen, he left (ktn,
the defendant, upon the phioe : thu, 1 ny, vii
the 14th of April. And tor a confinnaboatf
this to be true, he left him there at that tiae,
I would mention what two other witneaMS i»
testify, and therein do verily what he swcan;
for Uiey tell yon, that at this Tery time wbca he
came over, or within a day or two, but Inf
before such time as there was any occaaoa H
bring' this to be a question, he told one of tboa,
in a discourse that was between them, thtt he
had left upon the place from whence he cum,
which was ;he college at 8l. Omen, ao
English minister, whose name was Saiuptaa
Lucy
Gates, My lord, I beg I may have leaf e to
withdraw, fur I am very iveak aud ill.
L. C J. Theti make room for him to gt
away, if he will.
Soi. Gen, Aud thcv trivc you an arcouni,
that tlie defendant, ()ates, %ient by that ninie
there, and it is not deitietl by him that he did
so : and this is a oirtMiinitaucc i^p atly verityiig
Mr. Uilsley 's evidMice. Tliun tH)iues Mr.
Riirnaby, vmo s\\carSy that he met Mr. HiliIrT
when he C'lme from 8t. Oinera, about the I61I1
of April, Old Stile, and the 2ist of April, UM
•Stile, he came to St. Omers ; and that wben
he came ilierc, he found Oates there upon the
nlntv; UiiNwasthe 1st cif May, New Stile; and
ne g.vei yo" this circuuisunce to stren^thn
L. C. J. Ay, let him be brought up by rule
to his trial.
Oatet, My lord, I lie under very great afflic-
tion with the stone and the gout, aud besides
that, I have hun in irons these twenty-one
weeks; I beseech your lordship, that this
crueltv may not be inflicted upon me. My
lord, I am but hitherto a debtor to the king
ujHm a civil account ; and iff should be con-
\iet«l upon these indictments, I could then be
bnt in execution for a trespass : and I humbly
conceive and hope the court will shew me thait
favour, as to acquaint my keeper, that I ought
not to be so handled.
L. C. J. Look you, for that, I tell you again
what I have often said, I expect from the
marshal that he keep you as he ought to keep
you; I have heard that there have been
abandance of attempts made for your esca|>e,
and therefore the marshal must have the
gteatercare of you.
Oatcs. Let any of those complaints be made
out, ikiy lord, and I will be contented to be
used how they will.
L,C.J. I repeat it again. Let the marshal,
have a rare to keep you * in salvft et arctft
* CnstodiV according to law.
Jnst. HoUoway. If the marshal does other-
wise than his duty, inform against him, and
take the remedy the law allows.
Marthai, But the last night, my k>rd, ropes
were brought into his chamber, on purpose to
give him means to escape, and here are the
pnndle of rones.
Oates, I Know nothing at all of them, I
assure vou, my lonl.
L.CJ. \Vell, you have our rule. Go on,
BIr. Solicitor.
Sol. Gen May it please your lordship, and
you geullemoii of the jury^ I am of counsel
tor the kiiif^' in this cause ; which is upon an
iudictaient of perjury a ;din<it Titus Oales, the
defendant; and the perjury cl- i.g^cd upon the
detendint, is laid to be in hi- •■ ih at the trial
of Ireland, at the Old-Pailev ; and it is thus,
that he in his evidence a* that tr'ral did swear,
that there was a treasonaMe cousult of 'he
Jesuits, held at the White- Horse tavern in ihe
Stiand, the 21th of Anril 1678, and that he
was there prcs.int
Oat ex. Ay, 1 was vliere.
L. C. J.' Yon must l)e quiet, and let the
counsel goon without interruption
after lie t^ame to St. Omers, Oates iuti
into Ills coni|)any, and got himself acquaioud
with hhn. lie says further that upon thf Sid
So/. Gen. And that they se|)arateil them- i his testimony, that he very well remembRS,
selves into k^ser com panics 'and clubs, and that thatuiion the 3nd of Mav, Sew Stile, the &v
the Jesuits came to :j resfdution to innnlcr the
late kinir, and that he, the def'enduiit Oates,
carried this resolution from chamber to cham-
ber, and sa^ it signed by them : fow all this | May, New Stilo,'^hc particularly "rememb«»
is laid in his iudictiueui to i>e false ; for that, in .dates was iu his company there, anil tbcy
truth, he wasfiot present at any such consult ' went into the ganleu and walked together: he
of tlic Jesuits at the White- Horse tavern in the j alsti says, he saw him the 5th of Mav, Stw
Strand upon the 34th of April 1(578, nor did | Slile, which istheQ^.h of April, Ohi8iile,lbr
carry any such restdiition from cha<nber to ' day alter this day assigneu for the cofliiA
chamber to be signed, as he had sworn in the | with this cinuimstance, that he lemembenM
Old -Bailey at tliat trial ; and so has committed i have seen him ui the Rhetorick school, and »
wilful ana conupt perjury. (successively atlenrarda he gives yo« a parti-
m
STATE TRIALS, 1 James IL \6$S,^for Perjury.
[1308
r«ccatiat dnwn to NidAuumier : after tliftl,
Nil the college lU $L OiDeiJS,
ten ii>* *-'t:-s«t w« produce is Mf.
^If aiui ht I iiii ncctiiMii, ttiut lijjon
|t7atJi «r \^,:. . ,, .., New Stile, whti*h was
J^tU «( Ajml, c»ur Siile, he canui over
t Atid iui Icli bt'liind bun ul 8t. Omers the
dittut i*at€9 ; fVir he parti«*ufarly » emcm-
he saw bim iberc when* lie came
%y ; bO HilsU V leU him the 14tb uf Ajinl.
PmoI cAri)L;tvvav the ISHt of April, wbith
heir 25th, onil fcft him at Hi, Omers, ami
i nut remember, that be used to be kbseut
*#f the colle^^e ; unJ Mr. Buruuby limls
tberv ib<^ ^Ist of April; so ihat purticii-
ttt :f i ^ the «ihert«ci cume att^ay,
Bi; lie tUiiber^ there he wm^ and
rV ^'l'>' It i III.
ti witii€SH is Mr. Tliorntun, and he
I ao Dirount when Oates cauic thither
and how ion;; he i»taid there ; be says
ftme about rbristmas IG77, and there lie
till Midsummer e?e 107H ; and he tells
liome paritoular days be saw him on ; be
1 he saw him there on the 1st of May,
^li(e, and he saw bim the Stidof May,
B, in company with J^Ir. Burnaby, the
^'•fier hm arrival there, wondermg at
^mdden acqui^intance. And he aiids'^a
CQtar drcmnsiance, why be rcmembei-s it
2nd of ftlay J because that day the
irsal 8t. Omers acted a pfay, at which
\ had a scuffle for a f^eat : and* he says he
ikewise remember him to have been ibere
Mr. Pool came away, which was the
I of April, New 8tile.
l»en Mr. Conway, ihal was our next wit-
BcsB, ;jpie«you an account likewise of Gates's
ihtig^ to St, Omers about December Id? 7,
I bow long^ he staid there, viz. till the biter
tof Jun^ 1070. And he does not remoudjer,
t be by out of the cnliege above one ni^ht,
^jhat was in January. And he renieiiil»ers
^ rly ihat be saw bim with Mr, Burnaby
iy In May.
I we brouj^ht another witness, and that
Ha^g^l^rstone ; and lie tells you, he
I reaaon to remember ^Ir.Uate^, for he
Waaine classii^ with him; and this
I l^rei an account particulnrly, that
»b«rs bim to Ik: there tlie next day
» Bimtaby came, and agrees in testi-
ilk all thereat, that from Christmas
Limmer, he w«u> not absent out of the
ebut one night.
ijjaie nnotherwitocvs, Mr. Becston } and
nberw, that Oatct was playing at nine*
I Ist of May ; he leinendierH the 2d of
•y iohave iieen him with Mr. Burnaby after
Ibfi play «i utf Of er ; and that ag^rces with the
'^ ' witiuswes about his beinj^ in Burnaby's
f the ^d of May ; and he remeniljers
y tliat he himsellf was cho»en reatter to
pity, but upon Mr. Oates*& importunity
^' \ the place in Mr. Beeston^s room,
i tht» resenre aad cooditiou, That Mr.
Beeslon wi^ to be reader at any titnc, if Outefj
failed. And he {jives you this particular ac*
count, that Oulesdid ttiid, as he believes, every i
Sutidiiy and holiday, fnjra the latter cud of 1
MiO'b, w ben be was eho»en reader, to witbifi"1
II week of his jjoinn^away; for that he did I
never read himsl'lf, us he i»boubl have done if}
O.ites had bet n absent or failed to rend.
We have another witne&s, ami that 19 Mr*
Smith : and he swears his beiny; there fro^ii
Chiistmas 3677 to I^Iidsummpr 167B, mid he
remembeis particularly as to Aptil ami May* 1
because the 21st of April he hims*'U fell «»ick~|
in the college, and went into the inlirmary , and*]
remained thrre till the 7th of May ; and \\9
does remember that Gates visited bim very oflt |
in that time in the infirmary, and told him Mr.
Hilsley was i^one away, and Mr. I'ool wat ]
lyone away, and two or three other parUculari, ^
which hap(>ened in the CMlleife at ihat time ; **» |
thut there is another evidence, tliat U very ,
Ktron**" with circumsianees to confirm the tes»
timony of the rest ; and he gives yo i a very
satistactory iicconnt of it, by shewing the rea* |
sons bow he comes lo remember these thin;ra.
Mr. Price, i» bo was our next witness, haa 1
given you a relation ail to the same purpose of J
l>ates*i coming there at Christmas, and of his T
going away at Midsummer. And he remem* 1
bers particularly, that Oates was at Su Omert |
when the Jesuits went to the consult at l>tndon| ^
for that there was acouiinlt, and at that iiinc,
iis acknowledged to be true ; but not such as he I
•ays, nor was h« there ; but he says some of j
the fathers did call ill ere in the way lo Kng- {
JatuL And at that very time and after, lie khw
him there. And Mr. liuddingfton gives you the ]
same account.
Then comes Mr, Gcrrard, and he tells 3^ou
a story to the same purpose : bow long Outes \
was there, and when he came. And that the J
*id of May, be remembers Oates was at the *•
play ; and he remembers the 26ih of May, '
Oates was there, which was the 16lh of May
Old Htite. And he is sure Oates was there at 1
tliat time, for this reason, thai being tlie day
whereon he himself was conhrmcd, St. Au*
guiitine's day ; and Gates wascootirmed, with
him : and therelore be has reason to remember
Gates was at St. Omers.
My lord Gerrard ot Bromley was our neict
witness, and he gives you an account to the '
same purpose ; and to the general evidence,
in which he conBrms the oUters, he adds this
particular, That Oates used to read with u sm-
gular canting Utne so that he must neeih re-
member him, and was so remarkable for other
things, that he could not 1m? absent vi iihout be*
ing missed, which he oeier was.
Then comes Mr* iMorgan, who was there at
that time, a scholar; but he is now a minister
j of the church of England ; and thereiore nol
I hable to Air. Oates's great exception of rcli*
gitin, Ifecontirmsi'^hat all the witnesses wutl
of the time of Gates's corning, itrid o( the tiins 1
of his going away ; and particularly he ^wearii|
lliat ¥^cn Mr, B.iUle^ y(^\A %^v|^W ^^
4 H
1203] STATE TRI ALS» l Jam K8 H. l685.— Trur/ cf JUm Oaie$, [1904
there; when Mr. Pool went away, he was
there ; and when Mr. Bumaby came Uiither,
he was there. And this is not all, for there is
something more remarkable in his testimony ;
/or he tells you particularly he does remember,
That npou the 24th of April, Old Stile, the day,
gentlemen, ^ hen Oates says he was at the con-
sult in London, Oates was then at St. Omers.
And the occasion of his remembering this, he
gires you an account of; for he tells you, upon
reading the trial of Ireland, where Oates
•Hears, That he was here at the consult the
S4th of April 1678, Old Stile, all the college
reflected upon it, and wondered at the impu-
dence of the man, that he should dare to swear
such a thing, when all the college remembered
him to be there all the while. And upon re-
collection of circumstances, he himself did par-
ticularly recollect his own playing at ball that
▼ery day, and having tossed his ball over the
wall, he borrowed Oates's key to go into the
garden to fetch it : And this was thought of
whilst things were fresh, and every man remem-
bered thix, or that, or the other thing to be
done at such a particular time.
Mr. Arundel, who was another witness,
proves the general testimony of the rest, and
agrees in some particular things ; and all he
pays is to the same purpose.
Mr. Christopher Turbervile, he comes and
•wears Oates's being at St. Omers the 4th or
5th of 'May, which is the 24th and 25th of
April Old Stile. For that upon Mr. Pool's
going away, he changed his chamber in the
college, and saw Oates divers days afterwards
in his chamber, and at the door ; and he knew
that he constantly read in the sodality, and
that he letl particiilurly the Sunday before he
went away, wliich was about Midsummer
1678.
There was another gentleman, and that was
Mr. Anthony Turbervile, who gives evidence
all to tlic same purpose ; and this circumstance
goes thoroufrh all the testimony of these per-
sons, that there's scarce any body can come to,
or go out of the colle;^c, but it is known to all
that are there ; every man takes notice of it,
it is the common discourse an)ong<>t them ; and
therefore they give this as the reason of their
belief, that he was there all this while, because
tliey did not remember any thing that should
give them occasion to believe Mr. Oates was
Away from the college from Christmas till
Midsummer, but only one time ; and the re-
membrance of that does shew, that they do
really observe these thins^s, i'or they coiUd all
tell that in January he went to Wdtton, and
^taid out one night.
There is one witness more that is positive
and particular, and that is Mr. Claveriug, and
he remembers Oatc-s, by a very reniArkable
circumstance, was at St. Omers at the very
time the cont;;;regation is said to be held in Lon-
don ; for he tells you there came a person to
beg money of him, and there was a collection
made in the house ; and this person did desire
i9 sj^ ffitti Ofttas, wjio was Ui«q in the col-
lege, and whom it ■eems this penoo bid
known in ^pain ; but Oates did refuse to speak
with him, and did not oome down to bioi.
Thus he remembers such an one came there,
and when he was there, he was sent to Oates
to desire him to come down to this mao, lod
he would not. Ay, but now how is this remem-
bered to be at the time when the congregatitKi
was held here in England ? An to that, be
gives this plain and full account. That it nuMt
be at that very time ; for the scholars did din-
course among themselves, and were reckmiiB^
up what he had gotten among them, and what
he had gotten at Watton ; and finding that it
was very inconsiderable that he had gotten at
Watton, they talked among themselves whit
should be the reason; and concluded it wn,
because the fathers were gone over to £ogliiid
to the congregation.
These particular circumstances our witoeMi
give you as the reasons of their particular re-
membrances of the particular times : But, era-
tlemen, you must take along with you lL«e
general considerations too that are oficfcd,
which do affect the whole time, from Christ*
mas till 31i(Uummer. First, That none cm
come or go, without l>eing discoursed of io die
college: Next, that much more Mr. Oatn
must needs be missed, than any other, beiapn
remarkable a person, as they tell you, tint
scarce any week passed without his making it
remarkable by some ridiculous action or iDO-
' ther. They say he sat singly by himself, it i
I particular table, that no man could come iito
I the hall, but they mubt see him ; and therefore,
I if absent, must needs miss him. And jet
thej' swear they <lo not ever remember htm
absent, but that one night; and if he had beeq
I absent, they must neetis have oliservrd it, be*
: cause of all those circumstances that have been
' reckoned up.
These are the witnesses, gentlemen, that we
i have produced to prove this charge upon die
defendant, two of whom are brought ouly to
verify Mr. Hilsley's testimony ; havinif heard
it from him at that time that he had left Oatct
at St. Omers, when there was no thoughts ot'
this question.
j Now among these twenty witnesses, there
are not above two or three at most that were ai
either of the trials before. They were never
\ produced as evidence, though nideed tbey
proved the same thing that was testified bV
; others then, but with many other cimm-
> stances and particularities that were not befoif
I spoken of; some are now produced that wen
produced before, and the reasou is, becauie
! they are themselves concerned in those parti-
cularities which gave occasion to the othm ts
remember them.
Gentlemen, after the producing of ao manj
; witnesses, and so strong a proof, what is it that
Mr. Oates has nro<luc^ against it? His Diiii
, objection to their testimony is, There were at*
' veral that came from St. Omera to testify it
those former trials what these now s^ear, wki
( were not believed, but I wm bdieredi u' A<
1905]
STATE TRIALS, 1 JamkbII. l6ii.—for Pitjury.
[1S06
Ben were con?icted, condemned, and execut-
ed upon my testimonv : But is that all he has
to sav ? No, says he, I have likewise witnesses
lo o&r as a counter -proof to them, a positive
proof that f was here in Eni^land at the time
they swear me to he at 8t. Omers. And he
says well ; if that be proved, there is an end
cf the case. Wei!, what is the proof? The
witnesses that he has, have been these four,
Cicely Mayo, servant to sir Richard Barker ;
Botler, his coachman ; Page, anoUier of sir
Richard's servants ; and the narson Walker.
The evidence of Pajjfe and Walker, thoutfh
produced last by Mr. Oates, yet i crave leave
lo mention first, and set them out of the way.
Pk^e, he remembt'i-s to have seen Mr. Oates in
1 disguise at sir Kichanl Barker's, that is, in
grey ck>aths ; hut he is not certain as to the
time ; and he cannot take upon him to say
what time of the year, or what year it was,
only he behoves it was in May : and therefore
that can be no sufficient evidence to contradict
ititoesses, that with g;reat particularity speak
to certain times. As for Walker, the parson,
he said he saw him between 2St. Martiu's-lune
aad Leicester-fields; hut he cannot remember
Ibe time when neither : nay, the remembrance
be has of it <):oes rattier to' another time, than
the time in question ; for bein^ asked wjiat
dreuoiKtance he knew the time by, he said, it
was ab<iut a year and a quarter before the plot
«■• discovereii, which must be in April or
May 1677, a ud that will do the doctor no ser-
fire at all upon this question.
Now let us consider Mrs. Mayors testimony ;
and the oath that she made was this, That
when Oates came over into Kn^fland, she saw
him at sir UichanI Barker*s house the latter
fBd of April, or the beginning of May, and the
vedL befiire Wliitsuntide, the latter end o^'
April or the beirinning of May, was the first
time that he came, that she saw him ; but
t|iat he came before, as she heard, but the
CBKhman only saw him, and tiUI her that
Ottes had been there : but the si^cond time
Aedidaee him, and he went in and dined there
m the house. Sir Richard Barker was not
there, but my lady's sister, her sons and dauffh •
tn were there. She sa\s, that she saw him
igiin a week before Wlntsuntide ; that when
became the first time he was in grey clothes,
I white hat, and a short perhwig. AVterwards
be was iu black clothi*s, a pretty long |>crri\«ig
Ml very long, but the pcrriwig was brown;
ltd these are the circumstances she remem-
knto have seen him by.
Now let us see what butler, the coach rnan,
liys: he remembf-rs about tlie beginnin;^' of
ilij be saw Oates at his master's house iti a
C^piite ; the other said it was the latter end
^April, or the begiiming of May ; but I siand
>lt apon that : but this he d'>es swear, 'J'hat
te fifit time he saw him, (Jiccly Mayo saw
■Bi toOy that he was then in grey clothes, a
^bite hat, but his hair was cut short, and he
fid no perriwig on ; afterwards he came in a
•ccdouced coat, and greed ribbous,
and a long black perdwig. This is Butler* •
evidence.
Now these two people'li eviilencc are utterly
impossible to be reconciled, they contradict on«
another so much: first they contradict one
another in this; she says, the first time h«
came she did not see him, but the coachmau
told her he had been there; but he swears,
That she did at that time look out of the win-
i dow into the yard, and did see him as well as
I he. Another contradiction is this : she re-
members the firsttimehccame in grey clothet^
a white hat, and a short perriwig ; toe coach-
man swears he had no perriwi;; on ; but hit
hair was cut short to his ears. Then again she
swears the second time, he was in black clothes
I and an indifferent long pcrriwig, and the per-
I riwig was brown : and the other swears he was
'■ in cinnamon-coloured clothes, and a long per-
: riwi;^, and it was a black one.. Now thus yoa
I see the witnesses contradict themselves^ and
cannot be reconciled to one another.
But take one thing more, which is very cono
siderabie, wherein she contradicts Mr. Ger-
rard ; for she swears he was here a week be-
fore Whitsuntide; that she is sure of: now
that falls upon the nineteenth day of May;
then U[>on the sixteenth day of May, wastha
week before Whitsuntide ; now, that is a most
eminent <lay, by the testimony of Mr. Gerrard ;
f«»r that happens to be the twenty-sixth of May,
New Siile, and that was the day he was con-
firmed with Mr. Gerrard at St. Omers ; and
nomansi^re can doubt which of the two wit-
nesses is to be believeil ; and it cannot but be true^
that he was there at that time, because so re-
markable a circumstance cannot be forgotten :
and yet this woman swears that he was them
a week before Whitsuntide, and that by com-
putation must be the time of his ciinfirmation.
But, gentlemen, another thing that 1 ofierupon
the testimony of these witnesses, is this : if yoa
will believe it, he himself contradicts his own
witnesses, or they him, and one of them is for-
sworn : for he has sworn the consult was the
twenty-fourth of April, and that three or four
days after that was over, he went back with tlia
fathers to St. Omers : now this contradicts all
that his witnesses have said. But he has given
himself, as he thought, some little latitude ;
says he, the consult began tlic twenty -fourth
but it hcM six or seven days longer. We will
for this time admit it to' be so, and {jpve him
the six days he re(|uires ; and yet after all, it
will not come up to the time that his witnesses
speak to : for to the 24th of A|)ril, add six days
and that brings us just to the last day of April;
and then take fuur days in May, to make up
the three or four tlays after the consult was
over, and we are yet at a (^reat distance from
the Whitsun-week ; for that was the 19th of
May, and the week iK'fore must l>e the liKth or
13th, and so it is im|Hr(sihlc to he reconciled to
truth what he and his witnessi-s sw^ar ; either
tile cvidiMice that the doctor now brings, must
Uf* n contradiction to his own former oath, or
his oath pro^ea \U«^ ^m vojsfiokR^ >Qr»i^si%
1«7]
STATE TRIALS* i Jamss II.
the eontracKction thit is beCrreen the witncflses
themfelveR; for they tbtv in a great many
material circemstances, which I nave before
reckoned up to you.
But gentlemen, false witnesses are fery often
flelectisd by little circumstanees, though I must
needs say, these are not small ones ; for these
are very remarkable things in thenisclves, and
fpreat contradictions to one another, and thrre-
lore it is impossible they both can swear true.
There were some other witnesses that were
produced by Mr. Gates formerly upon this
Eoiot; one of which was Clay, the pnest, and
e,^ou hear, is contradicted by Mr. Howanl's
testimony, who not only tells you he was not
at his house when he says he was, but shews
that Clay was mistaken in [loint of time : it
was not in May, but in July. But that ik not
all, we have another evidence, gentlemen, to
shew how this mistake comes to pass, and
will give a great li^ht into this sort of practice
that has been used in this matter ; for we have
two witnesses that give you an account how
Oates and sir William Waller were at the
Gate-House with Clay, and there did threaten
biro, that unless he swore he dined with Oates
at l^Ir. Howard's in May, they knew he was
a (iriest, and he should he hang'd. The man
was somewhat cautious at first, for truly he
knew nothing of the matter ; but at last, upon
condition he might have his money again that
was taken from him, he had been a rogue for-
merly, and he did not know what he might do.
Now, we find presently aflcr, that he was in
liict broup^lit as a witness ; what he swore, Mr.
Howard tells yon, and you have heard liim
cnntradicted in thai point of time. For Mr.
Howard Ra\s it was in July; and then it
was npfrecfl that Oates was in England ; for
our witnesses tell yuu that at 31idsummer be
ciime away from St. Oincrs.
bo tiiat, gentlemen, the evidence that was
formerly pniduced for him, is not only taken
away iJy [lositive counter- proof, but there is
fixe<l upon him, with great infuniy, the addi-
tional crime of subornation, by forcing people
to swear for liini, under the threats of being
hanged ; and we all know ho\^8Uch people
lay under great fears and tcrroi-s at that lime.
There was unotiirr witness that was pro-
duced formerly for him ; but I shall n^take
npon me to repeat all the purtieiilar cvidcnee
that has bem now given about that matter. In
short, our objection to the testin»ony lies tints :
That Oates did swear in his Narrative, that
Hniith was a dangerous nian, and employed by
the Jesuits to stir up thft nc-ople against the go-
vernment; that appears ny Oates's own oath.
But it likewise appeai-s, that a^ter\^a^ls they '
were reconciled, and that he gaveSmiili a cer- j
tificate under bis band, that be wns a oimd Pro-
testant, and a good subject, and about eminent
service for the kiui;-. Now wc see no reason I
hitherto, why 31r." Oates should change his
mind, afWr havinir sworn him such an ill man,
all of a sudden lo be so kind to give him his
protection, and so advantageous a chajracter as
1685^7H«I ^ Ttftfi Oties, [180B
that was in that season. Bot, gcDtkntt, tie
mystery is easily unfbUed, if we ^ three or
four days fiirther in time, which bnngi m te
the trials of Wfaitebread and Langboni; it
seems Mr. Oates was then aware of that, wUck
is now an objection to his testimony ; for it was
made an bbjectioii at the first trial of Iretaod,
That be was not at this consult, for he was
then actually at St. Omers; but no witaews
were there to prove it ; but now he was awve
that some were a coming over, and it coa-
cemed him to make some food pmef if be
could, that really and in tnw he was bat ia
London at that time.
And I cannot omit to take notice of what ww
Lord Chief Justice was pleased to <
object to him now ; It is a wonder a nm
should be here in town so long ; a man thathai
much acquaintance, as it seems he had; a
man that went abcmt freely and pnbiidy, ai
his own witnesses say be did, should be tern
by nobody, but these few, should not be sUs
to give an account, by anj^ body, where ki
lodged, at any one time in this interval. Nay,
by no circumstances that nmst ocM;ur to hbowa
knoivledge, to be able to shew where he kidged,
is very strange ; though it should be that bs
did lodge in the houses of those tinit wouU wft
come to give evidence, as he alledges ; yetitii
almost impossible, but there must be soiae
other circumstances to prove his being berr,
besides the evidence of the landk>rd of ibe
house where he lodged : but he gives no ac-
count where he was lodgeit, and whom he cno-
versed withal, but these people only ; and tint
they should see him, who were not hu iutimatet,
and*^ none else in the world, is to me one of the
most strange things that can be €:onceive<l.
Now, Gentlemen, when he has given ns
manner of satisfaction that he was here, and is
by twenty witnesses sworn not to be here;
what is it that he says to all this ? wh\ he doth
insist upon it, that Ins credit must not lie now
impeached, because that once he had the for*
tune to be belie\'ed, and some men have died
and suflcred for it ; as if no perjury were to kc
punished, but that which is unsuccessful;
whereas the reason why perjury is taken notice
of in the temporal courts, is only because of
the ujiscl.ief that it may <fo. Shall it then be
no crinie wht^n a man has done the mischief,
uben the fear of that mi^icliief was the ground
of inakin«>; it a crime ? That is a most moa*
slrous way of arufuing. And yet this would
Mr. Oates have look like an argiunent, tbil
because he has been Itelieved in his false
oaths, and men haxe suffei-ed by his perjnrVf
and he has been successful in liis crime, that
succ<?ss has protected his wiekedness from
piniisbment. This 1 eoni^'ss is a new wav of
arguing ; and such as none but Mr. (ktrt
coubl certainly have invente<l.
IJut, Gentlemen, to contradict this, we hi**
shewn you, that as he has had the fbrtODCts
be beliocfl ; so he has likewise had the frniaar
to be disbelieved. For thew have been p*"-
duced as ninny records of acquittals^ what ht
STATE TRIALS, l Jambs IT. l685.— /or Perjury.
[ISIO
JS*^ crviilence, as tliere have l>een prodiicfHl
^^^ions ujioti his tesiiinoiiy ; m that he lus
ly J^ oftim disbelieved as believed,
^^^\Ker then does he betake himself next ?
^^ oulled a great many witnesses lo give
k|^^» evidence for hitn, in account what opi-
Srjj^ ^t that time the Houses of Parliament,
m^^Urts of justice, and the juries liad of his
^H^ce; and then insiststipou it, thai nmv to
[JP "\s credit in question, m to arraign the jus-
^ of tlie nation, the wisflom of both tfonses
jfyyiiamcntthal btJieved him, the honesty of
juries that convicted those whom he ac-
it\, and the integrity and understanding of
Judges, who were learned, wise, and just
; and with great earnestness he asks the
ion, why uovv at this time of day should
be called in question, which received of
ih credit and approUation so longf ao^, by
^ood opinion that all sorts of men had of it
lat lime ? and tiow to question this, be
Id have thought to be a castiuf^ a bhit upon
isdom of the nation, and an arraiflfuing the
« of it : when, if the thing: he (July codsi-^
I, the not punishing' this Eieinous of}e nee
the utmost severity that the law will
of, now that these circumstances appear
Lke it phiiti and evident, would be a g^realer
of injustice and reproach, mther to our
natioD, than any ways a reflection 4>n the juk-
Ji^of it*
^■Beatlemen, when we consider the circum-
^Bkes of this case now, I do verily think it
will appear to he a very strange and wonderful
thing- to us, that ever any man khould hiwe
beUeved him. And it is a strang^e consideration
to reflect upon, to think what credit he had at
liiat time. But withal, consider, ^nllcmen,
eoald any one imagine, that it were possible
for any man on earth to liecomc so impuderjt,
as to dare to expose himself Wf ore the hifj-h
eDurt of parhament, the ^reat courts of justice,
ADd there tell a most infamous lie for the
taking away the lives of men ? ihe jrreatness
(»f the attempt was a g^reat indueemcJil to the
belief of it, because no man could be presumeil
to dare the doing of such a things if he hail not
m foundation of truth to build upon* And w hen
he had thus made his discovery, and that of
Bach a nature too, a most horrid, bloody, ami
traitorous cimspimcy to murder tlie kiuij, to
©▼erturn the government, to massat^rc all the
Protestants in the kingdom, and tn deface the
▼cry name <d' the lVi>tcslanl rehgion ; what
was more uatuml than that the parliaimnt
should take all ima^ni^^ble aire to prevent the
accomplishment of s^i great a mischief i* antl
cotisider too, how much easier it was for him to
relate bis e violence in a coutinucd story ^ than
ilAerwards it was to maintain it, when it came to
I lie examined and opposed by them that were
;«ccnsed, who bi^sl knew wherein, and liy what
lH|£Rns to prove him tahie.
Hbcntlemen, the cure the parliament took to
^^pi»oint any designs of this nature^ and the
means they use*! lor the security of the kinsj
md king^dom, aad the pres«rvatiou^f our leli*
gion and lives, (which 1 cannot but obaerre,
was previous to the trial of any one ofleoder j
that was tried and C4»nvicted upon this evidence^ I
must needs put the w hole nation under gr^alf
apprehensions of dans:er, and make the way^
much easier for him to be behoved, as by sad
experience we found it did. Under these cir-
cumstances came those men to be tried, with
this furiherj (as we cannot now but thialt) that
there were ill men at work, that laboured to
improve tliose fears and jealousies that hail al-
ready possessed men's minds; the wonder then '
will be the less, if men, under such disadvan-
taij^es, tried by men nmler those tears and ap-
prehensions, had the ill fortune to be coovicleid*
But when men bad a little overcome their fearSp
and began to consider his evidence morecatmlvy
the scene was changed, Dates lost his credit,,
and the men were all acquitted. Nor i a this
prosecution any reflection on the Protestant re*
iigion, whole cause he falsely assumes to him*
self* No, gentlemen, the f*rotestant religion
had no share in that invention. It needs not
the support of a lye, no, not the most plausible
lye, much less of one so infamous as this doe» J
now ii[)pear to be. It is ratlier a vindicatioti Off J
our religion, to punish nuch otfeuders as they
descne, and the proper way to maintain the
justiceof the nation, and wi[>e off that reproach !
this man*a perjury has brought upon it.
L. C J. Then, geiitlrmen of the jury, t!it '
evidence has been very hm^^ ami it cannot be
expected, after so uiucli tiuie has been spent in
I his cause, and such a difterfnce of testimony,
and especially considering that the testimony j
has met witli frequent interruption*!, and I may
say some part of it i lei iv tied in great confusion,
it cannot be thought or imagiiie<l» 1 say, that I
should he able to remind you of the several
paiticulai^ that concern this case, and may be
necessary to he observed about it. But, geu-
tlemen, I am sure, by the knowledge I have of
most of you, von are jwrsoos of great under*
standing; so ttiat what may be omitted by m^^
t question not but your o\vn abilities will sup-
ply. 1 confess I am much shortened in my
lahnnr, by the pamsthat Mr. Solicitor has taken
10 sum up thu evidc^uce to yon, and without all
doubt, has iioue it with all faithfulness to his
master, and witli great right to himself. 1 could
not hear murli of what he did say j but you
who were nearer and did bear all, which I
could not do, your judgments will direct you.
to lay that weight upon it which it deserves,
and which the Taw will ullow ; fur, gentlemen,
I am bound to tell you, that you are to lay nu
weight ujMm any allegations on the one side,
or on the other, or what is tilwerved to you by
the court, further than is supporteil by the tcs-
tiutony that has l>wn oirei*ed.
Now, gentlemen, 1 tiling it fiot amiss for me
(before such tinte an I enter upon the conside-,
ration ot^ the pfirticulara, and reminding yoU
what [ take to lie the evidence in thi« case, and
wliat no!) to clear one point, that this person,
Oates, the defendant, igahigt wbocQ this indict*
mi]
STATE TRIALS* i James U. l6S5.— THo/ ^f TUm Ottes, [1S12
ment of peijury is brought, has endeavoured to
insiDuate, on purpose to gain himself a reputa-
tion ; which if he could acquire this way, would
add a greater reproach to the justice of the na-^
tion, than it has contracted already, by giving
too much credit to such profligfate wretcheb, as
have too lately appeared among us. The ob-
jection he makes and insbts so much upon ;
aays he, I was believed very much before, I can
produce you the opinions of the judges, that
declared themselves very well satisfied with my
evidence, and the verdtctsofjuries,twoor three,
that convicted men upon my testimony ; and
not only that, but here were likewise tliree or
lour parliaments that did not only believe that
testimony (or rather Narrative, for I cannot
call that testimony, which was given before
tlie House of Commons) that t gave, but did
declare their satiiifaction of the truth of wlmt I
said ; which satisfaction and belief of theirs did
produce thanks from both Houses to me for
giving this testimony.
But all this while, what Mr. Solicitor said
upon this point, is a plain and a full answer to
it: if in case upon a sudden information, the
king, the parliament, the courts of law, and
juries, were surprized into this belief, as not
imagining there could be a pack of such vil-
lains, that could be wound up to that height,
as these fellows have been ; tnat there could be
such an horrid impostor as this fellow, that
should make such attempts, unless there had
been some truth in it.
Therefore the surprize of the thing, at that
time, might obtain a belief; but God forbid,
that that belief, which was so obtained, should
protect the party believed from being called in
question for the fulshood of that testimony,
which was tlie ground of that belief. It was
hardly credible that any person coiiid be so
wicked as to declare such impudent falsities as
these ; but God forbid , that wc should con-
tinue longer under the same blindness and de-
lusion, the whole matter is now laid open and
detected. Therefore, gentlemen, if you are
satisfied in your consciences, and <lo believe
upon the testimony and evidence that has been
given here this day, that those ^ ery things that
were so much believed before, were credited
upon the surprize of a sudden discovery, or
the boldness of the undertaking, yet now do
plainly appear to be false; then be it, I say,
upon your consciences, if you let this fals-
hood go unpunished. It is a churge upon
us who are upon our oaths as Jui^es, and who
niusi answer to the great Judge of all the
world for our judgments ; and it is likewise a
chaui^c upon you that are sworn to try this
cause, and must answer, as well as we, for
what you «lo in it, not to have regard to any
thing, that was done before upon that hurry
and surprize, but seriously to weijrh and con-
Kidcr what is sworn now, and fn»m thence make
a conclusion, whether you are not satisfied that
innocent blootl has l>een spilt by the means of
titis fvHow. Nay, in this case, it is a contract-
Msig iff tauch more guilt tUau grdu^ryi 8a '\x \s
murder done under the forms of law, and com-
mon metl}ods of justice. That men shoukl
take away the lives of then- fellow-creaiurei,
by perjury and false accusations, is of siicb
dreadful consetiucnca, that if the justice of the
nation shall be afraid to have such matters de-
tected, there would be an end of all the security
we have of our lives, liberties, and wbatsoerec
is dear to us.
Gentlemen, the justice of the nation Iki
under a very great reproach abroad, ibr thii
particular thing ; and we must be, all of in,
that have any conoem for the honour and good
of our country, uneasy, till this matter betho*
roughly searched into, and impartially de(e^
mined ; and I take it to be a case of tbt
c^reatest unportaocc to the settlement of Um
kingdom, for the credit of our laws, for the ho-
nour and justice of our kingdom, that ever
came in judgment in any of our courts of jia*
tice. And therefore, as you res[iect youruwa
consciences, and the obligation of that mlk
you are now under, and as you wouM U
thought to bear any regard to the peace, ho-
nour, and good of your countrjr, take care Is
examine strictly and impaitially into the merilt
of this cause, and weigh the evidence which
has been given on all sides : he not at all dis-
mayed with the apprehension of clamour sr
calumny, from any sort of people wbatsoem,
for doiujr your duty ; neither be leif away bj
the insm nations of what was bdiered for-
merly ; for you hear the reason which migk
make Oates be believed then ; but it is iocuia-
bent upon you to enquire, whetlier you bive
not sufficient reason to be satisfied what the
truth now is.
And, gentlemen, I take myself to be the
more obliged to take some pains in the press-
ing a serious and impartial consideration of
these things upon you, because I canuot but
say, my blood does curdle, and my spirits ire
raised, that ailer the discoveries made, I
think, to the satisfaction of all that have. at-
tended this day, to see a fellow continue so ioi-
pudent, as to brazen it out, as he has done this
day ; and that there should ap|»ear no sbamB
and confusion than what wiis seen in the face
of that monstrous villain that stood but now si
the bar. The pretended infirmity of his
bo<ly made him remove out of court, but the
infirinity of his depraved mind, the bbckaets
of his s^pil, the baseness of his actions ought ta
be looked upon with sucii horror and detesta-
tion, as to think him unworthy any longer to
tread upon the faire of Goil's earth. You will
pardon uiy warmth, 1 hope; for it is irapoifii-
l)le that such things should come before say
honest man, and not have some extraordinary
intlnenceupon him.
Gentlemen, as to the merits of the causey
you have the positive proof of many witnesses,
whose testimony I shall by and by, as well li
[ can, repeat to you ; but, pray you, first |^
me leave to observe somewhat, as to soosi
()oints that have been started at the bar, a^
VSV\K\Vv^t a. ^aiglst cao be » witnaff NoTi
i ^
ilfl^S^
STATE TRIALS. 1 James II. i6S5.— /or Perjury.
[1214
HII&M persons that coine here to our jroTprument tn Ije destroyeiJ» our king to
s ntiDtfer aj^JiinsI I lie iftftemlant w<^re ' be murtk^retli our llim-jis to be cut hy tlie Pa-
slhey .irtMun, evoept jnucBn Jake it \m\s^ lo that bei^liL, lUal this rerv' tellovr,
ruuthsan<l coB^fcinjceH, ihai all iliesc Ontes, %*aii liO murh creitiled, ihiit all oilier
p-uilty ol" voluntary find wiNul per- p+'ople ahnoKr w ere bebw liuii, ami ^rt^ater re-
iiiusl Biiil fhedett'Qilant ^yilty. , spet^l shewn to liiui, ihsm to lire lirauclit^ofthe
leir rliflV-reiiee ill relitrioii wliich Oates I roval fiiiiiilj. Nay* if una cotiiu to lUat tie-
hitTiy; upnn, I iiiiist ii*il you, every ' ifree ol Tuilv, lo t(ivf it to rui wtir^ic oan*i\ that
lionian Cuiliolif, ol! therti hoiv you in |ni1>hc soeietie-., to liie refiroaih and iiituiny
(It theri^utrary be mack ajipear h\ ;i of ihfni be it s|iokeii, (Uis |iiodij;ntf nllairi whs
■|ition, I mean soch as would lake' off caressed, uaji dnmk lo, ai*il satuteil by thq
ony oforie tlmt witi* mil a Papistj is name of the Saviour of the natiou. O proili-
witness in a eouii of joslice, as any I gious iiiadue.»ii» ! that such a tiil*i as th;it was,
should evtT be given to such a prostitute monster
as iliis is!
L whatsoever: we are not come
ntrovert |ioinU of religion, hut to try
Iter ot fact ; so tliat all that stn*f*that
beard here thisi ilay Irom the dtlen
those iuBinuiitioiLS tljtithe madealnint
ion, on purpijse to ea^t tint and iiltli
he testimony that they linve broiiijht
m, must tiiflfniJy nothing m\\\ you at
I ca»e siieh doctrine bap pen to pre-
has ihisi d;iy p rear bed, then it is in
of any V 11 bill to suearaiiy mischief
?r atrainsi u Roman (.'aiholic, and
lau Cathohc has no wuy to viuilicale
or to make the truth appear, \Y e have
exceptions to witnesses in our law j
I, litl It is made to appear that hi» ere-
ited, may and outrhttohe received as
to give tcstjumny in any cm use ;
that matter is of no import at all,
full era en, 1 urn the ralher minded to
unto you, because he has insinuated
\ out of the trials of Grove and Pirk-
I Irtelnnd, wbteb was in Docember,
,r 1677, atwiiieii trial Wbitebreadand
who had [ileailed to the same indict-
e hrou«;httm to trial ; but liecause
hut one witness atjainst them, the
liartfed them for that lime, and they
a;;ain to trial till the month of June
hereafter, when they were convicted
te<l» Now between that tloie of I re-
al, ami the time when Whitebrcad
f^ came on to trial agiiin, says Gales,
sutticient time to have broug-ht all
esses froio St. Omers, to testify this
f my beiiic* there, having notice by
r Inal, wnat evidence was against
t all thft witnesses they did brin^f;
re about fifteen or sixteen, were not
to countervail the testimony that
^eof his being" here in town ; and
I they were convictetl, eomlemned,
mrds (I am sorry lo say it) executed,
the objection he makes ; but at the
B I must repeat what ( said betbre,
b a dbmal story as thtK was told,
had the confidence to relate it before,
uses of Pa rh a meat, imd there obtained
\ wonder if, in that hurry, all of that
I were looked upon witb an evil eye ;
DnnctioQ of tiiose thai were &t that
B€d were too easy.
%X remember the apprehension?? some
l^of 9Ur rt^b^ion beiii|f to be subr^ted,
of un piety
Good God, whither were we running, when
man}' easy pf'*H'^*^ were so straoi>tlv wrought
upon by tins impostor, and when tbe villain-
ous ami black design's ol s^nieevil instrument*
amongst us^ could prevail so far, as to deeeiic
almo^it a whole nation into the liehel'of so horrid
a lakehood ; even at the tiame time that a
hidden treason too deeply eonlru ed, w us carried
on aiuougst us, but, Goil be tbaiiktd, was not
too lately tliscovcrcd i* The eonsjijiratore had a
fair game of it whilst this tellow uas l>elieved,
and thev needed no oih**r iiieaii^ to accomplish
their deKi;;n : biii when he was tbuud false, and
tbe prett uded Plot liad lost its credit in the
woilcl, what ii^ their uexl »*ep ? Why, then
they enter mto that bJack *»ud hlomly conspi-
ruc\ , from which it iiatb pleaded God lately to
deliver us,
I spe»k this the rather, because I know
there are in my eye several persons, whose
fears of Popery made them givB credit to such
villains as the^e l>etbre : hut wbeo it pleased
God to Open their eyes, ami the false naist va-
nished, tiiey found a real conspiracy against
the persons of ihai blessed kmg, lately dead,
and of our gracious sovereign, now living, car-
ried on under the pretence of that false, but &o
much credited discovery; ami now, God be
tliankeil, all our eyes are oi>en. And I hope,
as WK are Si cured from what we so vainly
ilreaded, so we shall not be afraid to have vil-
lainy detected, and the greatest mark of infamy
that can be put u|iou it.
Yes, gentlciuen, there tvas a consult^ and *
there was a cotis piracy against the life of our
king, our government, and our rebgion : not a
consult at the Wlute liorse iu the 8t rand, hut
a cahal and asiiociatiou ot' perlidious rebels and
traitors, who had a mind to embroil us in blood
and coufuiion ; hut, God he thanked, it had
not its desired effect. The same sort of vil-
lains were parties in this conspiracy, that had
too great a hand in the late gif^at rebel I too,
which we to this day feel the itmarl of, and
they had a mind to make use of tbe bke in-
struments, as they difl before, to bring us into
the like misery, as we were betbre involved in.
And is it not a prodi^ous thni«' t.i have
sucli actions as thee** ' • urt
of justice, with '
edo<»Sf as i
God Almigt)
STATE TRIALS, 1 J am ES 11. l6U.^Trial 0/ Tdui OtUa, [lU
I
I
I
blaspliemoiisly blesses Goil« llmt lie lia9 lived
10 do inch woDderful service tu the Pn»t«?*itanl
rclipon ; and is so obstiDiite \n hh viUainy, as
t« de^lnre he would venture hi** blood iov I he
<!onfirtnaUon of so impiotis a tkbehoiHl : and,
iftdeffd, to Hjteak t\w irutb, be makf« uo ^cat
veuture tQ tt; for when he bad imirned bit
iiumortal sou!, by m perjured a lesiimooy^ he
may Tciy easily proni^r th« veuturiug' of bis
vile carcase to maintain il ?
Gentlemea, having thus sald^ (aud I could
not forJ»ear saying" of it) give me leave to put
you in mitid of wkat lies before you now to be
tried. Pir&t, this inibctmciil laJ<es notice, that
there wa« an indictnieat taken before the com-
tniiBionerB of Oyer aud Terminer, and g-aol
dehfery at Hicks's-ball, of high treason ajfainst
Whitebreadt Fenwlck, I j eland, Pickering", and
Grove, and that indiclnumt and the whole re-
cord is proved to you by 8wift. For I must
tell yuu as I go along; w'hat proofs there are of
all the particulars, and y^u, upon consideration
of all tliat is alleged, are to bt judsres what is
GutTident proof to convict the dd'eoilant of the
crime that is laid to him ; tvbich m wilful and
corrupt perjury. The indiclnient» gen lie men,
sets forth the iiath tbal Oates did make at Ire-
land's tri:ilf and iben aver^ it to be faUe : tor
the oath that he did take^ that etaods thus :
that be di<l swear he was present at a consult,
held at the \\ bit« Horae tavern in the Strand,
the S4tli of April 1678: ilmt be did swear, that
it was there resolved to murder the lute kionf :
how thtit that residuiion was carried bv htm
from chaTiiher to chamber, that is, to White-
bread^s nnd Fennick's, and Irelaiid^sciiandiers,
and saw them sit^^n tbi!» rewiluiion there : and
the alignment of the ptrjuiy i^t that be was
not present at any consult, 'lis not that Ibere
WHS not any such eons u It, though it appears hy
the evidence that there was none such, but that
he was not present at any consult at all held
there at that time.
Now, that he did mako sneh an oalb, is
proved by a worthy gentleman, Mr, Foster; a
gentleman known to you all tbut live in tlte
city of London ; aud he did truly make that
remark in the beginning of bis testimony, that
any honest man m his plate would have done^
that he was one of thofte uuforlunatc men tliat
trie*l ^1r. Ireland ; tbr ihnujifh a man do go ac-
COrdintr in his conscience, as to be sure there is
no <|ntvtirin to he made of it, but all these jury-
men < fid in finding that verdict; jet when 1
come io find, that the evidence upon which I
convicted thos« men, is delected to be false,
and that u]>on mv verdict the (lersons were
executed j though no guilt of iheir bbjotl is
really contracted hy me,^ yet I cannot but think
myself unfortunate, that 1 was» tl»ough inno-
cently, an insirument of tlieir death ; and there
is never an one of you » but would Imve thought
yourselves unibrtuoalc, if you hod convicted
men upon such a tcbtiuiony , which though you
belieyeJ then, vet afterwards you should have
feajoh to conclude was false. And yet Oates
would bafe you tbiuk, that because they be*
iMtvfliifll
lieved liim when be was a vilUit, lad m
known to be so, you must b«hefe bo, Mt^
witht»taiidin2' his villainy is now <iuti>fmii]
for that U all the argument this learftdd
has a mind to impose uiH>n von b^^
Gentlemen, Mr. 8oticit4>r has bwtr terra
ticular, in giving an account of the wyej
dence, and then it comes to tbtt, wbieb if
natiiral question m tlie case ; wbdliefi^
the tc^Uuionies that have been gif«a te }
titere does remain so much as u doubt, wU
* enlict you ought to give ? For 1 oafta I
were it a thing in the least doubtfid^ nstftlfff k^M
perjury are so nice and tendur, tblftii' Mttl0
3 ou ought to be cantious bow jou wo* j
penile lor |>erjury in doubtful matten; Uf J
It be a thing without doubt, and ^J^
dent, that ibere v^as a verdict
adds to the guilt, because the justice 1^
tion is imposed upon. The God 4 1
deliver every honest man^s soul andc
from such guilt! For mv part^ 1 would b
the universe have the (east rrudl of 1 ^
lilood lie upon me*
Then, Gentlemen, to prove what (Htcti*^ 1
is not true, you have no leas tban tiveDl|f'|M I
witnesses, tnat swear directly he wa» aol hmM
in London the 24th of April 1678. Bt
be, that it is not such a |Ki»iiive tesC' vmj ■]
the taw requires to prove a perjury : b
swear directly that he was in another ptaea
that time, is a posiUve eontradtction to ""^^
deuce, and this has been Uestitied by
of twenty- two persons, agaidst the
whose testimony there ia no obj<
really made, but only unpudence i
shadow of an objection, tt^ey are all
and I am a Protestant : and truly a
credit it is, 1 must needs say, for the
Heligion to have such a learned aod pimif '
porter, as Mr. Gates, to be of lbalpcrwiMMi»
but it is ceiiaiu there was a Judas aiaoDgittli
twelve apostles, and there are rascals otft^
pei^uadona. And trnly I take tt makisa0tf
the more for his advantage, noc the b<Miottr •^
our chui'ch, that he is ples^ed to call bitm^
by that name, %vhirh he, and such as br« bfit
brought into some scandal aod re|iroacfa. If
setting themselves up, as the great fHlbnfifiti
but we know Dr, Gates has iteen f eri Bm
to himself, he has given hiuAself bagtiSQi,Hi4
givf n himself the doctor ^s decree, tad noiv It
gives himself the title of the reliifimpg 1^
testanl, Mr. Gates. We hare ProlsitaBiii*^
maliers, and Protestant joiners, aod Pn^taOit
Atheists, and all sorts of tnte Protestaatiaieali;
but it becomes us and you to assert the bflssv
of our religion, by dtsowiuD^ any Udihwdif
with such villains, or their actiona.
Gentlemen, the method that waatalceil» fNl
you an exact account in point of ^
this whole business. First, says Mr. Hi
left him, in time the 2Sd of April Net
at8t. Gmers, and I am ^
then, which is the 13th O;
April New iitile ; which is Uic I4tli (114
I came ^om St. Gtaerit X dij^ aoi ;
1217]
STATE TRIAI-S, 1 James II. 1 685.— /or Perjury.
[12IS
that mornincr, bnt T myself came to Calais, it
being Sunduy, ntid 1 st'aiit there till Sunday in
the ut\emoon, and all ni«flit. I came on ftfrm-
dmy in the aDrrnoon to take water at Calais,
ind from thence went to Dover. And fmm
thence the next day 1 went towards l^ondon ;
but I staid four ur live days by the way before
icame to London ; but tliifn there is this cir-
cumstance that you must take along with you,
gentlemen, that at this time, one Mr. Burnaby
wMcoroinff from I^ndon. and ^o\\\^ to St.,
Omers, and met with Mr. Hilslcy in his way'
towards f /mdon : says Milsley, l' came nlirr-
wards to town, and tliat was upon the Alomlay
MowinsTi which hapiiens to be the 9 1st or ?'2d
of A|ml, onr stile: butjhis I do reir.f>inbi*r
very particularly, whii-h makes his testimony
to he true, and not dressed up for this occasion ;
toys he, I told our Osbnrn at that time, that
^mt had a pretty fellow at St. Omers, that went
■omettmesi by the name of l^ucv, and sometimes
by the name of Gates, a minister of the church
«f England ; and there he com(*s and i^fives an
aooount of his ridiculous childis!i actinns, and
what a remarkable tellow he was ; and this,
nys he, I told to Osburn.
Now, to maketliis ;.'oo«l, you have one Mr.
Dorrel, \%ho tells you (here happened a dis-
vsorse, where he was present, beti»»'eu his mo-
ther and Mr. Osburn, about relis^inn ; :ind
aOMHigst other things Osbtirn did say, Mr. Hil-
ifey had t<dd him he le<t O.iles at'St. Omers
when he came away from thenre ; and Rir.
fMrnm, he comes anri says, 1 remember I did
tHl Mr. Durrel and his inother, at that time
that Mr. IliMcy did tell nic this story : so ihit
here are these twti witnesses whii-h siip}M)rt
Vr. Ililsley in that circumstitiin* of the time
•T his commg away, and his rrlaiiou 6f Oates
being left behind him. ami that this was related
about the 'i. 1st or 22<l of April.
Burnaby is the next per<ion that was pro-
4acefl, and he swears \\^ met iliUley by Sit-
Imghum ; and he happens to set out tor St.
Oniers the 18th of April, our Stile, and to conte
tiuther to St. Omers the ^Ist ; and he swears
.pMitirely that he was there the '^ 1st, (2'^d, '.>:id,
•ad was'thcre the 'J5th <hiy of April, our Siiie ;
and he dm's pn^iiiv(*ly atiinn, thnt all thosu
Aya he saw Oati-s there at Sr, Omei-s ; ih.it
"Wea intruded into his company at his iiisi
cming ; and that he and »lt thi*' e-thers seho-
ins wondered at tlieeonlhlenee of 1 lie man ;
lad he panieuiarly renicnibfrs thnt he w;is \viih
Mn at a public enit-rciiniuttit ih:it w:is tiietf-
the SAth : »nd if so. tlien it is impossible th:<t
What Oates has suom of his h« jn*^ at the eon-
toHtbe 24th of April, onr Mile, r-m he irii(>.
Ami except you cnn iinni^im \fr. O.-ites t'> tl;-
ftom^Ht. Omei's i):e '.Mlh day in the ut'.^niin:;
tad be at the consult and \\\wk •.\\r\\\\\ at n'-;l!t.
"Whieh is miM-e than he woidd haw> In hewl,
Wcause he swears the contnry, \ on must con-
Qhidethat what be Nuore \^:is fuUe.
The next witness is Mr. l'i)o!, anil he eomes
ftwl says, he was there at St. Omers, and he
»orer from thence Uic cj^th of Apnl, and
VOL. X.
tliat was the day after Oates sweara the consult
of the plot to Iks here ; and all the rest of the
witnesses do directly swear. That nt the time
that Pool went fronr thence Oatts was there :
80 that the testimony of Pool is fully and po-
sitively conlirmed ; and Pool gives you a rea-^
son why he came over, which wastlic death of
a brother of his, and upon a pros|KH*t of an es-
tate he came into £ngland, which likewise is
I a reasonable circumstance why he shcnild re-
' mendter the time, because he had such indiice-
I ment to come over hither.
The next, (lenilemen, is one Thornton, and
he comes to the month of May, to the Isi ami
'>nd of aiay, their Stile, which was the 21st and
2,'nd of April, our Stile ; and particularly ha
is sure Oates was there upon th*; '22nd of April,
our Stile, that is, the 2nd of 3Iay, their Stile.
For, says he, there was an action or play of
the seholai-s ; and I can tell you how 1 remem-
ber Oates was there ; Oates had a mind to hava
a place to sec the play, which he had no pre-
tence or title to, and* ho had a scufHe with
somebody al)Oul it ; and therefore I remember,
by tliat lolien, that he was there at that time.
' No'.v, f ;cntlemen, it is not easy to be ima-
gined, that six or seven men should agree in
their lejtimony in all thesj* circumstances,
which in thcinseUes are hut minute ; yet
u hi«:i ofVi-red ns reasons to induce men's re-
nieiiiliranee, »rmst he allowed as good reasons ;
and yet ibis is to he thimght but a made story.
If siV Kieli.inl Barker's co:ieh-man and Mrs.
Mavohad Ind any such cintnustauces to sup-
jKHt llr'ir tt"«tim'«ny, they would ha\e hud
mueli more cm lit.
Then there is one Conway; and it is very
obs: rva'de wh:*t he sjH-aks ot'; for \\v. was
thwre all the whde that they Siiy 0:ites was
there, and he s<[iv; s you an' account that ha
saw him with KurnabV the first time he came ^
over, and anfrecs witb'l^irnabv in this, that ha
wondered much nt his contidenee, and diil
think that he was very well known to him
betbrc : he swears Ofitt'^s came in thither about
the bt'ginnini; id" December 1677, and he was
not a!)sc!nt, says he and several more, any one
ni:fht, exeept in .l;inuary once at Watton, till
\u) w int away ui .luiie 167 J*. Nay, they arc so
precise in their memory for vyry ;,^ood reasons,
heeauM* thev are so rf\fu!ar in their pm-ii ties,
and ket'p a' sirxt ivpler, i-uLh has 1m«» fixed
place in the re«W»tory, wlieit: all theSieii. or
\ tlie mvinh'/rs of the <*ollc;r«' do mt«*t ; nn*! ht-
1 canso this f« How was an <ill 1l-11ow, oMer than
J till' lesT, v\v\ lik«'«ise mrs a dunc^-, thers'*or«
I he was set 'A tiie dim'V-tnb'e in #;very bo'ly'f
! *icvv, h'-.trxiis" he w.is a hloeUMeid, and too old
! to ke« p coiiMi my wiih the bo\ s: yo that thonj^h
I perh^js one of 'those yo«n»v;' fellows in a nuxt
I '"orit"»v mnv esewpc tlie \itw, and be absent
I x^ithout. h'Mni^ in'is*ied, y.t remarkable 3i(,
; 0.«te.s isivit si»eas ■', fo**^o:ten, tint us|ed to Mt
• by himself And as thai noble lord, my lord
I (*errari1 of Brunt^t y, s.iys, he has a particular
■ face, ami a partiroiar lone ; and tliera was
morereawiu V» t«imLTW Wm.^^^wv^'s ^Q9^aKt>
41
1519]
STATE TRIALS, I JAMtftll. l68^.— 7W«lo^Ttfif* Ott^
i»oth upon tbe accouiil of hif) person nod of liis
ictioas : so that I must needs nay indeed, it is
not a dovwrigbt and poftitive r^earirtg^, l»at
tlic'ir tefitimouy is m^etk with dt'ltbeiuiion und
recollection of fuch partictilnr cii'ouiTistaocea*
m loay reasonably itiduce any unprejudiced
person to give ercdu to it,
Tbe next witness, Gentleman, i« Ha^g^er-
one, wbo«e evidence is Honderl^i) parttonlar^
lid very material as to ibe circnmiitances that
ccompany it* For you are to obseire, tbat in
I these colleges some are of the iodalilr, and
omeare not ; aad some are of such and such
ilasses or forms, and otbeni of other. Now
llihis gentleman and Mr. Dates were of the
[«imc form, and he docjs particularly remember
"^ i be was setting- up for a preacher, as he has
llent koBck tiiat way ; and be teJfo you,
riidiculoua he made the late king in a ser-
Jfeaon ; tbat ha hatted between two opinionSi
tmni\ there ran a f^tream of Fopcry between his
ijpgti ; Mild such like precious stuif be vented.
Aui\ to tix it t4) be abr»ut tbe same time tbat is
I sow in que^ftion, lie says, be particularly re-
' Hjernbers it was i* ben he was reader, when
) Blr, <>atcs was, it se«mSf tbe buffoon to the '
i iociety, or as I may call bim^ tbe jack- pudding |
t^ tbe college, tbat ujeeil to maki^ them sport,
I and vva^ guilty oF so m^ny ridicukiits tbings^
Ibnt they could not but put partictilar remarks
^lipon him.
Ne\t, 1 take notice, tHat tbiii per^ott- says^
I ibere were two persons, VVilbains and Marsh,
I tliat were quail tied to give sutirages in the con-
I gregatioo, that is, tbey wei-e p&st eiglitecn
years slandiug, and did go over : for tbat there
was a consult, is not denied, nor tliat it was in
liOndou, nor tbat it was upon the 24th of
^pril ; buitbf'y buy, it was a triennial meet*
jng, whiclk tbey u^d to hav^e once in three
ycarijfor the choice of some officeis M manage
tlie affairs of tbe society ; as for tbe choice
L«»f a profinciai, and other peiiions tbattliey
verc to send upon their errauds, in order to
the support of their soetety ; so that under
tbe colour and countenance of what was m
itself ordinary and usual, and that happened to
l»e at that time, OateSg who had beard some*
Hfhat of it, and that it was the 24tb of April,
and that such and such were to be there, be upi>n
that hearsay, as should seem, at St. Onoers,
does feigu and coutnve this pretended coo-
i|nracy.
The next is one Bce$lon ; and it is f er? ma-
teiial too that be swears: for besides what he
iestities, that from the time of hit cotniog,
which was in Decemlier 16n, he was not ab-
sent liU tbe 2&rd of June, %vbcn he weutaway ;
and for tbe time in quefitinn, he very well re-
nieudjers his being there, by tliis circuuislance ;
aays he, I was cTiosen to be rvader ol" the so-
diility iji, the uinntb of March, but then Outes
comes andgtts the office out of my hiimls; but
atill iiith tne there wuii that benr*fit re^rveil,
Ihut if he should at any time fail of reaihng
there upon Ji J^unduy or a holy-day^ I was f ben
lu havtf read,aiuito. hav# iuppticd Um place.
Says ha, I iraa there from
tlmeOalea went away 0i iaaet
read there that ^ery .^liday hdin
m June tbat he went away. Ali4 li
heunl him read every lime ; aodiae
not reail every time, 1 nmai hate
absence ; but 1 did ool read at rfl (
time.
Now, GentWmetir •ben a naa
or to supply the abseneeof aiiatli'
that is pecaiiar aslo the cbai]geiacuc
the officer, and cooskterable as te *fe^J^
it, that m\»st needs make an »™P''^s??^^'*^
tbe mind, and give a man a more exw^^^ ^
brance<^f *' - *^-"*_- - --i therefuf^^ r
mend it *
Tbe lii ,, - ...lii; aoia, j^_
saw Gates til ^ Umc; aia^i^j^j
part of it, wh lusclf was ir* the 1^
mary, Gates went lo visit hini <^»*f^f,y^
three days ; nay» and about such t ij^^i
May, says he, which was about tbe^j^ t
of May,' Gates being then in the inffnta
wdl, trie Doctor and he hs'!
togviberi and Gates spoke
Doctor, for he ^d, * Si p}*iC«T fA
*' vestra,' in tbe beguimiig of bis v^
this he did particularly say was tbr up
that this exceUeut scholar used to tk f^^ *
eian at bis 6rst applic^tioD to him, ^ j!* 1
whole college took notice of thai ptiKS^* I
learning.
Tbe next is one Price,, and he tsQs]
w^as there all the lime that tbe oibeti^
he remembers him very well, aud |
saysi I am sure Gates was there i
B'fay N* 8. which will be the ftrattif ]
because, says he, 1 know be was sotui
tbat day, upon i quarrel thai he L_
This particularly he speaks ta» beitta 1
iQembrance of Uie other circumatatte
currence with tbe former wtitieaies.
Mr. Doddington swears the same, aa^l
Gerrard also swears the same, wttii tftai <
particular circumstance that Mr.
peatedto you, which was of OalcaVI
upon the day of contirmatJOD, tiie S£
N. 8. the l(Uh olMny O. H. ainl b^]
it, becaase he was conBrmed i
and thereibre it is impossible be ;
it : and my lord Gerrard, who was
this reason upon bis remeiubraiM^ of i
fore -mentioned parttculars, tliat he
look special notice of tbe tnan far liis (
tone, bis physiognomy, and reu
haviour.
Tlien there is Mr« Bf orgiin, wKa is no 1
hut a mini^tcrof^e Church of l^n^tuidj
51 r. Gates was sngry with ull tUe re^, li
they were Cathohcs ; but what has he
to 5lr. MnrgBn, who is a l^rotcitaat f ]
the trull I iS| there are none of ihem j
lieved, because tl>ey swear _
really be oufjl-J in \h^ ja*>rfi+itt*»,J to j
reuson, or ii uird
tor it in cjls iiiini|
tei»tiiiioDy that baa bees gitaoj it as i
PATE TRIALS. 1 James IK iC^y^fw t^ftjuty.
[l^t
But whut 8*y« Mr, Morsfan ?
1 4900149 up to tbe 24lh of April (mrticu*
1 be tells V tilt how he rerncmliem it ;
► fiftt <KT!' ' 1*1 to look iiitokvr,^,
»t|allsui| St. Omers tt wkM
I sworn, aud Mr, Mor^fitii recollect.
I hiinidl', ilid remenilier tliat very ilay
jfiiig af * : '' iliin ihe coitee, ami
[ 19 tABv vfiT the w»h iut*> the
tdsot b^iim nuiv to recover it in iiny
ay, be^picfl O^Hes walkriijj and looking^
J ii.^rH'o^r he (leBired him lo
lUe hflp o< that, fee
- ill ; tkud tlus wofl the
xvorn he wtks here.
irilruiM ' ^ the same : ihe two Tur*
■ say Ike ««nie ; and cue of them is post-
RmTeiecu btm ihcr<»» i*ith<>r the 24th or
|r 23rd and 24lh of .^pril 0J$. which is
" iumI 4th, m 4th and 5lh of May N, S.
! iif these tlsys, it caimcit
In> here at tlie consult.
next >s x^ir. *_ laveringf^ and I cannot but
Iv t*ke notice of what he has sworn ;
Mr. Qiftttss waa there all the lime that
apedc of; but it seenas particularly
time of the coogre^tioD in London :
es iti a «tranger that was poor, and
lemarii Mr. Clavering', mad« a collec-
Itttn: and it waa talked of in the college
why He had not siiccesa in his
saoaethe fkthere were gone to the
. Nay, and yet farther, says he«
Rib^r particularly that Mr. Williams
Marsh did ^ orer to the congre*
■tea did not ; for I do remeniber
lis and Marsh came back again, I
iscourse with Mr. Gates about the
^tion ' he came to loe, and desired to
^it account I was able to give of
it meeting aOer the eonstilt
r. J^o*% had Mr. Oatea beeD there,
% a fierson of (hst great trust that lie
iftl himself tntm, he needed not sure
Mr. Clarcring at Hi, Omers^ what
of the consult was at London,
m himself had heeOf but the other had
t ia, besides Mr, Copley » another wit-
Cooke, that speaks particularly of
tut A\>\i\, that he was sure Gates was
I, because of the procession, and be-
indki^ by himself in it ; and Wright, |
vjlneaa, gives a general account, but
AH particular time.
, Gentlemen, atier all this evidence,
vf>Ti rn" ♦ :-!ve me leave to hint Tiri-
^i»rohable oath was that
^ L,. made, if il be considere^t
Can any man believe that
khoulrl meet tom^her in a tavern
s should Ciiine
iiti I ; vtid subvert the
, and ailer tiie rtrhibf ton ; and that this
► being drawn up m the tnvem (lor
I it wan), they should sever them
, they 1
r clubs audi
uidtiIcA
cni-e tiiat none should sign wlienihef^* were all
toi^. liir and among tli%niseUes, but Mu^ei hava
it carried up and doun from one amu's chum-
her u* anoiher^ and Hud no body to tru*jt wifh
tJ»ii4 affair, that, if di*w?ii*criHi, uitj\t subject
thdtt to pin?fieJ|l de^iuclion^ nud ruin tlif^r
wliuie party% but only ftlr. Gates, who was
fione ot tbeir own order, nor does ap|venr to be
of such credit amongst them? C»i» you be-
lieve any men should be so void of seuse and
re^ison.that of titty together^ and those reputed
as stiMle as any sort of men whatsoever, there
should not be one man of common understand*
ing, that should take care for a more rational
management of £0 great and hazardous an un-
dertaicing ; when they were met together, zmd
might have dispatdied it in a quarter of an
hour, they should separate themselves into
several parts of the town, and trust a resolution
of that nature in Mr. Gates's |KK.'ket, in whom
if they had had niore confidence than they
seem to hare, yet it was folly and madness to
give him that opjiortunity of destroying all of
them, and making biiuselt? Were iherp no
other evidence but the very testimony of thu
thing, it would go a very great way vntli iu€^
I confess ; but I must say withal, y ou ara
judgts of this fact, upon a superadded testi-
luony of U2 witnesses, t^frci voce ; I thiidh. ii
leaves the thing without any doubt.
Gentlemen, ihe ans%ver given by the ile-
fendaiil to this charge is very fallacious ; and
though he puts such a countenance u|N>n il,
as though his witnesses were such persona of
cuedit, that nothing coidd he objected against
them, yet he is certainly very much mis*
taken in that : he has produced but two po<
sitive witnesses, and those two, as positive as
they are in tbeir proof, are likewise posiiive in
their amtradictions of one another, and whai
they have said is left to your consideration,
'the one is a coachman, the other w as sir
Richard Barker's house- keeper; they indeed
ilo say, sir liicbnrd Barker's wttfe'* sister, and
his nephew, and his daughter, and his niccu^,
and a worshipful kuigtil, and i know not who,
that the old woman telk me nre gone into my
countr>% were all there at the same time, and
nobody comes lo lesltty it, but only this coach-
man and this old woman : these, gentlemen,
are things fit to be thought of.
But now let us con^iider how they agree
their evidence. 8:iys the woman, I saw hitn'
not till the begiunuig of May ; but I am fun-e
he was there before once or iwice. And how
does she know that ? Because the coachman
told her so ; and he came there severul times,
but he did dine there but once ; aitd when he
cam«t there the tirst time ahe saw lum ; he
came in such a disguise, and he had a short
|)erriwig, and a kinu of shttrt white co»t, and
a white hat* But when the coachman e^^mes
to swear, he tells you, the Arst time he ^m,w
him, the woman saw him too ; that be hud
own hair, and cut cloae U> his ears, lliat nis
hiiu look, as tlie young fellow told her, like I
Qjiakor. And wb«a i asked tha akachs
mid 1 am sure it was whcii tliu c>\it of arm^ j
tiun^ over tlie flor>r, biTaust' he KskM i*.ir ahour i
»ny luily's (Iciitli. and th*.n:lnic it n.itsX Im in i
May ; w Iicmi, i'ur anjjht ilot-s nii,»ear lo tlir con- .
t^.i^'^ , il luiulit be in :iny (ithir lu'niih alu r ilu* !
cscuii m'nii \v:isup; an;! in tiic ollu-r firciiti.- [
wlainc's thc-re is I'O nrtainU at all : st» li.ai ii '
IS ]iLin, llirs** wiiri' -^scs h\\\Mr afcj..'«ii!:^ as
ihtir hiimiiiif limU lln'iii, am! not acL-':nIajir to
any rciiirnilnunr:.- tl:i-y !ri.i\c M'thi; ihimr.
Aiifl I ratlier belicVc ir» because ibe tl»iril
wiint-ss, that is IV^e tlie apothecary, that used
to nulic ii|> sir liicliard harkcr's'mctlicines,
ffivis an cvidfnci! rositrary to both those; he
r.mn.it nineinbrr the \oar positiTely or par-
ticiiluily ; hut I'll tell you iiow he thwarts and
rontr:iiii( In tUkt other pL'Ojde*s tcsiinviiiy ; for
]i«; rfisiciiibt'i.N he raiiK. in sncii a dist^iiiso, but
l»ebc-lk!us iiob'jdv "poke to hiin hut himself,
l)i'cau^' he found him walkinir in the place
that wua for the coniinon rrception of the pa-
lifiifs ; and In* a?»ked for Dr. 'ron^-uo, and he
not Ih-'iiii; within, he wt-iit away very discon-
tented: and N(i now these three v«itne*^scs seem |
t'leoi.tradiaonc anoiher^ ai/ii the last uiiiuss I
V/alkCT, who is the parson, ho say.i nothli'^* •
10 the mutter; for it does plainly appear, lliej
limewliieh lie speaks of, which was about a !
year and a luilf before he was called to testify "
at thsj fi\e Jr>..jlts Trial, must be in the AeaV !
}'•(/, a^il not i.t the >ear I(>78, whirh is the !
r|u.siion hiM\\ wliieii must bo before he went |
Jirst to Si. Oojn-:. I
<Mnil"oun, theo;!jrr part of ^^^. Oatcs\ '
i.'rhnc" Uiis been upon tliis tisj.le ; says he, i :
iiav<' hiTM lKli,:\fd h-.-retid'ore, the parliament.s !
hau- ci^ul me en-dit ; :i.id tn pi me it, lie has [
IMJlld K.'llT.ll i:>l))l.<!., / : -Mill ri. .- ...e ..4'/.ii-.Im.- >
Uhf.rr^ Treby, ^Ir: Williaiu
Dolben. Uut they all tell ;
to s:ive no particular answer
and thi^ was the sum of his c
To this .Mr. Atlonie\-Cie
n ply iif e\iilen<'e, that trul
moment. Kir>t, here is pi*
Wakeinan, wluini Oates ao
son. and he suHered his trial
n'j til at as well as the jury
him in the fnrnit-r venhets
tiiriiey, 1 must siK-ak likewi
thai \t'rdirt that did diMtc
thouifh he did swear as nini
to the matter as he had don
he had nut the hurry anil <
eovrry to siip|>ort him, lii
te<*t(d, and the innocent u<
sidts the record of the ;i«
person himself, who is now
danfrer, havin£2f stood his li
quitted ; and he takes it up
tiie |iivs<'Uceof the uieutCit
of hearts, that whatsi»e%(.T i\
him at his trial, was e%ery ti
this acquittal of his, being- a
ture consideration, is an ev
"uise quality, Uiantb^vei
con\ iclions.
Next to him, is my lord
son of W'cy fri*eat honour ;
account he was arraignetl
this bar, and upon his trial 1
as a witness agfainst him,
he uut with my lord Cautlei
Inn- Fields, and cjeat fainil
tween them, an that my h
liMti in <i !»*«.« fifT.iir ihart t\n
STATE TRIALS, 1 Jam£8 II. i6S5.^/or Perjury. [1226
j^reyoa ao account, as in the presence
ity God, that Gates has twice ibr-
Qself against them.
men, tiiere-is notice to be taken of the
f the Uoutse of Lords; and thou^rh it
r the sake of the precedent, and to
e justice of the nation, we did ket>|)
L'tly to their proof, that it was npuii
lid as to tlie business of Smith, though
lieve the thin*^ in our private jud^-
et wc thougiit it not fit to be per-
lat persons should upon their own
fess themselves to be guilty of per-
i atterwartls give eviilence against
ur such are not to have the counte*
;ver being witnesses again : yet by the
r parliament, and other evidence there
I to make the matter aimed at clear,
is clear by his Narrative, that Gates
wear, as tar as he could well swear
him into displeasure of the people:
ras his way to intiiuidute all Le iiad
1, and thereby force them to comply
designs. Ajid tliere was no more
accusation attliat time, than to accuse
* saying somewhat against the par-
»r being in a combination tosulnert
«tant Religion. But you see, when
to have his own turn served, then this
1 whom he had fixed such an oilious
, is really no papist at all, but engaged
for his king and country, and has
i's pass|»ort, a thing of |preat advan-
im at that season. This the king's
ladc use of witli great reason, as an
of tampering: for the man basal-
opinion of one he has before accused
brings him as an honest man to give
for him. And this, say they, must be
to be done by practice and by threats.
e rather, gentlemen, for that you have
3t by witnesses sworn, that there was
a popish priest, that lay in prison at
House, and while he was there. Gates
' illiam Waller came into the prison to
tampering with him, says Gates, i bear
8«>nie St. Gmers boys, that intend to
It I was at St. Gmers when 1 say i
indon ; but you must swear, that vou
h meat Mr. Ilowanrsin May 1678;
will not, you know i know you to be
ind I'll hang you. Says Clay, where
ver and gold that was taken a way
r And we all know sir William Waller
lerful good at the fingering of gold ;
to takie away broad pieces as popish
because of the crosses upon them,
f, give roe my gold a;^ain, I will swear
I bavo been a nigue bafoi-e, and 1
\ rogue again. And accordingly a
it made for him to swuar directly,
•ttnd be were Uigether at Mr. H(*w-
M 10 May 1678. This very fellow
fOB now the siory, ttdd it'the next
Jfc'-MiothiBi man, who has likewise^
■^- llieD is Clay conveyed by
MMsifeji and there swears,
being thus threatened and suborned, that in
May 1678, he and Mr. Gates dined toeether at
31r. Howard's house, and you have Mr. How-
ard produced, who does swear that Clay did
swear %o ; but indeed he was not there with Mr«
Gates at dinner tillJuly alter.
This, gentlemen, is (iirectcjrruption and sub-
ornution ; aud if a man will be a corrupt knavcy
and enilea^our to suborn wituesses to swear
thai which is false, he is the more likely to
swear fulse himself. Ik'sides that, you are to
take notice, here is his of\n Narrative pro-
duced, where you have it sworn by himself^
that he went back to St. Gmers about the be*
ginning of May, and %ias there all the month
of May, and. iu June, till the latter end of it.
Theu all tliis \%hile, either Mr. Gates, or his
witnesses, arc iierjured in the case : He says,
he staid but three or ibur da^s in Jbngland
after the consult was o\er, and then went'
straight back again to St. Guicrs. Which
unist be tlie first week in Ma}; ; but if you
believe his two witnesses, lie dined with them
sevei'ul tinies after that : And so it is apbareot
some of them are guilty of gi-oss and foul
Ijcrjury.
Now, gentlemen, I cannot but resort back to
tlic objection that 1 made at first. It is strange to
me, that a man that came upon such a design,
should go publicly about the streets at noon-
day, though in a disguise, >et he was known.
But if you take the persous time to be in the
year 1677, then it is easily reconciled what they
did say of their seeing him in such a disguise ;
and so all their testimony may stand together,
and |>erhaps they may mistake in a point of
time, thuugh nut in the sulistance of their evi-
dence : and 1 would out of charity conclude it
to be s<».
Rut 1 will say, if they arc to betaken strictly
to the year 1678, it is monsirous to imagine, that
we shoultl have nobody bniught to let us knovr
where he ItKlgod, Hheie he eat, with whom be
conversed, fur all that time.
Gentlemen, 1 have detained you the longer
in this matter, because I take it to be of so
great weight, wherein the justice and honour
of the nation are so much euga^red, and it was
therefonr fit this Cause slioutd lie tried in the
most solemn and public manner, in order to
vindicate the nation f: nm the reproach and ca«
lumny of injustice and oppre»sion. And sure I
am, if yuu think these witnesses swear true, as
i cannot SL-e any colour of objection, there does
not remain the* least doubt, but that Gates is
the bliick«*st and intwt ptrjuaxl villain that ever
appeared u|)on the face ot the earth.
C7. of'Cr, Tipstaff, you must take care of the
jury.
L. C. J. Gentlemen, if any of yon have a
mind to drink at the bar, before you go, yon
shall have suiue got for you.
Juri/. No, my lord, we do not care* foe
drinking.
L,C.J. Theik¥r%iiilVt^^^^«Q^
1S27]
STATE TRIALS, 1 James H. iS^S.-^TrialofTltuMOMUs^
[I9R
Then the Jury withdrew to coasider of their
Verdict, and after about a quarter of an hour^s
•tay, they returned and deliYered their Ver-
dict, < That the Defendant was Guilty of the
^ F^nry whereof he was indictctl.' Which
being recorded, the Lord Chief Justice s[K>ke
to the Jury to .this effect :
X. C. J. <Sent1emcn, that we are not, God
be thanked, in tliose times of disorder and con-
fusion that we have been heretofore in, to have
humming^ or hissings to declare the auditors
Approbation or dislike of Juries' Verdicts : But
because there has been this day mention made
, of the opinions of judges about rerdicts, I shiril
take the liberty to declare my mind to you
BOW, That for my part, 1 am satisfied in uiy
conscience you have given a good and a just
▼erdict; and so I believe is every other judge
upon the bench.
To which the rest of the Jndges assented ;
and then the Court arose.*
1083. There have been endeavours Irjr
some persons to accuse Mr. Oates of sedony;
and ui order thereto, two persons (one of wfai&
was ibrmerly his roan, bat tamed away for hiv
rogue's tricks) applied themselves to an alder-
man of the dty^ who ordered them to g» to Mr.
Recorder, who accordingly took their ennni-
tion, which was so very improbable (nay etc»
incredible) that it discovered the talseaea mk
maliciousness of the prosecution.
" June 1684. It has been ver^ ktdj do-
coursed about town, that there are infw iiiili—
taking by Mr. Justice 43«use, and Mr. JosIibi
L'Etitrange of High Treason against Mr. Oiti^
and that he would be indidedihereoD the BOt
" Jan. es, 1684^. Mr. TUaa Oatea pkiM
not guilty to an information for Pojonr shosta
consult of Jesuits he swore to be at the Wlili
Horse Tavern in theSttmnd ; and theiewaswy
hot words passed between Ihe Lord Ghitf
Justice and him." Narcisms LuttidPi
M8. Brief Historical Reiatioo» &a in Al-
souls' Library, Oxfosd.
523. The Second Trial of Titus Gates, D. D. at the King^s-Bcncl^
for Perjury : 1 James II. a. p. 1685.
Jl%9, 1685.
This day being appo'mted for the Trial of the
other causes between our sorereign lord the
king, and Titus Oates, for Peijury ; the same
be^sD altout nine in the morning, and proceeded
afiet- this manner :
Fust, proclamation was made for silence:
Then the Defendant was called ; who, appear-
ing in pei'son, was advised to look to his chal-
lenges: but he challenged none ; only he de-
air^, that they might be all asked, Whether
they were of the grand jury that found the
bill? * which was done. And all denying it,
the twelve sworn were these: Sir Thomas
Vernon, kt. f Nicholas CMiarlton, esq. Thomas
Langham, esq. Thomns IlaHop, Francis Grif-
fith, John Kent, George Toriano, Henry
Loades, John Midgley, Jobfe Felling, Thomas
Short, and George Peck.
CI. of Cr. Gentlemen, you that are sworn,
hearken to the Record.
Memorandum^ * That by a certain inquisition
< for our sovereign lord the king, at the Guild-
< hall of the ciiy of London, and within the
* same city, on Tuesday the 28th of October, in
* the d6th year of the reign of our late sove-
< reign lord Charles 2, by the grace of Crod, of
* England, Scotland, France, and Ireland,
'king, defender of the faith, &c. before sir
■ Henry Tulse, knight, mayor of the city of
* See a Note to the next preceding Case,
p. 1081.
t See the Case of sir Samuel Bamardiston,
i.D. 168^ vol. 9| p. 1389, oCtbiftColtacidMk.
' London; sir William Tamer, I
' James Edwards, knight, aldenna of ^aii
'dty; air Thomas Jenner, knight, <im if !■
' majesty's serieants at law, andieeoite if tti
' same city ; sir Robert Jefferies, knight; ai
' sir John Peake, knight, other aldenncn of lbs
^ said city ; and others their companions, jn-
' tices of our said lord the king ; by hb ott-
' jesty 's letters-patents under the great seal 4
' England, to enquire of several onenoesiatbt
' said letters-patents contained, and to bcarinl
' determine the same, according to the lawsiad
' customs of this kingdom, by the oatbs of
' twelve jurors, honest and kumil men of tbf
' cit^ of London aforesaid, who then and that
' bemg sworn, and charged to enquire for sor
' said sovereign lord the king, and the body of
' the said City, upon their oaths present :
* That at a certain session oSf onr said bid
^ the king, holtlen for the oonnty of Middkses
' at Hicks's-Hall in St. Jobn-Street in die
' county aforesaid, on Monday (to wit) the 16lb
^ day of December, in the vear of ihereigaflf
* our said late sovereign lord, Charles 9, by die
' grace of God, of England, Scotlaiid, Fraan
^ and Ireland, king, ddender of the fidth, kit,
' the dOth, before sir Riginakl Foster, bannct;
' sir Philip Matthews, hart, air WilUam Bovriea,
' knight ; sir Charies PitfieU, knight ; Tbo*
' mas Robinson, Humphrey Wyrley, TbonM
' Harriot, and William Hempcon, esfoircs,
^ justices of our said lord thekmg ; to cnooiie
' by the oaths of honest and lawful men, of ihi
^ county of Middlesex aforesaid, and by otkr
' ways, manners, and means, wbaaby th^
! might, or oonld better know, as sm wito
Ubote la mthiiat i by wbooilbi Inrtbif *•
STATE TRIALS, Uambi^IK l685.— /<r F<f/wr^.
[wsau
tni^Ul lie bt'tler kiKiwn am) enquired
Dcnitwg iU) trv(k(ion« and misiintiions af
I, iiuruiTectionji^ rebeUioiH^ connier-
r cl«)Kniigf, washings^ fulie-inc^ng'y
itr l*ki*yii»fr ot* the tnooeys of thU
II of I i ' 1 : aod of aijy other king-
Mi <i ^rhatsoever ; and of all
I, Jtil^iiitL^, iiionsldughterii, killings,
loi, an4 other articlci* und offences in
|>.r«:,|k^t«rnt9 e)f our said lord the kmg,
&' ibur or more of them, there-
b i s|je€i6eJ ; as also the acces-
m tbtf fftUic^ within the county afore-
p well within hfcerties as without, hy
puerer^ howsoever had, made, done, or
jilted, and to hear and d^ermine the
preasoiis* and othf^r the premisses ac-
K lo the law and custom of this king-
Ci' r *iM<l, assigned hy the oath of
k Im Vaugbon, Richard Foster*
Ls rii|?et^ i(obert Newingtou, Henry
abSi mbert Uayes, John Greenwood,
P^'^^'T""'! ^'r^iau- -» Richard Rich-
A J, Joha King-, Nathaniel
\ .;4itr, Edward I*\ister» and
t ooest and lawful laeu of the
If 1, Jiworn, and charge*! to en-
pr our Slid lord the king, and the body
fcnuiiiy ufure$aid, upon their oaifis ; it
l^r That Thomas White, other-
), lale of the parish of 8t.
iht^ I'lehk, m the county of AJiddle-
VVilliaui Ireland, late of the parish
,, in the county aforesaid, clerk ; John
k^ Uite of the same parish and county ^
" ' ^'. late of the paiish
: >resaid, clerk; and
iiiM- tu UM- jjiurish aforesaid, in
aforesaid, gentleman ; as fkli»e
the [no8t iliusurious and most
llent prince, our said late
'Ch»rl«*s 5, by the grace of God,
lid, France and Ireland,
I ' faith, Sec. their fiuprerne
^ ; not having the tear of the
iL'orts, nor weighing the duty
aik i^iiiuce ; hut being moved and ne*
hy the instigation of the Devil, the cor-
e, and tnrc, due, and natural ohedi-
hicb true and faithful suhjeets of our
* awards him our said lord
al 1 of right ought to l»ear,
r ' it ring, and, wjlh
it race and com -
bj.p.iu.iiiiy iji ii,*3 wnij^iKjjLi of England
kirh ; and tlie true worship of iiod,
rjiid
■■' '■'■■•.■: ' ;:.l'; i ■! ^' ' • ' ! ._....JIJ to
Ktirup, and procure; and the cordial
and tnie and due obvMlicnce, which
rl subjectii of our aaid lord the
k)im the said lord the king
ill id of light otijjht U* War, utterly to
w, ^ut out, and extinguish I and our
msgn lord the king to death and final
W briof ttftd put, the 94th of
* Apiil, in the 30th yenr of the rcigo of
* aaid late soirereign lord Charles 2, at th
^ parish of 8t. Giles in the Fields aibrcsaid, i
^ the county of Middlesex aforesaid ; falselj
* maliciously, suhtilly, advisedlj", and traito
*■ ously, ditt purpose, com pass » imagine, ao
* intend seilitiou and rebellion within lliis king
* dora of England to move, stir up, and pr
* cure, and a miserable slaughter amongst lb
* subjects of our said sovereign lord ttie kin|p3
*■ to procure and cause ; and our said lord tb#
* king, from the r^ gal state, title, [jowcr, and
' government of his kingdom of England ,
* wholly to deprire, depose, cast down, and
*■ disinherit : and him our said lord the king, to
* death and final destruction to bring and put $
* and the governmeDt of the said kitigdom, and
* the sincere religion of God, in the sacoa
*• kinerdoni, rightly and by the laws of the same
*• kingdom established, nt their will and plea*
* sure to change and alter ; and the state of th it
*' whole kingdom of J'Inglaud, through all ita
* parts well instituted, and ordaiued, wholly to
* subvert suid destroy, and war against our said
*■ lord the king, witlun this kingdom of England
* to levy.
• And to complete and perfect the same their
^ most wicketl treason a, and traitorous imaginaiM
* lions and purposes aforesaid ; thev, the afore- .
*Baid Thomas White otherwise Whitebread,
* William Ireland, John Fen wick, Thomaa
* Pickering, and John Grove, and other falB«
* traitors, to the jurors unknown, the aforesaid
^ S4tli day of April, in the 30th year aforesaid*
' with force and arms, &c. at this parish of St.
*■ Giles in the FieldH aforesaid^ in the county of
* Middlesex, aforesaid, falsely, maliciously,
* sublilly, advisedly, deirilishly and traitovouslj
* did assemble themselves, unite, and congre*
^ gate *, and then and there falsly, maliciously,
* Kubiilly, advisedly, devilishly and traitorously
* itid consult and agree, our said sovereign low
* the king to death and final destruction to
* bring atui put, and the religion withiu this
* kingdom of Enghmd^ rightly and by the laws.
* of the same kingdom established, to the su-
* perstition of the Romish church to change
* and alter. And the sooner to complete and
* perfect the same their most wicked treasons
* and traitorous imaginations and purpoaes
^ atoreknid, the said Thonias White otherwise
* U hitehread, William Ireland, John Fen wick,
* Thomas Pickering, and John Grove, and
*' other false trailori of our said late lord the
* kintj", lo the jurors unknown j afterw artls (tu
* wit) the same 241 b day of April, in the auth
* year aftiresaid, at the Aforesaid parish of St.
* Gihis in the Fieldn, in the count v of Middle*
* sejc afbreauid. falhciy, subtilly, aifvisediy, ma*
* liciou»>)y,ilefirmhh. and ii-aitorously between
^ themaelves did concinde and agree that they
* the snid Thomas Pickering and John Grove,
* him our sanl lute lord the km^ should kill and
* murder ; and thst ihcv, the said TbomM
MVhite othciwike ^Vhitebread, Wilham Ir«*
* land, John Fenwiek, and other*^, faUe traitors,
* ta the jutort unktikQtFU^ % smv^i^ u>^i»^Mec ^
I
12311 STATE TRIALS, I James II.
let between lht?m llien ami tl)ere a^rei*'li
for llie lealih ol* the sotil of hiiu, tbe said
* Thomas Pickering, th*:rt?fbre should saVf ce-
* leWalts and perform j uml iherctbre sliould
* |>sy unto the amd John Grove a ct,Ttatn
^ fiuin ol' money t»etweeu theiu thco and ther^
""ftgreed.
* And the J uroi's aforesaid, upon their osthi
j^ftforrfaitl, (lid further present. That the said
Thonin« Fickeriti^ tind John Gror^'i upon
the «;rri*t'nieni utoresaid» then and UitrefrtlMi-
Hv, sulitiily^ nd^lsedly, mnUeiously, devi-
'^** hshly anil traitorously did tnke upon iherti ^
* telvofi, «n(1 li» the «anie Thomas White other-
whc U'hitehTvml, >V'illiam Ireland, John
Fenwick, unci other fiils;e traitors aguin^t our
' snid lord the kini^^to the jurors afort-said un-
known I then and there fulsely^ fiolitillv,
' advis^lly, inalici'tUKly, devihshly atui trtii«
' torousiy did pronuse, Ihat tliey llie said Tho-
* naas Pickenti;^ and John Grove him our .'=aid
late Ion! the kinjr wnnid kill and mtnder t
* And that they, the ^aid ThomiiK White ortior-
' iriic Whtttbfeud, VViHiain irdand. John Fen-
wick, Thoraaji Piekarin^, Jidvn (irove, nnd
^ other false ti-aitors at^Eiinst our said lord Uie
^ kin^ unknown, afiernavdK (to wit) the same
' 24lh day of April, in the 30th year atbivsanl^
^ at the afore^jaid parish of St. Giles in the
Fields it\ tbe county of Middlesex aforesaid,
falselv, suhtilly, adviseilly^ mahciouNly, de-
' vdUhly and traitorously did t^^e their talth
' each to other, and upon tbe saerninent then
andtheire tmilorouily did fiwmrand pronuv*?
lo conceiil, and m't to divnlije their siiid
most wicked treasons und traitorous com-
* pa^siniirs, consultations, and purposes so he-
* fween them had» him our said hitt? lord the
king- tiaitoroiisly to kill ainl rnutiler, arjrl the
Romish rdigiou" within this kingdom »f Koff-
land 10 be used^ to introduce, and the true re-
formed relig^ioD Hithinthiskin^^ilom of En|f-
> land, rig'htly and by the taws of the siid king^-
I doin estabhshedf to alter and chaojfe. And
t that the said Thomas Pickerinij and John
' Grove, in execjtion of the traitorous agree-
in put aforesaid, afterwards (to wji) the same
Mrh day of Apiil, in the 30th year aforesaid,
and divers days and times aftel\ at the afore-
?!» id parish ofSt. Giles in the Fields, in the
' county aforesaid, muskets, pislo^fi, '^wortls,
' dnifg^rs, and other otfcn'?ive and cruel wc;i-
^ pons, him the said bie hm\ the kth^ to kill
k and murder, falstdy, suhtilly. advi*edlv, lua^
» licioiisly, devilish Jy and Imltorously did pi^-
l^are and obluin, liiid, and ki-pt'for then*-
' selves; ami that they the staid Thomas Pick-
^ erin^ and John Grovtr, afterwards (to wit) the
^ aame *24th d^y of April, in the 30tli year
aforesnid, and divers ilays and lirues a(ter,
with ttirce and arms, Ace. at tliu parish ntbre-
' satrl, in the e(»unty of Middltsex afore "wtid,
' and molher places wiJhinihe county of Mid-
^ diesex Mtoresaid, falsely, flubtilly, advisedly,
' nmlicioualy, devilishly and traitorously did
* he in wait, and endeavour our said laic b>rd
^tht king trattoi^usly ta kill and munlvr ;
1605^75 w/ of TitUi Outtf,
and that the itnid Thomis Whht
Whiiebreud, Uill: * ' ' '
and other false t
said unknosi
S'lth day of
at the pan
MiihlleAex
%-fSl'lJk- 111 tin
pi
known, and subjects ut vr
kin^, hrm our saitl lat^ lo
tOfOMslv to kill nnd niM
cf ihei'f nllegianre, a j
said lord the king hi« i <
Ug^iinsi the fiJffM id' 111'
mm\i- ni '
far nro'
;^*ttoVdeltvriy oj
Newg-ale, at Jusii
in tl»e suburbs of
parish of St. Sip
rinjB^don wiriitmt, 1,
cember, inlln lu v '
justices of thi' sj (I t 1 I
l^aol delivery, fhtnfinii
ment, of the county of
came the said Wjlliam Irebttd* Tbtn
erin;^ and John Grove, undtr th«»
sir Richard How,kniy:ht» and 8ir .'
man, knit^hl, sheriff of the cou
dlr^exnlorrsuid ; into v.
ciOiie fliurrsaid, they ^^
IMtij; brOMi^hlto i! '
p« rsiMH, and prr^t
ouott^rnin^ th - i
them, how ' t\
the aforesiiid \\ ,-, u
erin;,' aud John ih i
they were not the ^ „
same, for good and bnd, th
put tlieniHctve^ upon t fie vjn
cerlain jury uf the eounlry\ ni
duly impauuetM, sworn and d ,
and there iti Uie same eourt, Iweforr
lioes of gaoUdelivery afoi^ei^nid, wr^l
And that upon tliut 'trial, f
lat«^ lord th*> kins', and the -
Jand, T:; i' '
l-,oin|nt,
in the (fm l#;il|i:.'\ auMTx.iicj^ . j;i i]
St Sepulrhre, in the Wan! «if
wtlhoue, (yindon t,r..r,.^..;.* .i..
(Tiu»^Oat*/s)latt *■
iiforcsjiid, in the u
f>r^w!ucir| 's n 'i^iinrss, •
ate lord the kirij. n*
and beforr iS
in the court
upon thi* Holy C
Bwoni to spetik
wludc trniU, i<Md
«f>d in th<r pr*»Uji*n
kiri'T, and the said nii mm iicii
Pickrrinjj and Jotm Grove. A
RHiil Tinr '* -' " — ' ^'
of gaol-
STATE TRIALS, 1 JAMStTI. iSiS.^for Ptijurif.
11991
tbe imiictment aforesaid ^ ot
wjutl ali)resaid, hy Ui^ own
< nt gf iim most wlckcH
tily fttd corruptly Hid
p^^uj, Miiti giire iti eTiiiriiee to
ih* jury »f<ir¥Htncl, iIumi and
<d iin|iJiniielW(lf tn try the issiif*
en tnw Jjjaiil late lord ibe kinvf^
if^rt^ve ; ihnl iUe ^id Wiltiam
iridictiiirnt aroi^esaitl men-
towo(within tbceitiesof L^iinJon
Biti9|^, nr th*^ plarfs a<ij<io«^t)t to l|iC
xin I lie 1st or i2il diy
»iIk:j i!rl67it* Whereas in
I in 9Jivcii thL &«id Willmii treluiid, in
Imdit ttfiwrciaiiiJ tnc'iiiiimdl, %vits not
UOr witliift tltr cilifs ot Loodoii aivd
k9iicf, or I lie places aJjaceut to ifie
Sm, -^-^ ^'^^^ • of thrra, upon the 1st
jV ol r^ in tlie ypur 167B.
b^ iiJ u. iitiv 0:iTi ,*dn' afore-
dav ot I "i» y<?fir
jStHcJu , 1(1 the
f upon the Inal atureSAMlf UfKin
it aforesiti^lf iMriwi'en onr late
I Vrug:, aod the aforei^aiil WUham
Tboiiins Pickering' and John Grovr,
reauid luul, by bis own n«i »nd con-
I iW bts most %v irked itiiud, falsely,
ily and cornipily, in iiiannir >»od
>rr«aid, did cominit V4»lutiiiir>' ami
perjury.
fc€ jurors aforr«ta in, last svvr^rn to en-
i...... . .;.M- r! •i"i "-. rnid the body
, upon llieir
\ i.ihatatano-
i.d thr kiofft hetd
c .. nt Hic'k^s-haU in
I }.trrct, in the county aforesaid, oti
[y (to wit) ttic l?th ihv i>f Junejti tlie
r f hftrles^^b<*-
, .sir Thomas
I :,sir W illuun Puhney»
• ivles, knii^ht* Thoiiius
i others
I ur Raid
1 to nuy four or more
* Stil of our said late
t% by the oath* of
uunty of Mhldle-
f and by all other i*av»*i manneni
^vhicb tliev might or eotJd
~iW wiihiii hbtrtics q» without
:Ii of tlir niulter mi^ht be
treaw»n«, ini«-
tiorm, rehellions,
hti money of
oihrr king-
u',-A ofal!
killings^
N, roeelitigiij ami unlawful cou-
akings d' wonln, enmbinttti<j<ifi,
lui^risjans, eontederaciefi, false allctgntionf,
trf9|ia«st*£t Hois^ routs, retainei-s, «scapes»
coiHtmpts, oppre«hioiis j ftod of oiber articles,
;hkI offenre!* in the same Ifrliers patents c^
o«r suid lord the kinjj, apecified : as also, this
acc<*saries of the same, within the county
afon*said, as well within hlierlies aj* without*
by \i huui^tuever and liowsoever had» done,
|iei' I »et rilled or committer) ; and of other ar-
tirh «i and circumstauces c«t»ccrniog' the pi«-
rnise::!, ho\\ jioe^et', and the same tix'asona
and uther the premises to bear and deter -
miae according to th<? lair and custom
of this kinjfdom of England being as»
sidled by the oaths of Henry Ashurst
cw(, Kriuard Grnvel, John iWford^ Jolm
Wan-el, William Hanmer, Robert Pritchard,
John Treddcr, (silhert Urewevn. David Col-
li vex, Abraham llarvisionf Cnaries Mors^an,
Plnlip Trehearti, John Collier, lltdiert
WhitetXMi, William Wehb, Thomas Edwanb
and AlM-Qh»m Tille/it, hune^t and lawful mea
in the county afoi^said, sworn ami charj^ed
to cuqnfre W our said loril the kiuj^, and the*
bofly of the county aforesaid ; upon tbcir
oaths, it Mas prtisented, Tliai Thoujas White,
late of the pari!»h of 8t. Ciles in the tiekK in
the county of Middlei»ex, clerk, utherwiste
called Thomas Wbilibrrt»d, lateot the pnrish
afijrcfiuuljn the county aforesaid^ ch'rk ; John
F4M\%ick, late of the j»aniih aforesaid, in the
comity afoi-esaidi clerk ; Wdliam Harcouit,
late of the jmrish aforesaid, in the county
aforesaid, clerk, others i^e called William
Harrison, late of the parish aforesaid, iu tite
county afuret^idf clerk; John (javon, lale 6i*
I he parish aforesaid, in the couiity atbresaid,
clerk ; and James Corker, late of the imrisH
aforesaid, in the county aforesaid, clerk ; as
feUe traitors agpiinst the most illustrious, most
tcrene and excellent prince, our late sof ereign
lord kin^ Charles 2, by the grace of God. of
EtiplaDfU Scotland, rrauceand Ireland, king,
delender of the faith, \'c, their sujyreme and
nnrtiral lonl j not having the fear of God in
ill* ir hearts, nor weigVung the duty of their
allei^rince ; but being tnot^ and setluced by
the iofch^ation of the devil, the cordial love,
the true, due, and uatnnd obeijic'nce, wbicU
rrru. nr>j fhithfifl subjects of our fsaid hntl tho
!shim <mr said lord the king should^
a nri -lit to Ivsir; vhoity with-
^ Tind with all their
, find Common trau-
((ijiliiiY of thiH kingdom of England to di>;*
tm li ] and the ln?r rv< rship of God %^ ithiit
this king^lotu r | used, and by law
e^Lcibti^hcTdj Ir* ^ ; nnd the goreni-
men! of this kini^duuj t-i ilu^rhnd to subvert,
undKciUtion BtidrcU'Uion within ihinkiitqiloiii
of Eni;*hnd toiti ' tnd
the cordial lufi ^.e,
which true anil i udhi mi Jurd
the king toward*^ him ilt< he king,
should, and of rij^ht - • \ utterly
to withdraw^ put out. and our
lat4i Urnlibit km*^ :. u.^*. _.,^ liuil dci*
4t '
1235J
STATE THIAIii, 1 James II. l6S5.~Dial of THut OtUet,
U true lion to brinjr, oud put^ tbu 24lli day of
P Aiiril, iu the 3«-HI» vear nf tlic ms^ ot our
I' sliiit late lord ktu^Ciiarles ^, Sec. ot the pa-
^ rish orSt. Giles ill ihe fields, and the county
* ol'iVliddlesex ^iforessaid* uilli divertkOtUvr false
^ triitliu's ajfainst our said lato lord the king", to
L* I he jnrorH uforcaaid unknown, falstdy, suh-
J« Lily, od I ibedly, maliciously and tntiierously
d d piir^Mjscs compns«, iinaj^'ine, and intend
hi' litMiti and rvbelhon v*ithlu thii. kinijdom of
Kn^^tumt to raove, *;tir U[», and [uocurt\ und a
L* riiisi4'nddt* slatiy:hteratin»n*^ the ^nhjecls of our
^ Kind li»rd ihV kiii^, lo provuro and rause; and
L* our said lateloid the kinu*, from the re^al
p* »l4U% title, pal* IT and ^ovcnimpnl of his kini,'-
M doiji oiVEn^IamU utterly to deprive, dtjtose,
r* caHt flown, and ili&inherit ; anu him our said
'• bte lord the kin*^ to death and final dcjitruo*'
L • lion to hvinjtr J^tiil put, and the ijovcrnroeot of
♦* the htkum kitii*doni, tind the sincere rLJig:ion
0* of God iu tiie same kingfdom, rightly and by
^» the laws of the said king-dum estabfishei^, at
1^* their uitt and pleasure to changre and ulrcr ^
.* and the state of this v^hole ktot^dom of En«T.
* land, lliroujrli all its piirls well instttulcd and
•ordered, witolly to nuh^ert and destroy;
/ and warag^ainsl our late lord the king", within
^* this kingdom of Eny^bnd tu Icf y : and to
. • perfect and complete the snine, tncir mo!;t
* wickeil treasons and trailerouF imaifma-
,*lioDR, and purjiosis, they the saiil Thomas
* While otherwise VV hitehinead, John renwirk,
* \}'klliam Harcourt othervrbe Ha^ison« John
I ,• Gaven, Anthony Turner, and Jauieti Corker,
p* and other fali»e traitors to the jurors aforesaid
I* * unknown, the aforesiaid '24tJi day of April, in
* the ^{Qth year aforciiaid, %^'itb force and arois
* aforesaid, at the parish of 8t. Giles in the
* fieldi* aforesaid, in the county of Middlesex
* aforesaid, fulsly, ma]icion&ly% subtilly, ad-
* \isedly, dcviliisfdyanil traitorous>!y did as^eni-
* hie, unite and gut her lhem>*lves tofjtiher ;
* tiieti and there falsly, mahciously, siibtiUy,
* atlvisedly, devilhyy,and traitorously did cou
* suit, consent and a^ree otir said late lord the
>* king to death and final destruction tQ brin|;'
« atid put, and the rehtrion within Ibis kin^-
* doiij of England, rightly and by tlie lawi* of
* the same kingdom e^^tablbhi^tt to changt; and
* alter, to the snperbtillon of the ehuich uf
* Home, and I he i;^o vert) men t of ibis kingdom
* ofEn^Iund losubtert'j and that one Thomas
* Pickering', and one John Grove, hiio our said
* late lord the kinj^^bhould kill and murder : and
* that tliey the said Thomas White othcrwitR'
* Whitehrtud John Feui*ick, William Har-
^.* court otherwise HarrisoD» John Gaveo,
* Anthony Turner, James Corker, ami other
* false traitors against our said latx* lord
* the king, to the juroi"S unknown, a cer-
* lain uuruber of Masses, between fhciti,
* then and there a^freed iii>ou, tor the hefdtb
' of the soul of hint, the said Thomas Fickerinjgr,
* therefore should say, celtbriite and (>erform ;
* and tljerefore xliould pay upjn the said John
* CSro^e^ a eertuiu sum of money, l»ch*een Ihem
* then and there agreed Ujion. Aud that the
* said Thomas White >
* John Een»ick, John i »
* Willjiiiu IlarL'ourl oti^rwM; I
* other false iraitot^ against onri
* the kiaif, to the jurors uaknowa,!
^ thi r pro5iecutio« of the trwsau* I
* consultations nnd at^reem
* lervi ard»* (to wit J the said
* in the liOth year aforesaidil
* parish of 8t. (•ilesin the (irkl&,i]
* M-
*0U...^, ,
* and upon tl'
* tornnsly du!
* not to Jivul^e tin
' and truitorouscui.
* purposes aforeKJiHi, hi»
* him the said late lord the I
* kill and murder, and to mil
* reii<»ion, to be used wilhii
* £nt;land,a[i "
^ of Eng:lanil
' kinjrdom eMirni:
* and ihrii the ttu
' Whilel»read, Jol... .
S conil othcrv> isG Han
* thuny Turner, James v
* traitnrs to tlie jun^r"* a I
* furth*TprOitc(-uiiimof I
* teroitij intentions and
« ai^terivards (to w it) the fair! ?t
» in the 30th year
^ said, in the cou r;
* advisedly, mali«:u»usly, dcvULsh
* ously, did prepare, perstuad^
* comlbrt and coun%el four <
* jurors uokuuwn, and &uhJ4
* lord the kiug^, him onr sail!
* traitorously to kill and ttiun^
* duty of their alb "^ "
* of our «iiid late .
' diyjnity, aiid ac^a: .-_ {4
I ^ iu that case made aod pr
' it \s as comtaandcd the sbi
*■ aforesaid, that he should noti
* should tftke thetn tn ans\rrr,
* \V hich indicti)
* lord the king, ',**■■ .
* delivery of our ^^^al Und \
* gate, hoi den by nt^uunm
* of Middlesex, at Justie
* Itadey in ilie suhurbv
* doQ, on Friday (to w it) til
' J«ne in the ilst year utmr^
* James Ed waiils, t" 1 -f •
* London ; sir V.
* chief justice of i
* beacb ; ^ir Fr:M
'justice of hh m
< Pleas: sir Thomas Aile
•'one of the aldermen oft
* don \ sir Geun^e Jeflerits,
* of the iiaid city of l^iudon ;
* compuiiottfi, iuoices of our »
^ twign»<l 10 deUrer his Gaol
* the piiMMMrs m the sasoc I
STATE TRIALS, 1 James II. l6»5.-/or Petjurg.
[1SS8
did deliver there, in tbe court of
irm of law to l>e determined :
)D, at the said gaoir delivery of
AQg of Newpate, holden by the
aforesaid, for the county
Justice -Hall aforesaid the said
3th of Juiu;, in the 31st year
fore the aforesaid justices of
e lord tlie king: lust named
aid Thomas White otherwise
John Feu wick, Wdliam Uar-
ise Harrison, John Gaven and
rner, under the custody of sir
% kiiitrht, and sir George Chan-
sheritf of the county aforesaia ;
iistody, for the cause aforesaid,
'fore that time committed ; be-
o the bar there, in their pi*oper
0 were committed to the afore-
:c. And inunediately being se-
iUded concerning the premises
lie indictment aforesaid specitied,
1 them as above, how they would
: themselves ; the said Thomas
wise Whitebread, John Fen wick,
court otherwise Harrison, John
Anthony Turner, did severally
y were not thereof guilty : and
r^^ood and bad, did sc\era1ly put
K)n tlie country. And thereupon,
ictment aforesaid last recited, at
f our lord the king, at the Jus-
he Old-Bailey, it was so far pro-
the issue aforesaid between our
the king and the said Thomas
^isc Whitebread, John Feu wick,
'court otherwise Harrison, John
4nthony Turner, afterwards (to
resaid Friday the ISth da^r of
3 1st year aforesaid, at Justice-
lid, by a certain jury of the
that behalf duly impannelled.
ai^ed, was tried ; and that upon
le issue aforesaid last mentioned,
iaid late lord the king, and the
; White otherwise tVhitel)rcad,
k, William Harcourt, otherwise
bn Gaven, and Anthony Turner,
ibresaid, (to wit) at the Justice-
Id- Bailey aforesaid, in the parish
dire, in the ward of Farringdon
Ion aforesaid, the said defendant,
was also'a witness produced on
said late lord the king, upon the
I, upon the indictment last afore-
), the aforesaid Titus Oates, then
the session last aforesaid, at the.
aforesaid, in the court uf the
(to wit) at the parish and wai*d
18 duly sworn upon the Holy
od to speak and testify the truth,
ith, and nothing but the truth of,
etaiises, iu the issue aforesaid last
>ai aforesaid joined between our
the king, and the said Thomas
rise Whitebread, John Fen wick,
court otherwise Harrison, John
Gaven, and Anthony Turner. And that the
said Titus Oates, then ami there, at the ses-
sion aforesaid last mentioned, in the Justice-
Hall aforesaid, in the court of the same ses-
sion upon his oath aforesaid, upon the indict-
ment last aforesaid, by his own i)roper act
and consent, of his most wicked mind, false-
ly, voluntarily and corruptly did say, depose^
swear, and give in evidence to the Jurors of
the Jury aforesaid last mentioned, so as afore-
said sworn and impanneired to try the issue
aforesaid between our said late lord the king,
and the said Thomas White otlierwise White-
bread, John Fenwick, William Harcourt
otherwise Harrison, John Gaven, and An-
thony Turner ; That William Ireland (one
William Ireland then before convicted and
executed for high-treason against our late
lord the king, meaning) took his leave of liiin
the said Titus Oates and others, at the cham-
ber of the said William Irekind, ^hen being
in Russcl- street (a certain street called Russel-
street, lying within the city of Westmin-
ster, in the county of Middlesex, meaning)
between the 8th and 13th day of August, in the
year of our Lord 1678.* Whereas, in truth
and in deed, the said William Ireland did
not take his leave of the said Titus Oates, or
any other persons whatsoever, at the cham-
ber of the said William Ireland, then being
in Russel -street aforesaid, between the said
8th and 13th days of August, in the year of
our Lord 1678. And so the said Titus Oates,
upon the said Friday the 13th day of June,
in the 31st year aforesaid, at the session last
aforesaid, at the Justice- Hall aforesaid, in
the court of the same session, upon the in-
dictment last aforesaid, so put in issue, and
tried as aforesaid, between our said late loi-d
the kinir, and the said Thomas White, other-
wise Whitebread, John Fenwick, William
Harcourt otherwise Harrison, John Gaven,
and Anthony Turner, by his own proper act
and consent, and of his most wicked mind,
falsely, voluntarily, and con*upt1y, in manner
and form aforesaid, did commit voluntary
and corrupt perjury, to the ^reat displeasure
of Almighty God, in manifest contempt of
the laws of this kingdom of England, to the
evil and pernicious example of all others in
the like case offending, and against the peace
of our sovereign lord the king, his crown and
dignity. Upon this indictment he has been
arraigned ; and thereunto hath pleaded. Not
Guilty : and for his trial, ^ath put himself
upon the country, and his majesty's Attorne}-*
General likewise ; which country you are ;
your chaise is, to enquire, whether the de-
fendant, lltus Oates, be guilty ofthepeijury
he stands indicted, or Not Guilty. If you
tind him Guilty you are to say so ; if you
find him Not Guilty, you are to say so, and
no more : and hear your evidence.*
L, C. J. (Sir George Jefferies.) Ijook ye,
3Ir. Attorney, my lord chief justice Jonim has
« See Tol. 7, p. 3S7, of this Collection.
the year of oar Lord 1678. And to tbi
Titus Oates did tfaeii and there oonah
and corrupt perjury. And this is lud to
the great displeasure of Almighty Ckid, ii
tempt of the laws of this land, to the cf
pernicious example of all others in the life
offending, and against the king's peace, <
and dig^ty. To thia he has pleaded
Guilty. If ive prove it, we do not qai
but you will find uim Guilty.
A(L Gen. May it please your lordshi]
yon gentlemen of tlie jury ; Mr. Oates i
imlictcd for having perjured himself: d
stances, gentlemen, that we charge him
are these : first, what be swore at the ti
Ireland ; and we say, that at that trial i
swear Ireland was in town the 1st or i
September, 1678. The second instui
what he swore at the trial of the Five Jcs
and there we say, he did swear, thst In
was iu town between the Ath and 12th tf
^ust, and that he took his leave of
in town at his chamber in Russel-r-
1239] STATE TRIALS, l Jambs II. l6S5.-Trirf rf liim Omia, [
sent to know, whether you have any thing to
do with hira to-day here ?
Att. Gen. (Sir Robert Sawyer.) Not at all,
that I know of.
X. C. J, Mr. Gates, do you intend to make
pse of my lord chief justice Jones, or any of the
judges of the Common- Pleas as witnesses ?
Oat€$. Yesterday, my lord, I did call for
them, to have made use of them as witnesses.
X. C. J. But have you any thing to say to
them to-day f
Oates. I cannot tell as yet.
X. C. J. Then ray Lord Chief Justice Jones
must be told, that he does not know, whether
he shall, or not. Go on, sir Samuel Aslry.
[Then Proclamation was made for informa-
tion, and Evidence was made in usual manner.]
Mr. Phippt. May it please your lordship,
and you, gentlemen of the jury, this is an in-
dictment against Titus Gates, clerk, for per-
jury : and this indictment sets forth, that Wil-
liam Ireland, Thomas Pickering, and John
Grove, in the 30lh year of the late kinjr, were
indicted of hijs^h-treason, and tried at the Gld-
Bailey ; and at that trial, the defendant, Titus
Gates, was protluced a witness for the king ;
and being swoni to tell the tn«th, the whole
truth, and nothing but the truth, did falsely,
voluntarily, ami corruptly, depose, and swear,
nnd give in evidence to the jury tliat did try
that cause, that the said William Ireland was in
town (within the cities of London and Westmin-
ster, or the places adjacent, meaning) upon
the first or second day of September, in the
secoiid yrar 167B. Whereas, in truth, the sai<l
William Irclaiid was not in town, nor within
the cities of lAindoH and Westminster, or the
places adjacent, upon thi* first or second day of
C«epteml>t'r, in the year 1673 ; and so the said
Titus Gates hath c<>mmittcd wilful antl corrupt
perjury. And the indictment further sets forth,
that upon the 13th day of June, in the 31st
year of the late kio:if, Gliomas White otherwise
Whitcbrrad, John Fenuick, Wiiham Uarcouit
otherwise Harrison, John Ga\cn, and Anthony
Turaer, were indicted an«l tried at the Old-
Bailey for t<ra8<m, and at that trial the said
Titus Oates was a witness produced on the part
of the king : Utid being sworn to testify the
tnith, thp whole truth, and nothing but the
ti-uth, by his own act and consent, of his own
most wicketl riiind, f ;lscly, voluntarily and cor-
ruptly did depose and swear, and j^i> e in evi-
dence to the jury, that William Ireland (one
WiUiam Ireland, before that time convicted
and e\c<'Ute<l for high-trcasou, nieanir.iir) Jiii
take his leave of hiui the said Titus Gates, at
histhesvid Wiiliaui Ireland's chamb<r, then
being in Kussel- street, iietween the (jlti and
12th day of August, in the year of our Lord
16? 8. Whereas, in truth, the said William
In-iand did not take his leave of bun the said
Titus Gates, tu' of any other persons what-
soever, at his the said William Ireland's cham-
ber^ then being in Kussel-street aforesaid, be-
tween the saiuSthaud I3th day of August, in
we do charge him by this indictment, tk
has forsworn himself in both inKtanrK :
that Irelaml, gentlemen, was neither in
between the 8th and 12th of August, dm
1st or 2Bd of September. And we shall i
it out very evidently : for, gentlemen, \
the proof in this case, our casfl stands thai
say, that the 3rd of August, 1678. In
went into Hertfordshire, to a house of ai
Astoo's, and from thence went into Sw
shire. I will not stand to open the partk
fvhere he was every day ; hot we shiB
you au account, in a method very easy 1
remembered and observed, %%herehe »i
the 14th (»f September. But one remar
iufttance, gentlemen, I desire to take parti
notice of ; and that is, the lime of Paucni
whi<?h is upon the i>nd of 8<»ptember alwi
known day, and a known place in thatcou
Now we haveauionof the rest, many vitr
to prove, that Mr. Ir* land was there that
and not in town. And uhen we have p
this, as we shall by a whole cloud of wiiw
1 bclifve, you gfutlemen of this jury,. «
mon^ doubt that Mr. Gatc-s is fors»«orD in
particulnt*s, than the jury yi-sterday did it
navtiL*uiur ; nor than, 1 't^elievc, lite \
LitiL^dom does by this time.
Sol. Gin. iMy lorrl, we shall go to oor
dence; r.nd fii-st, ue produce the Heror
the two Trills of Irelnml, and the five Je
JSwear 31r. Swift. [Which was done.] 1
Sir, put in the Uecoi-ds. .Are those true co
Mr. Siiift. My lord, I examined these Rt'
with the originals, and they are true ci>t"
Alt. Ocn. Mr. Gates will you have
read ? Gr, to sa% e the lime of the Court,
you agr«e them ?
Oales. My lord, I consent to save the
of the court ; if they shall be made usee
evidence for me.
L. C. J. No doubt they are evidence fii
as well as against you, when tlicy fi
duced here.
STATE TRIALS, 1 Jambs II. 1685.-^ Pttjwnf.
imi
en. If Mr. Oates does admit the Re-
ini thall we ^ oo, and proTe what be
r at thoae Tnab ; and forthe first part
le, which is between the 8th and lith
t, we desire that Mr. Thomas Harriot,
Uainyfonl Waterhouse may be sworn,
was done.]
rffi. Mr. Harriott pray, do you re-
at the trial of the FiTe Jesuits, was Mr.
Miuced and sirom as a witness ?
ot. Yes, ha was, mv lord,
rm. Do Tou rememoer what testimony
about Ireland's beingf iu town, and
iraa, be said, he was in town ?
ot. My lord, he did positively awear,
Ireland, the late Jesuit, did take his
him, the said Gates and others, at the
land's chamber in Russel-street, be-
f 8th and 12th of Autj^nst, 1678.
'en. Were you of the jury that tried
: Jesuits, Mr. Harriot ?
ot. Yes, I was foreman of that jury.
fen. What say you, Mr. Waterhouse .^
u present at that trial ?
*hauu. Yes, 1 was of the jury too.
ten. What did Gates swear at that
'kouK. He said, that Mr. Ireland took
! of him the 13tli of August. My lord
tiice Scrogc^ then asked him, Are you
^asthe 19m? And then he said, he
d: be iMwitive it was the 12tb, but be-
le 8th and 13th it was, I am positive
yoatb.
\}en. It is so in the print too ; but we
J. But will the defendant ask these
s any questions ?
. My lonl, if yonr lordship please, 1
Mr. Harriot a question.
/. Ay, do ask him what you will.
. Mr. Harriot, did I swear, that he
leave of me, or I took my leave of him ?
lot. You swore, that Ireland took his
you and others, between the 8tb and
Angnst, 1078 ; between those two
id in that vtiir.
TTi/Ami. Itis a nice question that of
Mr. Guteif, upon my w«i*d.
. My lord, 1 know what reason I have
hat question ; I am sure in perjury,
t oujj^bt to keep up the witnesses strictly
is hud iu the mdictmeut.
J. Well, you have his answer accord-
he indictment.
. Pray, myjord, be pleased to ask Mr.
this question, Whether be took notes
iair
iot. Yes, I did so. Sir.
. My lonl, I desire to know of Mr.
, Whether be has those notes by him?
iot. No, Hir, I have them not here ;
sve had them by me this four or five
ir more. It was my manner in all the
rfacmiD I was concerned as a jury-man,
dba triab strictly over, when they were
especially whero.1 happened to hare
any notes that I took at the trial, and to oofa-
rire the printed trial with nay notes ; and sihei^
found any thing* doubtful, I used to pat a
auery upon it. And this and many other
iiings, I found to be in the printed trial strictly
according to my notes.
OateM, My ford, I desire to know, what trial
he was foreman at ?
Harriot. That of the Five Jesuhs, in June;
the 13th of June, 1679.
L. C. J. Have you any thing to ask Mr.
Waterhouse?
Oatet. Yes, my lord. Pray, Sir, let me
askyou a question.
Waterhouse. Ay, if yon please. Sir.
Oaten. Did you take notes of that trial you
speak of. Sir ? — Waterhouse. No^ I did not.
Gates* How come you there to remember
^is, that I was so positive as te the time be-
twixt the 8th and 12th of August ?
Waterhouse. Because I was one of the jury ;
and because my Lord Chief Justice n»de a
Stoii, when you said, 'twas the 13th of Aus^sty
ane bad yon consider: and vou consider'd^
and consider'd it ; and did a&rm positirely,
that it was between the 8th and 12th of Angust.
L. C. J. He gives you a plain reason for hie
remembrance.
Dates, My lord, I have dene witli him.
"BoL Gen. Then we desire Mr. Fb»ter may
be sworn. [Which Was done.] Mr. Foster,
pray will you tell what you remember Mr,
Gates swore at Mr. Irehmd's trial, about Ire-
land's being in town ?
Foster. I was one of the jury at the trial of
Mr. Ireland, Mr. Pickering, and Mr. Grove ;
and I did see Mr. Gates sworn, as a witness lor
the kin^, at that trial ; and so was Mr. Bedloe :
and Bedloe there gave evidence, tliat there was
a meeting at Harcoort's chamber; and Ireland,
Grove, and IHckering were there: and that,
this was the latter end of August. Mr. Ire-
land did make his defence, as much as he could,
to prove, that he was not in town from the be-
ginning of August to tlie middle of September ;
and brought divers witnesses. But 'u[»on his
denying to be here the, latter end of August,
i\lr. Oat^ did come and swear : ^ I am certain,'
says he, *that th3 1st and 2nd of September
* he was in town ; for then 1 had of htm 90«.'
Gates, Was I positive, that he was here in
town the 1st or 2nd of September?
Foster. Vou were positive, Sir, to the 1st or
2od ; T hare it in my notes in ivriting.
L. C. J. He tells you, it is in his notes :
and therefore he*s sure you said so.
Att. Gen, In the printed copy, if it berigtit,
there is mention mane of the word * positive.'
L. C. J, I think, that is in August, between
the 8th or 19th, he was positive.
Gates. Did I say these words, < 1 was posi-
Mive?'
Waterhouse. I say, yeu affirmed that he
was in town the 1st or 2nd of September.
L, C,J, It is not necessary, that you slumld
use the word * positive :' the nuestioa ia, Whe-
ther it was poaitifdy affinnear
1843} STATE TRIALS, l James IL i6S5,— TrW o/ ItiuM Oaie$, pSi»
I
JusL Withim^ Was not that true that you
MaJ ? Dui D«it you Attirm a positive truth?
O&Ui. IVl V fortl, I'll tell you the ifason why
1 As>k the qu*»li«ii, becaiis^i I have foi^ot my-
self, whether I useJ the word or uo ; and iheri^-
fore I ask for my own iuforiiifltitio now.
L. C. J. Well, ask for what r«;a«un you
win, you bnic received an answer to your
^ue«Uori ; and ufK>ii my won! be ^ives a tittt-
able evidence : 8iLy£ he, Bedloe had sworn a
treasonable |irACtii*e by Ireland, in the lutter
end of .Aitg^imt. Thuri Ireland comes, and
IKiake his <leit nee i Says he, * Tliat cannot lie ;
• for r wa«« out of town at tbut lime • I was not
* in r ,1 .Inii nil Aag^ust, nor the beg^iatiinET *d'
*N * Then f'lnie you in to 8U[»port
tbt |i,y of jiedloe, and swear, that he
was in town the IsX or Snd of September ; for
then he gave you ^Of* And so you come to
ri\et the matter that was sworn l>efore by
Bedloe.
Quits. Mv lord, what I swoi*© was truth.
X. C. J* That b now to be tried.
Ati* Octu We hftve another of the jury
here, Mr. John ByJield: Pray, swear him.
[Whirli was done.1
Sol, Gen. Well, Sir, what did yoti hear
Oates jiwt'ar at that trial ?
Bi^efd. I heard the same that tliey have
testified before.
L, C' J^ But you must tell us what that
was.
Sol. Gfn, Were you a jurv^-man at that
trial ?
B^/itld* Yes, I had a summons to the Old
Briiley
L.CJ. But what did Gates swear ? That's
the question.
BtjfirU, Mr. Dates did positively assert, that
Ireland was here in town the 1st or 2m\ of
September ; and to coutirm it, he said, he re-
reivfd of Uim 20s.
An. Gen. Now, my lord, we sliaJl go to
our ovidcnee to prove, that all thj!< is absolutely
tklse : for Ireliind went out of town into Staf-
fort!shire» and did not re I urn till after I 1m? <>ih
of September. And for iJi is, we call Ann Ire-
land [Who was sworn,]
StL Grn. Mrs. IrelauiL pray where did you
tiikt' 3 our leave of your lirother, Mr. Ireland,
who was executed in summer 167B, and when.?
ftlrs. A. Ireland. I took my leave of him
the b(^;i^innin*f of August.
S<>L GcH What diiy in Au^rust, do you re-
mcrnher ?
A Ireland, The 3rd of Augimt.
Sol. Gtin. Where wa^ it?
A. Ireland. In my own lodg-intf ?
[J.. C. J. Where was your lotl^itig^ ?
A. Ireland. In Ruis&el-kreet^ Coveht- garden.
L. C. /. Now tell tis Bg;atu the time when
it wa.^ ?
A. Ireland, It ^\ as on SatunJay morning", as
I remember, the '^inX of August, the Saturday
afkcr St. Ijjnatins^s day,
X, C. f. IJow come you lo remembef so
particularly, that it s\us ilien ? |
A. Ireland, Because upon St, Ipalacs't
day, we were invited to Mr. Gi^ord\ at Hmh
mersmith ; my brother^ my motber* aiui l»«at
invited to stay alt night : but iny brotlivr fc>
fuseil to f«tay, bec^msc —
L. C. J. Which brother f What wis Im
name? — A. Inland, ^Vitltam Jrvlaiid.
L, C* J. I>id tht-y at^y iUensf
A. Ireland, No, my lord, niy bfolilicr^a»
home on foot, but we staid all Qic^bt,
AtL Gen. Here is an almatiaci^ of ilut yor*
and the :id of August was on a ^ttturdty.
A. Irelaud. He ^ald he could notiitajF.W«
cause lie was to ^o into the country upou %»
turday. 1 asked him, '^ \N liy he %%yuiil jet
out on Sntunkiy?' And sa\ s he, *^ 1*11 ^h
Stand en, there I »hall mQvi with my lord .tstn,
and his family ; and have an tipptirtuoity to p
with him into StalTordshire/
X. C X She says, he went out of towtoa
Saturday after St. Ignatius 's day ; >«hklif«
Saturday the 3 J of August^ but \here kmng i
discourse between her and her hmthtr, wH? U
should make choice of a Satur V
thought, It seenis^ was an int
txika a journey «>n ; and u[ -
made answer ajfnin, Thii
only go to Standen, to tu\ .,,,, .^.^r,
wli^re he should meet with ^c^ofDpoojTJ
alon^ with him into 8t.afrord:>liire. ^
AtL Gen. What day of the week itm!
I^natius's day ?
A. Ircknd, St Igoatius's da j was oo W|i
uesday.
L. C. J. Whotday of the inootli is St. J
ttus^s day ?
A. Ireland. It is either the lost day oTJttfyj
or the li^t of August.
L, V.J. Look on your a]( ' f\
have anv one of that year, M i
AtL Ocn. We have no such -^aiLit m aurilvl
manack.
A. Ireland. It was, us near as 1 da 1
niember, the dd of August, that he went vtL
loivn.
Sol. Grjt. The 3dof August, aiihat time,!
on a Satnrday.
I.^rd Prtrr, St. Ig:natius^s day isiJways^
last day id' July, my lord.
Alt, Gtn, In tliis alman^ick^ ar;
hasjustkHlhim out -, and that in \hsU
X. C J. And in my almanr^ . 'mil
jnstled them both out : but tny **P»|
it is always the last of July ; aiirt tU;^t vrasmi
W^ediie<»day that year.
A. Inlafid, i*rememb<*r tt was on aWed*
nesilay,
I. C, J. And you are stire be wcbI ^ d
town tfie Saiurduy idter ?
A* Ireland. Yes, 1 am 8ure be^ wt^nt «Qi ^f
town then ; f*ir I a^ked h>m, why he wot'
on a Saturday? And he told me be wool .
but to Stanilen tliat ni^ht.
SoL Cen. And ihut does hold, according (tf
the computiitiou, to be the 3d of August.
QaiH. 51y lord* she Is tioi positive to ibii*
that he weot'oatof luwn the ^dufAttguit
STATE TRIALS, 1 JamM II. ifiss — /or Fnyttty.
[It4«
Oen. Yes, but ^he is ; for she says,
she WHS the Wednes/iiiy before (which
St. Igiiatius's day) with liim a Utile way
of town,
C, J, And that it vrns Saturttay after he
it uf town ; and she efives the rf-ason^ that
«nterpd ipto a discourse with hitn, why
Iwould ^o oil Saturday ; And he made ihat
er whieh you hear.
\ixsu WUhins. Mr. Oates knows what day
^lgtiatius*$ diiy h upon, 1 presume.
I^^tf, h is the last day of July t I think.
)L Gen. !n our Prtileslant Almauacks, tt
lis, we give another hisliop place.
ti* GcH, Mrs. irelaiid, when did you see
affaiii ?
IreUntf. Jtisl a fortnight before Michnel-
and not bethre.
L C. J. You were his near relation^ 1 sup-
IreUnd. Ycs^ my lord, I was his niHtcr.
C J. Provi when he came to town again,
re did helodije?
Ireland. lie used to lodg^e at the same
I where we did always ; and in the mean
, while he was absent, my mother lent one
£fi^le«toti his lodg^in;^,
X. C X Is thai perH4m, you lent his chamber
ill hi» absence, here ?
Irtlanti. No, my loriL
C. X When did'sbccDter upon hia lodg*
Irtland. Truly, my hrd^ I cannot tell ;
f maid fell sick, and so she came down a pair
Itairs Kiwer into liis lod^in^. It was in a
X time after he went out of town, my lord,
pi reraemher,
f C» J, When did be come to town again ^
you say ?
Ireland. He came to town sg'ain a fort-
kht betbre 31ichaelmas ; it wn^ that day foit-
|ht betitre Michaelmas, that Michaelmaif-
fell on--
C. J. flare you any questions to ask her,
.Oale*?
%i€t. My b>i*d, I desire to know, why ahe
1 not tfivc this evidence before i" Or whether
she did give this evidence at any of the
I, Ireland, Yes, I was at mv brolher*a
\ ; and there I g^ve the same eridence,
Joiei. Were you there at the trial of the
i JesuiiAF And did you give the same evi-
nce tbt-ii ?
1 1 eland. No, I was not culled.
I. C* J, But were you tlicrt: ?
Irdand. I was in the court at the same
pe^ but was not examined.
uten. What year is it you speak of, thai
I went out of town the 3d of August ?
Irtlnnd. The year 1 678.
jQtt4* I desire, my lord, to ask this geutte-
nan, what reUpoo fihe is of?
IrtUnd, I am a llonian Catholic, ray
wOfttet. f desire to know, ^etber htc name
^ Ireland or Iroumonger?
A, Ireland. My right name is Ironmonger;
but becaupe of fiis pn>fe5sion, he wpiU by th«
name of Irelaud; and for his »ake we go by
that name too,
OuUi. By what name did you give avideii«it
at IreluodVVialf
A, Ireland. By that name of Ireland.
L, €, J. Why, Mr. ilales, that is a good
name enough to be called by ; you may re-
member, you were called Titus Ambrosius, au^
Samp^oti Lucy, at Si. Omers.
Au, Gtn. Swear Mrs. Eleanor Ireland.
[Which was 4&ne.]
Alt. GcH, Wbeu did your son go out of
town?
Mrs. El, Ireland, The Sd of August.
SoL Gen, Are you sure it was the 3d of '
Auq[U!it ? — El Ireltind, Yes, I am sure it was.
^L Gen. What year was itf
EL Ireland, My 'memory is not good enougli
fur that i 1 cannot tell what year, my daughter
can.
SoL Gen, Was it the same year he was tried
afterwards ?
El, IrrUmd, Yes, it was the same summer;
at Michaehiias after he was taken np.
Sot. Gen, What time did he return again out
of the country ?
El. Ireland, The 14lh of September after.
Outct, My lord, I would ask her, whether or <
no she £fave this evidence at her son^s trial f
EL Ireland, Yes, I was a witness there ; bnt
they would not permit me to speak half s«
much i they would hardly let me speak at all,
ihtfts. I ilestre to know, whether she was an.
eviilence at the five Jesuits trials ?
EL Ireland No, I was not there then »
Att, Gen, Pray svvcar Mrs. Duddlc, and
Mrs. Quino. [>V||i€h was done.}
SqL Ocn, Come, Mm, Dudille, do you re-
member when Mr. Ireland went out of town Im
thovciir16T8?
IVfrs. Duddk. To the bi?st of my rernem*-
brance it was the 3d of August.
SoL Ocn, W^hy do you think it was the 3d of I
August ?
Duddle. He went for a recreation out of 1
town three days before, which was ujK»n an
holiday, 8t. lgnatiu*i's day ; and he went out <
of town one night then, and he C4ime and staid i
hut two nights after ; and went out of towq ,
upoii lilt' ?>ai!ird!iy,
L, V. J, Did lie stay out of town one Tiight?
Duddle, Yes, he staid out of town all night.
L. C. X Are ytiu sure he staid there all
night? »
Dvddle. I am sure he staid but one liiglit.
L. C. J. But what say you to that, Mr.
Altoniey P this witness contradicts the other?
JuM. Wit hint. Ay^ plainly.
Duddle, Mrs. Ireland, and Mrs. Anne Ire* ^
land, and he went out upon a recreation out (
town, it being hoH<hy ; and I rem«»fTiber well^a
that%iraiof « \A ' - urdayj
hewenta**av> i f*>rt-
Qlght before IMk ii iflmrm,
L, C. J. But mmd mv
HQMi.
IS47] STATE TRIALS, l Jahbs H. l685.-^TrUff Tttas <Mef, [KNS
Duddle. Yes, my lord.
L, C. J. DU\ lie come home tluijt night he
went on the recreation ?
Duddle, I do not know.
X. C J. But jutit now, yon swore he staid
out all night. — Duddle. No, my lord.
L^C.f. Yes, but von did though ; prithee
mind what thou art about.
Duddle. I do not say he, but I am sore his
lister and the company staid out that night. I
remember very well, he went the tlurd day
after, which was Saturday. And Mr. Jennison
cam% to ask him for three weeks after ; and
there was a person of quality with him in the
€»ach, I think it was sir Miles Wharton. And
he asking fbr him, tliey save him an account,
that they had not heard from him since he
went ; which vnia then three vfeekA after he
was gone. A jd I remember well, be did not
come to town again till a fortnight before Mi-
chaelmas.
L.C.J. How can you tell that?
DuddU. My lord, I can tell it very well :
€k ] was almost every night in the room
where he used to lie ; and th^re lay a gentle-
woman there that I knew.
jL C. J. What was her name ?
Duddle, Mrs. Eagleston.
L. C. /. How came she to Ke there ?
Duddle. Her maid fell fiick, and she changed
her own chamber, and lay there ail the time be
waf out of to«vn.
Oatet, My loi'd, is this good evidence ?
L. C. J. Ay, why not ?
Omtes, My lord, f think she contradicts the
other witness : for she says he lay out two
niglits.
L. C J. No, there you are mistaken too.
But I tell you what 1 did observe before. Mrs.
Anne Ireland swore, that tbey did stay ail
night ; but Mr. irelaod refused to stay tliere,
but would go home, because he was to go his
jouniey on Saturday. Tben this woman comes,
and sli'c said at first, that be went out of town
on the Wednesday, and staid out all night, and
lay at home but two nights, and tlien went
a\^ay But now, when 1 put her in mind to
take* care what she Miid,slic swears, she is sure
the sister lay ovit, but she is not sure of Ire
land's lying out : but she is positive be went
away on Saturday the 3d of August, and re-
turne<l not till a furtnii^ht U'fore Michaelmas.
Outts. >I\ lord, 1 humbly conceive, she
having oncesworu false —
L. C. J, Ay, but she iaime<Hately recollected
herself.
Outei. By ^bat token does sbe remember
it to be the 3d of August ?
JL C. J. Slie said licfon\ it was the Saturday
after St. I«ruatius'8 day, whirh was on a Wed"-
nesday, the h»t day of July ; and he went then
out ef town. Siie called il by the name of
Recreation.
Oatet. Was ii the Saturday after St Igua-
tios's day ?
Duddle. Yes, it was : and 1 had not
4er«d ity biU that it was upon that holiday,
3
thu$. ThiiisaBoiiiuiCatholiCylauppQBe,
my lord.
L. C. J^ I cannot t^ What religisDsrs
yon of?
Duddle. lam a Roman Catholic, my M.
Mr. Jenison knows what I say to be tme.
Oates. Were you a witoeaa in any ef ths
trials at the Old-Bailey ?
Duddle. 1 was in 'the court, but was Ml
called.
Sol. Gen. Wliat say you, Mrs. Qiaimf
when did Mr. Ireland go out cH" town ?
Mrs. Quino. I must say the same; itwai
the 3d dav of August, oo a Satarday.
L. Cf J. How do you know that it was so t
Saturday the 3d of August ?
Quino. By the same reason that sbe spcsb^
I marked that other day he went out of tovis
and he came again, and his mother staid ibot
that night : and he went oo Saturday uiwwf
out of town. I know it very w«4i ; 6r ay
husband was his taylor, and he had sooMrtil
to alter in his clothes ; and I brought it iaa^
diately after it was done.
JL C. /. Are you sure he went out af isn
tliat day P
Quino. He went out of the hooae, and ail
take it, went out oif town.
L. C. J. Did he say be was to go wt «f
town ?
Quimo. Uehad his boots oo; and took bom
at the BulMnnin Drary-Lane.
L.C. J. How do you know it f
Quino. Because bis servant that was fkat
has testified it.
Att. Gen. Now swear my lord AMs.
[Which was done.] We will bring IreW
now upon the 3rd of August at nigbt, to ni;
lord Aslon's house at Staoden.
Sol. Gen. l^y will your lordship gire nv
lord and the jury an account, when iilr. irfr
land came to your bouse, aud how far he tn«
veiled with you afterward ?
Lord Asian. My lord, beiu«f iu town, I vii
spoke to, and desired that Mr. Irebind niukt
have tlie opportunity of going in my ciMupUT
down into Statfurdshire ; nbicli 1 coawutti
to. J went out of town, as I -i enieuiber. tiif
latter end of July 167U, aud this ^itut Mr.
Ireland came U^ me at my house iu Htrtfurd*
shn*e, at Standcu, upou the 3rd of .iugiut, *t
night.
L. C. J. What day of the week was thii,
my lord ?
Lord Aston. As I remember, it was Satur-
day, and in tlie evening.
L. C. J. How long did be ^tay with voir
lonlship ?
Lord AtUm. My lord, I staid till MoodayH
Stand en ; an«l upon Monday he went iniu nf
coiiipan} to St. Albans, which was the ptb >
August.
Aft.Gn. Wbitlierthendidyougo^mrla'df
lAtniA^fon. There I met \iuh luy imS^
and sister Siuthcoat.
L. C. J. ISir John Southcoat you aaM. bJ
lord.
STATE TRIALS, 1 James II. i685.--/of Pajury^
nsso
dtton. Y«, my' ionl. AmA thcDoe^ in
s we ivent to my house at Tixliall.
J. Did Mr. Ireland tr»\'el ivith }*ou all
f
iston. I cannot charge my memory,
t that he did, so as particniarly to
: but there he came into my company
es at Tixhaii ; but I cannot tell the
r days : nor could I sneak positively
thin|;rs that I have spoke to now, but
td in my Note-book, that at that time
srae to my iiouse at Standen, and did
me to 8l Albans.
Sen. Pray, my lord, did he go that
to Tixhall along with you f
Asion, I cannot eay positively that,
rney ; but I have a general notion
lid. Nor. conld I testify thw so poai-
■ay, but by notea that 1 have of
. that time : where I have only writ
se things concerning Air. Ireland, and
ame tl^ Srd of Angunt to my house
?n : that on Monday we went together
lans; nml there met us sir John Huutli-
my Kikter his wife ; and thence 1 went
Jl ; and there I arrived the 8th of Au-
ich was Thursday.
L My lord, I ask you this question;
you have a general apprehension that
> with you to llxhall : pray, did he
h you to Htanden for tliat purpose, to
foa to Tixhatl f
ision. f had no bnsiness with him at
lie desired the opportunity to go down
m|>any into ikanordshire.
T, Pray, my lord, do you rsmember
him within ftiur or five days after at
iiton. To name particular days, I
but that I saw him several days at
I am sure.
My lord, yon ny that sir John
t went with vou to Tixhall ?
iston. Yes, he did ao.
My kird, 1 would ask this noUemao,
be viras at the trial of ttie Five JetfuitsP
ial of Ireland ?
itton. No, my lord, I was not.
Then I woulid ask my lord, if he saw
ind executed ?
Uian. No, 1 did not.
Then I would ask him this question ;
the Ireland that was executed be the
land he speaks of?
Uton, Aiiioiifrst tliose that knew him
ftve been told it was the same.
That is but hoar-say, riiy k>rd ; he
Bpeak of hi8 own kuo'wictlii^c.
r. For that matter, I suppose you will
lome other Ireland, Mr. (.'ales, if it
he same.
kn. Was it this Mrs. Ireland's brother
here a witness now ?
dtion. He was so reputed, and so
MB.
X Thai is all one. If any body
ik «e, if you wen the Mme Mr* Oates
that was at St. Onaers ; I should say, I bear4
ao ; and it would be verj good evidence, nnlesff
some one else were produced.
OaUt. My lord, 1 submit ; I will be directed
by the court in any thing that is fair and not
iiijfirioiis to my de'tence.
L, C. J. We will not direct you in any thing
that is ftml ; but pray keep to those questions
that are pertinent.
Gates. Are you sura Ireland went the wholo
journey with you, my lord ?
Lord Atton, 1 did answer that ; I have hoi
a general notion of it, he came to me for that
purpose.
Oiii/». Then my lord is not positive he went
with him into Staribrdshire.
JL C J, No, he is not ; but I would ask yoa
this question, my lord Aston, do you believe h4
went with you to Tixhall P
Lord AstM, 1 make no doubt of it^ I wouM
pawn all I have in the tvorM npoa it ; only I
cannot swear it, because I have it not in my
notes, as I have those two other days.
Just. WiihiHM, Do you like him the wsrse^
because he is cautious, Mr. Onles f
Oaia, No, Sir, I do not. Hut pray, nny
lord, ask him, because it is a question her«
about a point of time ; whether he rsmemhersi
that within eight or ten days be saw Ireland at
Tixhall r
Lord Alton, I cannot say any thing as ts
that.
Att. Gen. Swear sir £dw. Southooat [Which
was done.]
L,.C.J. I thought yon had called him sir
John Southcoat.
Att. Gen. 8ir John is sick, ami caaiiot be
here.
Oatcs. I suppose my lord Aston is a Rsmstt
Catholic ?
L. C. /. Ay, that all the werld knows very
well : but I tell yoa what, Mr. Gates, I ob-
serve he is not so easy in giving his oath ; nay»
he is wonderful cautious m swearing : I speak
it for his commendation, not as hiswult, he is
not very forward at swearing.
Just. WUhim. Well, what do you ask thi
gentleman, Mr. Attorney ?
Att, Gen. We desire sir Edward Southcoat
would give an account, whether he met Ur.
Irelandat my lord Aston's f And when f
Sir Edw. Swithcoat. I was with my k)rd
Aston in his company.
L. C. J. When was that, Sir?
Sir £. SouthcMt. The 4tb of August I saw
Mr. Iroand at my lord Aston's.
L. C. J. Was it the same Ireland that was
afterwards tried and executed ?
Sir E, StnUkcoat, It was tlic same Ireland
that was commonly reported ; I did not see
him executed. -
Att, Gen, Was it the same that wail reputed
to be this old gentlewoman's son f
Sir E, &mthcvat. Yen, it was.
L. C, J. Pray> Sir, go on with your cvi-
denee.
Sir E. SoHihcoat. Upoa Monday w« begaft
4L
125!]
STATE TRIALS, 1 Jambs H, l6%5.^THal 0/ ruui (ktt^,
OMt jonroey to TUWl^ and went that uig^ht to
8t. Allians, where we met my fatlier and
mothertaQti ilieuce we continued on oar jour-
ney tiie next day.
i. C. J. Was he wiih you there tlwt day
you went lo 8t, Alhan-s ?
hlv E, Sout/tcikil. He was with us, I re-
lueiwlier very particularly. It was hot weather^
und my \ort\ Aston invited him into the coach ;
Ibr be*iife he was riding by tiie coach aide, and
there [ retneniber a |>arti€u1ar disoouree that
he and my lord A^ou had ; from thetic« we
went on to* Northampton, and came there Tues-
Jay nigfht.
L. V, J/ AVaa Ireland with you there ?
Str E, Southcoat. Ireland waa with us there.
Oaies. My lord, I did not well oh8«±rve what
llii^ gentleman aaid.
L. C. J. Pray mind your businesa yourself,
be speaks plain enoujjfh ; jr© on, Sir.
Sir E. S<mthcoat, Rlr irelaud was with ua,
J aay, my lord, all the joumpy ; and i do re-
meniher it partictdariy by a pretty horse Mr*
Ireland rode upon ; and I had a dispute with
Hiy cousin, who shouid buy him : I took par-
lie tdar notice every day ot' him, as he rode by
the coach, and converseil with him every night
m the inn- We went, I say, fiom Hi, Albans
to Northampton on the Tuesday ; from North-
ampton we went to Coventry »jn the We^lues-
clay, and from thence to mv lord Aston ^s, at
Tiiball, on the Thursday,
JL C, J, Come, let in» go by dcgi'ecs. Wui»
Mr. Ireland with you, nhen you went from
my lord Aston^s at Standen to Hu Albans P
Hir E. Si7uthcoai, Yes, he %v:i5,
L. C. X You say it wus a hot day when
you fet out ; and my lord Aston did invite him
into the coach.
Hit' E. Sou thcpat. Yt\<, my lord, he came
into the coach on Mtimlay^ which was the first
^Bv we set out, and came that uigUt to 8t.
Albans.
L. C, J. You lay tliere that night ^
Sir £, Southcoat. Yea, my lord,
X. C. J- Where did you he tbejre ?
Sir £. Smtthcoat, At the great inn, at the
0ulK
X. C. J. Ay, that ia the great inn.
8rr JEI. Southcoat. The next night, my loiil^
we came to Xorthamploii,
X, C, X Whete did you lie there f
Sir E. Soulhcuat. W^ lay at the sign of the
George; it was sir WiUtam Farmer ^i house,
liut made use oi* for an Inn, because the town
was burnt down*
X. C. X Was Mr. Ireland with you all that
day ?
C!Mr £. Southcoat. He rode with us all the day.
X. C* X And you took notice of It^ because
of his horse you say ?
Hit E, Suutficoat. Yes, he had a very pretty
liorae, my lord ; and ray brother bought the
horse f if him after we came hack again.
X. C J. W hither wt»nt ye the next day f
Hir il Southcoat. The next night we lay at
the Bull in Coventry, and from tbwoe ou
Thuradav, we arrived it my M J
Tixhall/
An. G§n, My loni, the jury 1I
what he says ? For tbei? have not I
X,aX Heaavs, Sir. IMind w^^*
my lord Aston in the coach, it biiiig t ^^
on Monday the Mh of Auguit mm » J
oir lord Aston's house in flertfcrdihir^^
AH»ans,and lay ihere at the Bull inn tb^
That he went the next day, whicb w**^
day the 6th of Aogiist, with them
thamplon ; that he rode upon a ytttt^
which makes him remember it poc
and that there waa a dispute m% 1
who should buy him ; and wbeul
back, his brother houglit him. H« ;
lay on Tuesday night at No
the George which vi'aa a
house^ which was turned into
cause of the fire : That he went ^i£
the next day to Coventry, wbicli was
ncsdav the 7 th of August, and lay 1
that night at the BulTni Co-—* —
next day, which was Thur
came, and Ireland with them«
tun's house at Ttxhall, in Sta
Aif. Gen, Pray sir
how lung did he stay with yotii
my lord Aslon's?
'Sir X'. Sinithcoai, He staid witU us fl
the Tuesday alter ; aad then we Nfl
ioiirn«^y from my lord .\stou*& hoiisei ial
mto Wales, to 8t. Winifr^'a Well.
L. a X Tliat is Eloly-we
8ir E, Soutkcoai. Ye^ my I
X C* X You say he staij ti
day, Sunday, Monday, and till Td
yon came to my lord Aston's at Til
Sir E. Sottthcoat, Yes, imr lord, Iw^
Ai(. Otn. 80 then, my Catid, we wm
to Tuesulny the I3th of Augiist, wbid
the time of the pcrjnrj^ ilt^ m laid en
the Indictment ; but ui point ctf Um^
lirst thut happened, for he swore thai
took his leave of him, and others beEeJ
between the 8th and r^Ui of Au^aatf <
SoL GcH* Where did von ^ 011 T
Sir ?-^Sir E, Simthcmt, 'Toward* Wal
Mr. Janes. Was heat Tixhall
August ?
X. C. X He says, he was till *
1 3th . Fray \tA us' not have the 1
repealed over and over again.
Snl. Gen. Where did you g«
night ?
Sir X\ Sattthcoat. We weot y»i
and lav at the Ho!v-Lamb there.
L.C.j' vuuihei
Sir E. uextday wei
lo!4t Winilreas *>elK
X ,C. X Wher^did you lie tliera ?
Bir X. SoutkcoaL At the Hiar, whkl
great inn tliete.
L.C.J. It is so.
Au. Gen* WasMr. IrekudHtCfWi
Hk E, Southcoat, Yei,liew«i.
Ati, Gen. Whither dii je go tbeaf
rd» Wal
all j^
rs am 1
nS9
S'^ S€mihcoiit, W** ^l^iij not btil one Jay
' — "%^«ll 'f for w^ arrived there pretty late
:u» ajid aU die moi niiig- we i>9|H.*nt there,
ht. AH ay in tUe mtlernoou, mul cam«
ftin^ to C Lester » aud hiy there only one
^ ^*. n^ came the next dmy to Tixball again .
^^^^ '^^~cw%. Which wiu l^'ridav the 16th nl
"^^^"^*** Pniy, my lord, be pleaded to ask
►^^^^^^c-ther thk gentleman, Mr, Ireland,
-^^ t.UeinaUthe while, in thisjouruev to
Every day particukrly
L **^fc^r it y^T"^ perfectly.
tefj
you
I
«rj«. Ailer he came to Tijchall again,
did he tarry there t
- Sumthamt, Thai I cartuot so well say.
^***«njber truly, but he was atlerwaifts at
^1^^ Aston's at TLxhah, 1 renieinher some
^^K *^>5 ; ^^^ 1 cannot fix upon only
-^C, J. Which are they?
^^ -^'^ ^!«*Acotf£, 1 caujiottcU what day of
w^tSiiinth it was, or what day of the week ;
*J** one day that I renierobw him there, w as
^"f <-Uit?iwind's race with sir Henry Goutth :
^'^■*i. other day.
/, When was that horse-race ?
^-.i JL, SoHthtLKtt. My lurd, I caonot
what day of the month it was.
AiL iren. >Vhen was the other time
%pnJc off
Sir R, Southcout, I remember him there
le Thursday upon the Howlini^ Green at Tix-
ill, wJiere there was a particular comfiaDy.
Sol, Gun, My loni, we desire to Luow, when
im brother did btiy ihe horse of Mr, Ireland?
H*r E. Southcout. When we catne back ; for
t-niue home with us irom my lord Alton's,
iW*: an our journey^ tiie 9th or 10th of
; or, from Tixhah to Kingston ; and
»e arrived at my father's house, my bro-
hooght the huri^e of him.
. C\ X Did you come home hack again
nvith Mr. Irelaudf do you say ?
fc^ir X*. SQUthcout, Yf s, my lord, we did,
M, C. J* When did you set nut fmm Tivhall ?
Sir M* SmtthcuuL The tfth of September,
IBD V lord, 1 thmk it was ; I am sure it was iijion
^ Monday, the 9th or lOtli.
• Xt C. J. When did you come home ?
Sir £* Svuihcoat, We were four days on our
journey.
I^ C, J. And did you come straight to Lou-
doo /
Sir J). Sifuihcoat. No, we went to my fa-
llier'f house in Surrey.
X. C, J. Which way did you come ?
Sir £. Southcoai, 'the first oight we came
10 the Bull in Coventry ; and from thence,
U>e next lught, we went to the Aliar*8ione at
Banbttiyt and trom Han bury, we came the
tliird day to Agmoudesham (I think, it ia call*
0d) a fittle town in Buckinghauuiihire ; and
f9om thence the fourth day, to my father's
facmiae, by Kingston in ISurrey.
Au, Otn. Aod then Ircbud sold im brother
[IS54
L. C. X How long was be at your fathei 'f
house in >*urrey, sir Edward ?
8ir E. Sonlhcikit. My lord, we came on hm
Thursday ; and as I take it, he weui on the
.Sat II nla V to London . My brt*tl jer, afte r he h ad
bouj^ht \m hnrtje, lent him tlie horse to town ;
and sent a man with him to bring it back
again. i
An. Gen, That Saturday, my lord, makes
it come just to tbe Mth nt September : and if
the very day fortnight before Michaelmas -day.
Oatu. My lord, I desire to -^k ihjs gentle-
man, whether he saw Ireland ull AngvisC, and
till the I4lti of ??ieptember in Siarfordsihire,
and ebe>^here? And how long in 8tallord«
shire?
Sir E, Stmthcoiit, I cannot say as to any
particular days of the months, alter our cotiiintf
from Holy-Well, till our coming from Tixball
to London.
/*. C\ J. Marry, if he did, he would contra-
dict what he h^ said befon^: for, fmin the
time ofconr»ing from Hol\ -Well, tii ihetiuie of
coming back to Londou, be vould tc*u Out o|
two days, and those uncertain : fi»r hi rt^nu^i*
bei-snot by the limes, but by oiliir ,>»riicuUr
circumstances. i
Out 14, Pray, my lord, be jdeased U ask liim
this question, *vhen was the tirsl day he saw
liim m HeplembtT ?
Sir i\ Sinithcout. Truly, my lord, I remetu-
bcr not any day before « c began our journey
borne.
Att, Gen, But, my lord, Utt^ js his leiiti-
moiiy : he was in his company wl the ICitii of
August It is true, there were other times
that he saw him at T)xh«tll ; but he i*aimot
particularly speak unto them i but, l»j and by,
we shall go on to every day, and prove par-
l ic 1 1 larly vvliere he was .
Oatt's, My lorii, i desire to know, w its sir
Eilw. South coat at the tri^d of Ireland a witness
or no ?
Sir E. Southcoat, No, I was not, my lord.
Oatcs» VVere you at Whitebread's Trial,
Sir?
8ir E. Southctkit, Yes, i was, and gate thm
same evidem e 1 give now.
SoL Uen. Then swear Mr. Johu Soutbcoat.
[Which was done.]
JtL Gen, This is ahr Edward Southcoat'i ^
brother, my lord,
L. L\ J, What, he that bought the horse?
Mr. J, Sauthcmt, Yes, my lord, 1 bought
the horse of Mr. Ireland.
L, C* J. Well, what do you ask him *
An, Gen. Pray, Sir, when did you meet
Mr- Ireland iu August 16?8? and wticrc.
Mr. X Southcout, My lord, I met with Mr.
Irelond, upon Monday the 5th of August, iiithe
Bull-inn in St. Albans, with my loid Aston ; f
came thither that day with my rather and mo-
ther. And the next day we went to Norlhaiup»
ton ; aud there we inn*d atthesign oftheCieorge,
sir Wdliam Farmer's house, which is au house
in the road, usetl for an inn since the town was
burnt; and 1 conversed with hjtn every dayi io
J
1255] STATE TRIALS, 1 Jambs II. IfiSS^TrM/i/TIto CMet, [VBH
onr journey. And from thence, the next day
we went to Coventry, to the Biill-lnn
tliere ; unit from thence to mv lord A«ton*s(on
TInirsiliiy nijiht) at 'V\y.\.\i\\ : 'there we staid all
Fr'M!a\ , Satnnlay , Sunday, and Monflay. Mr.
IrcianJ u'ns thr:\ ; I was with him all the
irhilf. And then njion Tuesday we set out for
Holy -Wei! in Flintshire, and went that nigfht
to $iantwich, to the Lamb there. And the
next day we went through Chfstcr to Holy-
Well : we staid that ni^ht at Uoly-Well ; and
the next day came back ajrain towards noon to
Chester ; and there lay tliat nijsrht : and then
llie next ni^it, which was Friday, wc came
back asain to Tixhall.
L. L. J. Was Mr. Ireland with yon both
those journeys, all the while ?
J, Suutficoat. Yes, mv lord, he was; I did
Bce him, and rode with fiim e*'ery day.
L. C. J. Pray, Sir, how long" were vou at
Tixhall, af\tr you ranir from Iloly-Weft?
J. Sout/n'O'it, Wo staid there till %ve came
awav r<ir »(it>d aii'l all.
jL'. C. J. Was Mv. Ireland with you all that
time ?— J. S^niiu'uat, No, ht.' was not.
Ati. (Scti. Doyoii rcimMiiljiT, that i\Ir. Ire-
land came to Jixhall tlio OJh of fe8cnteml>er ;
and came alon^ huiiie with you when you
came ?
J, Soaihcoat, Yes, L do remember it very
trcll.
L. C. J. What day did you come home.
Sir?
J. South coat. We c;itrc home in four days.
Sol. Oc:i. When diM liv* lean? you ?
J. Si^uthi\Hit. ^^\' 'crwAv hivnc imon Thursday
and he wem to !.{»'i'!:ii; m S.4tiir<lay,
L. C J. IVr.y, Sir » .'ti you riToliect when
you did firtt Jlijin :.u:*.in;ii Tixhall, at\cryou
caiiw ln-:ii ll»,!\ -\\ rll "'
J. Nfi '/.'/'■.■ ^^' 31 y lord, 1 cannot tell par-
ticularly :i:^y ilny. \ili tlio day uocanic away.
L. ('. J. Wo /on rruiciiilKi tii.r lH)'se-inaich
b(t\veo:i !\lr. C'liVtwiiidaml sir lltiiry (toujjIj?
J. Souf/fcial. I \ias there, my lord; hut I
do iii.t n'iit(!>ibi r Mv. Ireland uas there.
J.. C. J. Ii«»\v loi:;;- did he slay at \our fa-
ther's houM' 111 Sun \ , Sir?
J. SiH'fhivaf, T\>d slays, my lord.
^W. iiv/i. Ynu I. 'Ill iiim }uur horse you
boutrht ot him, I think, Sir ?
J. Sci:f/iCi.(it. \ cs. Up to London, I did;
and I sent my man with uini to brin<^ hiui bark
a^ain.
^lif. Ocn. Ihis Mr. Oates any cpiestions to
ask tliis <rcnt!t'tiiaii ?
Outrs. !\ly lord, I dcsiiv to ask Mr. South-
coat, uhrthrr or no he is sure, th.it IMand
was in hi-i t-oinpauy iroui the 6th of August to
tl«' sixteenth ?
J. Sonihcoiit. Yes, orry day, I am sure of
it ; I ri'niember it Ti»ry w ell.
Oafrs. IV.iy, my lord, ask him, whether or
no he teslitied this that he now swears at Ire-
land's trial :•
J. Southcoai, My lord, I was not at Ireland's
Trial. ^ '
Oatet. Then I desire to ask Inm.irbiibcr
or no he did testify this at the fire JaiH
Trial ?
J. Sovthcoat, No; I was not sent for to aj
of the trials.
L. C J. I ^id sorry too were not, Sr: It
was pity yon were not tliere. It migfat hivi
saved some innocent blood.
Aft. Oen, Now swear Harrison. [Wbkh
was done.]
SoL Gen, Pray will yonnve an aooMl
when you saw Ireland and where ?
Har riwn. In the year of our Lorf W%
my master sir John Bouthcaat, wcntvhknf
lady, on Monday the 5th of Au^ns^ tsflt
Albans ; and we eame with a eoach and ft*
horses: for my master had an oUsom^
that tiad a pair of horses, which my OMfel
made use of. And there we met ny M
Aston, in the company of Mr. Ire-land. M
the next morning, my ford Aston went witfaaf
master awd laily towards TixhaM: and IfM
by, in Mr. Ireland's company ; and caBie»
ijiniinled with him tliat day. That n^fi
euiue to Northampton ; and thcn> we ivneit
astone-huuse, that was used forlbeinc.tk
town bciny: burnt before, llie next uijli! ft
wiMit to Coventry ; and on Thursday ifteem
toTixhdll: thore we staid till Tuesday. AAff
we went to Lloly-well ; ami the Tifesdsj tifl
we Jay at Nantwich : and tbenve ue wcsin
Holy-Well, jmd stsud there on Wcdneidi|
ni(>ht : and on Thursday we came to Wol-
(■liester; and I purtoilwith htm upon ikl
FiHday at West-Cliester.
Alt. Gen. Pray, did you know thb Irdu^
Was it h(> that wfis tried and exemted ?
Hurri*'>n. I was at l^lr. Irelaml's trial.
L. C. J. Was it the same luan that stt
tried ?
Ilarrhnn. My lord, I saw him at Im trill,
tlio hair of his'facf was jijrown, and hew«i
little di^onliTtd ; he did not look so wriLbf-
eaisse lie was not .so well dressed ; hot K wa
the sauie man, uiy lonl.
^:)l. Utf!. Hrfon- this man g^oes, we hue
more ijueslii^ns to nsk him: When did yoaiK
liiiM ^.'.^ain, after you lei't him in Chester.fon
say ?
Jlarrinm. I saw him several times at Tff-
hail; ( saw him at the Bouhc^-^en apn
Thni-i»'i;i> ; and 1 saw him when the hone-
nv c Mas hclwe. II l\Ir. Chctwind and sirHwiy
r^jiii'^li : 1 ratinol tell what day it was; tsri
had no reason to kvo\) an account of the [«r-
tici.lar days nt that time.
Aif, G'lf. Did you come up with \VO
master ;iijain the <>th of Seittember?
Harrison. M\ lont, I did so; Ihaveasoie
wherein I set ilown the char^res at that tioK*
It is in this hit of palter, which I bate krptia
my ulnianack ever since. My lord Aston kH
his coach with us to Banbury^ w hire mj w»
ter's crmch was to meet him ; but cameoslf
to Coventry the first nig^it. The next vi^
which was* Tuesday, we can»e to the Ata^
stone at fianbnry, aatl ifaerL' we tay : Ft^m
STATE TRIALS, i JauU IL l£S5«-:/br Petjmy.
[1258
m Wednesdaj, we came to ^tDonde-
'here we were ill lodged. The next
nited at Uxbridce, and came to King-
d 80 to sir John Houthcoat'a house
i Tbuiwlaj^ night. Upon the Friday
and sold his horse to Mr. John South -
y master's son. Upon the Saturday
, I came with him from my mafter's
wards London ; he did ride upon the
had sold to Mr. Soothcoat, and so we
> to town, and took water; and I took
mg that belonged to Mr. Ireland upon
1, and we landed at Somerset-house,
me with him to his lodginff in Russel-
atid wlien he came there, he went up
here two women met him, and wel-
imhome: Seudthey, We are glad you
f, we thought we had lost vou, because
lerer heard from you all this while,
took my leave of him, and did not see
lin tiH his trial at the Old- Bailey ; tod
Haturday the 14th of September.
J. Kray let me see your paper you
'. [Wittch was delirered in, and the
deed upon it.]
/. Dio you write this in your journey f
Km. Yes; my lord, I did it at that
"ien. Are the particular days inserted
fiord.'
t. No, they are not, Mr. Attorney.
KM. I could not write well; it was
memorandums for myself.
J. Wbat day of the month was the
' he came to town ?
Km. It was the I4th of September,
r. That agrees with all that the women
t he came on Saturday, a fortnight
ichaelmas, being the same day of the
Michaelmas-day was : Thus far it is
IS the sun at noon-day.
My lord, there was a time when this
lelieved.
/. Ay, Mr. Oates, we know there was
hen there were Ignoramus juries, and
ere believed, and not belie>ed, as the
sent. What can you, Mi*. ( ^ates, say
must needs tell yon. prima fncie^ it is
' an evidence, tliat if you have any
the world you must be concerned
Not at all, my lord ; I know who
and u hat is the end^ of it all.
f. Upon my faith,*! have so much
(Mr you, as my fellow-creature, as to
ned for you.
It is not two straws matter whether
DO ; 1 know my own ionocency .
7. Thoo art the most obstinutefy bar-
elch that ever I saw.
Pray, my lord, ask him, Whether he
r at Mr. Ireland*s trial f And let
1 wbat credit he had then for
wy \m telb now. These people come
m • toni OBly^ and care not what
ir against me.
L,C.J, You must hold 3r<Mrl(mgn«.
Oaiei. My lord, 1 must speak tlie truth, and
I will speak the truth.
L. C. J. I think there w scarce a word of
truth comes out of thy mouth.
Oates. You may think what you will, my
loni: but these Popish Traitors, I am sure, will
swear any thing, and suborn witnesses upon
witnesses against me to overthrow the plot.
Just. WUhins, If you cannot behave your*
self better than you do, we must send you else-
where ; we must not suflfer this beliaviour : and
tlierefbre either be quiet, or get you gone.
L. C. J. Let him keep himself in order, and
we'll hear him. If he thinks by boisterouB im-
pudency to outface justice, we wilt not suffer it.
Go on, Mr. Attorney.
Ait, CetL Swear Mr. George Hobson.
[Which was done.]
Sol. Gen, Were you in the journey to Hx-
hall with Mr. Ireland, and uiy lord AstOB in
1078 f
HobtoH. Yes, I was so, my lord.
Soi. Gen. Pray tell all your knowledge of
the matter.
Hobson. From the 3d of August till the 16tli
at night, I was present with him every day.
X. C /. How do you know you were ?
Hobson. That is to say, the Sd of August b«
came to iny lord's house at Standen, in Hert-
fbrdslihe, in the evening, and there he remain-
ed till Monday the Mb of August ; and that
day in the morning he went, together with
other company, to St. Albans, where we met sir
John Southcoat and his lady towards the even-
ing; and we all Jodgefl there, because that wa«
the appointed place to meet at : we lodged the
6th of August at night at Northampton ; upon
the 7th at Coventry ; upon the ath at Tixhall,
my lord's house, where Mr. Ireland remaine<l
till Tuesday the iSth in the morning. Aud
upon tlie 13th in the morning we «et forth with
my lady Aston, my loni's luotliei-, sir ^*>htk
Southcoat, and Mr. Ireland, aud the otlier
company, towards a place called Holy- Weil in
Flintshire. That nig?it, being Tuesday the 13ih
of August, we lodged at Nant\«i<:h in 1 -hesliire;
the Wednesday night we lodged at Holy -^Vtrll,
where Mr. Ireland was with the rest of the
company ; and on Thursday night we return-
ed back again to Chester, and lay there. Upon
Friilay we came back again to my lord's house
at Tixhall. Afler tliat I did not sec Mr. Ire-
hind till Monday the s^eth of August, whtu he
I'uine back agam to our house: where he went
in the mean time 1 cannot tell.
L. C.J. Whose house is it that thb man
means by our house?
Habffhi, I mean my lord Aston's house, at
Tixhall.
X. C. J. You know hhn ver}* well, did not
your
Hobum, Yes, iny lord, I knew him very
well.
L. C. J. You say, be came bark the C6th of
August to Tixhall ?
fioton. Y«, as I rrmeniber, he did st^
idsd]
STATE nUALS, 1 Jambs II. le^S.—JVmloflUmg (Met,
Att, Gen. How long after the f 6tb of Au-
gust was ity that you baw him at Tixhall P
Hobson. When he went away from London.
Att. Gen. When was that?
Hobson. The 9th of September.
L. C. J. Did you come along with him to
London ?
Hobtofu No, my lord ; I saw him go : be
was not in the coach, but be was in the com-
pany.
Gates. My lord, I would fain ask him a
question, when be was first acquainted with
Mr. Irehmd, that he speaks of'?
Hobson. 1 never saw him till be came to my
lord Aston's, at Standen.
Gates. Were you at the trial of Mr. Ireland,
Sir?
Hobson. No, my lord, I was not ; I was then
in Staffordshire.
Gates. Then it is material, my lord, for me
to ask him this question, it relating to a parti-
cular person ; whether Ireland that was eie-
cuted, was the Ireland be says he was with ?
L. C. J. I will ask him, if you will. Was
that the same man that was afterwards tried
and executed?
Hobson. I belie?e it was, mv lord.
Gates. I insist not so much upon the ques-
tion, but only in reference to the witness, his
acquaintance being so short with him.
L. C. J. Truly, I think it is not so iTery
short, for he swears he was with him from the
Sd of August till the 16th every day.
Jusl. IVithins. I have no great acquaintance
with you ; but 1 know you, Mr. Oates, because
1 have seen you so often.
L. C. J. Is it the same Ireland that was at
tlie trial ? Vou, Ilarnson, you saw him then ?
Harrison. Tiie vvvy same and no other.
Just. Withijis. Certainly nobody doubts that.
L. C. J. It is tit he should have this ques-
tion answered, if the witness can. Pray, go on,
Blr. Attorney.
Att. Gen. Swear George North. [Which
was done.] Pray, will you give an account
where you met Mr. Ireland, and whether you
was with him in his joiitney ?
North, My lord, 1 saw him the 4th of Au-
gust, which was Sunday, at Standen, my lord
Aslon^s house, in Hertfordshire : upon the 5th
he went with my lord to St. Albans ; where my
lord met with sir John Southcoat and bis laiiy ;
and 1 was with them. And from thence we
went on Tuesday to the George at Northamp-
ton : and from thence, on Wednesday the 7tn,
to the iiull at Coventry : and upon the 8th, we
eamc to Tixhall, which was Tnursday. And
from Thursday the 8tb, to Tuesday the 13th,
I did see him every day at my lonrs house at
Tixhall.
L. C. J. Whither went he then?
North. He went with my old lady, and some
other company, to go to Holy- Well.
X. C. J. W hen did you see him again ?
North. I did sec him several times after that
at Tixhall, but I took no particular notice of
him agaia till he went away for London.
L.C.J. WhanrMthift?
North. I did aee him the 9th of Sol
He 'Came to go with air John Soomi
London: Mr.JobDSaolbooat,aiidbe.
my leave of him.
Gales. What rdigioD are ywiol^flir
North. I am a Catholic, my hud.
Gates. I desire to know, howlieeoiiM
aienri)er this ao well ?
North. I waited at the table ; and
every day at dinner with my lord.
Gates. Were you at the trial of In
witnesa?
North. No, indeed, my lord, I was a
il//. Gen. Swear Richardlngktnp. |
was done.]
Sol. Gen. Pray, will yoa gite as a
whether yoa knew Mr. Ireland, amI wh
saw him r
Ingietrap. The first of Auj^, bbt
was ordered to be at Standen m Ueitm
to wait upon my lord Aaton, to go with
Tixhall. And the Sd of August I saw 1
land there at Standen Lodge at my lord*i
The 4th day he rested there, lieii^Si
day.
Att. Gen. What are you, an hackney
man?
Ingietrap. Yes, my k>rd, I am so
uj^n the 5tb, which was Monday, 1
wuh my lord Aston to St. Albans; u]
6th, to Northampton ; on the 7th to Cw
and tlie 8th day to Tixhall lodge. He
the company, and went all the way will
and I was there too.
L. C. J. How long did he stay there
Ingietrap. Till Tuesday the 13lh.
L. C. /. Did you sce him there till Tu
Ingietrap. I do not say, that J did s
every day.
L. C. J. Did you go with them on T
to Holy- W ell ?-^Ingietrav. No, 1 did a
At I. Gen. But, my lord, you observe,
past one of the times that he swore Iiels
here in town ; that is between the 8th ai
of August.
L. C. J. It is so.
Att. Gen. Pray, what religion are i
3Ir. Ingleti-ap?
Ingietrap. 1 am a Protestant, my loi
Gutct. Were you at the Trial of ll
Jesuits, or tliat of Ireland ?
liifiletrap. No, I was not.
Gates. My lord, I desire you would u
he being a Protestant, how he came to
quaintcd with Ireland, that was a priest r
L. C. J. ^Vliy, Mr. Gates, is there no <
sation to be beiwcen Papists and Protesl
Gates. Truly, very hltle, my lord : b
is not the point now. I desire to have
swer to my question.
Ingietrap. There was no great acqna
between us, my lord ; for I never saw b
fore tliat time.
Att. Gen. Swear Andrew Wetton. [
was done.] Did you go that journey v
lord Aston to Tixhall?
STATE TRIALS, I Jam El 11. Ifia5--/ir Pajury.
[I«»
No ; I went from Tixhall to Holy-,
Qtsu Whftt dny did you iet out trom
I Tuesday the nth of August.
\\%*^y^ *\\t\ vou lie th»t Dij^ht?
at tbe Holy- Lamb,
_: _^ lit Chester; und TrtJin
\ c^itit; the nexi nigla to Holy-NVcll.
I wc lUiid all uij^ht^ aijd till uext day ill
m. VVe dioeil at iioly-^eUi mid came that
ht Mck U> Chests ; uud from llieuccj ihe
\%e came botne U) Tixti^il.
J. Was Mr» Irdaud tUere jl)1 tlie
Han^ Mr. Irelniid was tb<!re; 1 looked
tborfec.
, J, H ben did lie come first toTixball?
Ifun, He eatne opor* the 8lb, and staid
1 13th ; and then went to Uuly-WtlL
* Pray, \\ hat religion are you of?
I am a Proleslaut, Sii',
And the 9iU of September he
r from Tijtball ii» London, you say*
Yea ; 1 saw tbeni take coach ^ und
[ rid« on borsebuck.
t\ J. Did you sec him ofleo at Tixball,
the urn he i^ime from Holy-Well
illOie be Hent to London?
Yfw, he was there several times ;
01 tell the iiarticubr daya; but, toy
r fMiu pleaae, I can t«;ll yon the very
Co gijtve me, which was a shiUiu^ and
ciicfai wben he came back trom
And tlie 16th« you say, be came
[||o|y-Uell7
Ye«, it \>as tbe ^6tbt upon Friday,
BO from Hilly- ^V ell.
jay J, tbe 9th of September
fom Tixhall to London ;
e«eral Limesi, in tlie mean
FlOfd' Alton's bouse.
si>, ray lord, we are past one of
and have fixed him al Tixhail
loih.
Xu. Gtn* We have ff couple of xvttneasea
\ upon tbis point, and tbeu wc rhall g'o on
I7th ; and no all aloug t# tlie Uth of
- r Thomas Sawyer. [^V hk:b
^roe 31r. Ireland lo Ttx-
kmt* tbe 0th of Augiist to Tix-
tifiiii^l there till the 13th: and
V but wbitber he went 1
i wus iold» it was to Holy-
i Oem. Whim did he coAe to Tixhall
WIh^o my
^'which W''-
Men, l>
old lady Aatoii came
i)»e 16th.
^ wben he leftTix-
f Sc|iL (iber, roy lord, he
\ hit ji^uii 6uuthi;oal to go to Lon-
JL. C* X Can you remember he wax there at
anv time between tbe I6th of August, and tho
916 of September?
Saucer. He wu^ once or twice tbere \ hot 1
cannot tell U»e p;titiculttr daya,
Siii, Gen. U bat pel's iias ion are you of^ as t»
religion, Sirf
batcher, I am one of ibe cburcb of England*
my lofHl.
X. C\ X Truth is the same in all persuasions.
Sol. Gen, But we would obviste Mr, Oates^a
objection, that they are all Papists.
Ati* GcH* Swear Frances Allen. [Wbick
was doQe.3 Pray, will you ^ive an acoouui
when you saw Mr. Ireland in 8ultordshire f
Mrs. AUett. He came the Btb day of August
to Tixhall, and continued (here the 9Ui, Kitb^
1 Ithy latb, and to the 13 tb in ihu morniug, and
then be ditl go to Holy < well.
Alt, Ocn, She will tell you one particnlar
cii>cmnstance, bow she remembers him about
that time.
Mrs. Allen, The 10th of August was Satur-
day , and that which cuusetb me to remember
it, is this : There was a woman, one 8arah
Paine, 1 think her name was, which testified at
the Trial, that he was in town at that time ;
but he was not : For he was at Tixbdl upoix
the lutb, which was Saturday ; and tbe llth»
which WOK Habbath*day : and 4 snw him in th«
chamber those days.
Au, Gen, Uow came you to know him s»
well ?
Mrs. AlUn. I was a servant to niy lord As-
ton, and louked to iMr. Ireland's chamber, and
u ashed his limien : and tliose days I saw him
in his chamber.
Att, Gen* When he went from Tixbal] to
Hul^. Well the 13ih, when did b« comeback
again ?
Mrs. Allen. The 16th day, which wa^
Friday.
Ati. Gen, Did he come afWrwards to Tix-
hall at any time ?
JUrs. Aden. He went away the lith, and I
call tell you by a good token, that he did so :
For the t7tli I carried his ctothen into his
chamber, that he was to take with him.
Ati. Gen. When did he come amilo to
Tixhall ?
Mrs, Alien, He came several times, but
truly I cannot tell wbut daysparticulaily.
&iL Gen, Pray when Uid he go away for
good and aUr
Mrs. Allen, I remember his going away
with sir John Souihcoat, but 1 cannot telj thii
time,
Att, Gen* Pray what relljfion aie you of?
Mrs, Allen, 1 am a Prott stunt of the church
t>f Engliuid i so 1 was cbri»ieii«ii, so I bare
lived, and so 1 hope to die before yuu alL
i*. C. J. Upon my wtird, she is very kind,
she has a mind to diu before us : It is a sigti
she lives a good life, she'ti so ready to die.
Att. Gen. Ho, my lord, you see, that the
17th of August be deoartrd from my lord As*
con'i. Now ^re kball call Mrs. HarwaU tQ
Iflve yoti an acrount whtttx^ be went «m Uje
inh, Hwear Mrs. Jottt! Ifari%dl. [Whicli
doue,]
M. O^Jt. \V I »c re do yon live, Mni, Harwdl ?
Mf«. Hant'fii. I live !H51t ititoM'n, my IomL
^^ G^ffi* >\Tit?re did voti five in the year
ija r^ — Mjre. Uut-ndL Al \V<ilverbani|itoii.
^. Off*. Did ;^oii know Mr. IreUud, he
ibat was executed f
Mrs. Harwell. Very well, my lonL
Si^i, Gen, Wbftt time did he come to your
boii$e at VVokerbampion ?
BIre. Ht^wcli. Tbe ntborAoeiiit, 15T8*
SoL Gm^ \\ bat day of tbe week vras it ?
Mra. HartcrlL Upon Satuitlay.
5ol.' Gen. From wbencedid Jie »ay became
«l that time f
Mra, Harwell. I do verily bebefe it was fpom
Tixball tbat he came; 1 caanoi positively lay.
SoL Gen, How long; staid he there ?
Mrs. Harwell, He cacne to my boo*e the
Ulb oi Aunfust 1078, He supped there tliat
nrgbt, and 1 tbtnk he lay in my hotiae crery
ni^t till tbe ^6tb of ibe stnme moiilh. Vf^m
th« 19tb day, after dinner, 1 went \titb bino a
good pnrt of tbe town of WolTerbampton ;
uul uiK>ii Friday following, which whs the
fSd, ht went a bttle way out of town, to a fair
hard by ^ and returoeil the ' >taid
at my botiac ili<' tie.tt day, new
*lay. Tlie next day ttin-j uit .jui, tn-iij^
Stmday, b^ was at my bonsc, and he staid, Uii
1 said, f:\iiry ni«:ht, and Iny ut my boiisr ; and
w^itawuy on Srmiiay the 26iU of \u^u^{. It
wiLSf to tbu be:»t of my remembrance, iu tlit
momin?. •
Sol, Gtii, VVbither be did say be wa* pfoing^,
when he wenlfr^ui yotir house on the li6lh Y
Mrs, HarttitU. \ think to Tixhail, he said*
HoL Gen, When did yoli lec bmi again
that f
Mrs* Hanrell. He retnmed to rac aijaln ihe
4lh <>f Seplemlier fuHowinff. That nijfbt h«.*
supped at my houi^e, and luy tbeiii : and be
•laio at my house Thunday the 5tb of 8q)-
teml>er, Friday the^th, and he went away on
the 7lb fi^ra me kw Efor»d and nil.
Att. Gm. Whither did be pt ibew ? ^
Mri. HnrwtH, ToTixball, I think, I eauaot
tell.
Att, Gen. Whence did he stiy be came,
when be came last to ymir hon^e ; wbicb was
We<JatS4iay the 4tli oi Neplc»nbof ?
3Irs. lfara:cU. Then be said be came from
Bo4e«ib*l and Black -Ladies and ibiit wny.
SoL Gm. Cnn you \^\\ viny thin-^thul'mikea
you rememlier he wa!» at Hosculiel i*
Mrs, HnrtetH. 1 ha^^e sonji- circgmstntices
fhnt make tue believe and rem em her it,
L. C,J. Ay, tell us whnt th<'y are,
Mrs. HaruelL My lord, U|K)d .^londay tbe
td of 8ei»temt»er» J beard BIr* Irebtid wmild
be at Hoseobeb ainl I mid to my friend tbat
told me !*(*» sure Mr. Ireland will aol be there
tbat uig'ht, and I so near him. Yes, Raid she,
hm wilt Tben» said I, I wiH write to him ;
ml to I did. iliia 1 tell you» tlie -Ub of 8ap-
IWS^l
ivf Offff,
s
tember, whieb wfm Wediteaday, hf
house, aud srnid that ni^t, And iKf inii
days ivith me, and wcol away upottk'
day after.
L. C, J Vr»ti sn V ytm dkl wfit»li
thc^?dor *
Mnf. ii \ **», i didw.
L,C. J. What was the n
writing to him at that tiinr* *
Mrs. HarmtlL One
then in those parts, and li
in^ bis friends at Black
and desired hira to ;|^rve i
she wonid be $2fUd to set^ hun.
X. C, J. HTe came !>ack to you tfi A'
Septemberj you say ?
Mrs. FuruelL Yes, he did «o, flit Wl ^^
L. C. X l>id he *^ --n ibe 4^<l«lW.^
temher that be bad ow kamt*
Mr9. Hamrll, 11. . :, K kI fn.-i i
place, my lord, but 1 know
bad rtfcei^ed luy letter or no*,
wail«*d upon my lady, for abe toki mriMi
wurds,
OftWi, I de»nre In know, whctlier to^*^
tlewoman was at Irelifrnd'* trial *
Btrs. HnrKtlL No, niv h'
that iipmt Ibe I7ib *if Uw,
31r, Irclon*! was tried at th* nil L^ "; '
Hijjfb Treason. IJjKm liie lutb. I ^ a*imb»^
by ibe poat whtit wh« »wurn usri^aH ^,^
(larttcuiartv ais to this time, wblrU I l^'c*!'^
false ; Ami upon my owti cosUa aiid
t*eiU an express away Vf town liorif to
that 1 knew, upon reaihnir the IctKr
writtcii to me, that Blr. In^latinl
cutM*d ; nnd by ttiat express aifso I Ml
tion» biuuhlv lie^etH-'litnu^ bis bhit;
weuu»'!u hrin^ iti wiini'ssess lo iii»^, ^
Ireland was in StatTtirdabtn*, wdoi Mi,
swore hewiL^in town ; at id fipon tbBtllti
staid tbe execution alwtii tive w<n4a. ^^
hope tor a tan'ond triul, but w« <?«HtH wot
it ; and be wn^ ext'cut^'d. I <
cost and charyres : for 1 iIhhil
f could, to Kav
falfte which iv:
L. C, J. *SU
ujMin mv^tird.
Att. Gen, \
lord, fciwear i>l
was done,]
SoL Gen. Tell my lord wkat yvM htm^
Mr freland*s bcintr nt Mm. Biirw^l^ittil'
gu^t lo78, at Wfilverhamptmi
Htiihlon. My lord» iti tbe miMitb iff A\
l(i73, 1 did see !Vlr, Wilh»m Ireknd, at
verba m pton, i.i *>!ilallbrd ; «iiil
was upon the i, imiiJ I «aw Hi
I here, fro- ' . ti *i5th, crcry «■• ^
tlie duv» it I oaitooc be ffi^
in. He tviiii wK^i ray to LHobi^ wliil
was upon tbe i^3d, qj» I'take it, Uil I ^amtl^
{waitive ; but all the rest of tht iIm 1 ^
see KiffH tUere once, if unt lwto»«irlmiM ^J>
Att* Ccn* Wbo^ did he lotlge IliGQf
1 him.
^lately mtd
^""- rml««d.
t^
1 James IL iSSS.^ffr Ferfurf.
I. Har.
8 of Ire-
' now.
* this
of
and
.ec liim
|)on the
the last
lat you
nvelPs,
JO lived
.o\T she
iilarty ?
jecausc
of Au-
c came
^as the
»ii those
ions to
ho was
nd was
by and
idenre.
itanley.
d:mJ at
t 1078.
SOlver-
U.'moon
day the
ly own
verily
nh.nnd
1 Friday
(1a\8 :
chfil'Id.
I sure 1
Jays,
owbiiu
[1366
Oaies. Was yoa at bis trial ?
Stahie^. No, I was not.
Gates. Were you at the five Jesuits trial P
Stankif, No, I was not io London since, till
the last term.
Oatex. What relipon are you of, Sir?
Stanley, What religion are you of, Mr.Oatcs?
L. C. J. Nay, do not ask questions, but aa-
T the questions he asks.
'fcj^. 1 am a Roman Catholic.
' -n. Mr. Stanley, pray can you ra
'rcumstance how you came to re-
vas such and sucb days that
>]i|^ tnlty. Yes, my lord, I can.
'^ . are tiiey, tell Ihem us ?
juried a child that morning', be-
Jie 18th of August, and he canoe
uRe i!i the ai\pmoonj and I entertaia-
with those things that 1 bad provided
entertain my friends at the fiioeral. On
luday was a wake, and the youngf people
.vcnt ah to the wake, and left tnadam Harwell
alnne ; and so^she r4ime with him to my house,
and 1 entertained him with the same kind of
entertainment that I did the day before.
L. C. /. That is a remarkable circumstance
indeed.
Att. Gen, Swear 3Irs. Dorothy Pumell.
[\Miich was done.] What say you, Mrs. Pur-
cell f When did you see Mr. Inlanjd at Wpl-
verliam]»ton ?
Mrs. PvrcelL I saw him die 18tb, 10tb«
20th, 21st, 2«d, and 23d days of August, 1678.
Att. Gen. Where did you see him ?
Mrs.^Purctf//. At a friend's bouse in Wol-
verhampton.
L. C, J. How come you to remember those
days of tbe m/mth ?
Mrs. PvrcelL I remember them by par*
ticular circumstances.
L. C. J. What arc those particular circum*
stances ? I^ct us hear them. How come you
to nanictfhose very days, the 18th, 19th, and
soon P
Mr.s. Ptirall. I can remember it as well as
any thing in the worhl.
Oatts' I desire, mv lord, that she may tell
how shb dooi rcnjember it.
31 rs. PurcclL That's enough, and as much
as need to l>e said, I remember very well.
Gates. Rut I debireto know how you come
to remember it.
Mn. PurcclL I remember it, I toll you,
very well ; and } do affirm I saw him there.
Gate$. But you do not tcU what circum-
stances you remen)her it by.
Mrs. PitrceU. I^o, theri* is no need of it, I
am sure 1 saw him therrtlien.
Att^ Gen. Tell him soino circuntii-tances.
Mrs. Purccll. Those were the day« before
Bartholomew eve.
Gates. My lord, is this any thinir vf evldonct.*?
L. C. J. The jury b»'-r'd it, and they will
consider of it.
Gates. Whstt rdi'^ion arc you of, mistreei.^
Mrs. l^u/ii^'. 31ii^t I tell vibat religion t
am of ?
4M
A
iMTJ . 8TATBTBIiU;iblJAVMlL|$88^M4^nit«|lM^ {Ml
iheaeed
Oslei. Idwenytlieitanpkt;
BOl MoUtf lier beMl to answer It
^ JUU.Qem. Swear Mr. Sootl. p¥hich
.donej Were yoa al.Wolveffiainptan when
Mr. mlatfd was there?— Scolt. Yea, 1 waa.
"" Jatr.ihn. IMjM^wy wanm for him
thenr— &!«/. Iftokedtohishone. . •
Att.GeH. Wbeo did heoona thidier. do.
yog remember?
Jti.Gmu WhatdajoftlMrwBekwaaittfaii
lwaimethitherr.^...&ell. Itwaaoif aSaUirday.
Mi^Geu. Wbatmeatii^raa'kf .« «
Seer. IcMioot tdl werywdk whatmoiith il
vaaV il wti m fAqguel ittiiiil& ;»
^rJii.Gem, How kogiBd he contiaiie there F
5MI; The ^eiee of a Ibrtnifflpt off and en. v:
r HitettJathat efidenee, my loid, thai hafme
Strndnrd. 1 am a j^Bimiai hi ni>n afa^brf
i aodkyat ftrnJiiy^e^Mrafthh uflMlj ■faST
WaUlhatMiiMaamMkttM^
iliM^Kii
hiCJ-.lLu hot Yeiy nidi mdemse: It
' I to eoofirm the other tea-
*Att. Oem. How long waa itfaefbrefrehmd
waa ixiad and eseentedi^ ean 900 t«n that ? .
ScaiU Nq. I know nothing of it.
.J^Cm/Theta swear w.Jbhnfiduaftrd.
(WUob.waadoDe.] .
•.Mlfiai. Did yoo sea Mr, Ireland «Wol-
Terfaamptonyaiidwhen-waaitylpray'yoof t *
. aunf^iM. My Ud»itt.th« year 1075» I was
tkmk bigrond aea, to 8t. Omen, to letch oref
twoyomllB^IKentlmneo thai wi« tftudeDts theca ;
attd< there I beoame acquainted with Mr. Ire*
kmd, who was then protitirator of the jesuitl at
St. Omers. And in August 1678, 1 did see"
him in Wolverhampton, upon the Sunday after
the Assainption of our Lady, which wiwtlie 15th
of A'ngust, he came to see me, and 1 saw him
there diat day.
JD. C. J. What day of the month is the As-^
aomption of our Lady ?
Stanford. That is always the 15th of Au*
gust, my lord.
Att Oen. How often did you see him there ?
Stat/tfwd. I saw hiro Sunday and Monday,
and tin that day sevennight ; I saw him every
day in that week but one, when lie went to
Litchfield.
Oaies. My lord, I desire to know bow he
comes to reiueraber that it was at that time.
L* C. J. He tells you a reason for it, because
it fell out to be upon the Sunday after the As-
sumption of our Latly, which is always the 15th
of August.
« Oatf. My lord, he says he came acquainted
Wi^Mr. IH?land at St. Omers.
X JUC. /. Yes, he says, tliat was in the year
^ 1675.
OaUs. I desire to know, my lord, whai bnsi-
neSB he had there?
L. C\ J. He tells yon, he went to feteh oyer
wo young men that were students there.
Omtu. Pray, my lord, 1 desire to know what
ceyponheisof.
£,C.J. What religioawa you off
9
loniy
late king. • y.n * n
Oslai. 1 iNifiaffai iC il wan ■
Ait. Gea. Ya^ hh. itfaX
that oawity that wan grant hmm
inrtmiiMntel id •anriMii;rlUkl.liMI
AMMpa BTon vraanBHar •.w wmmnnmai
that flumlr orna, I eanmoC IdL
bnt I wiU. am hial I M%a wilMlilS
dren* . i.* i ,j» - .. « ■ .r ■.,— ^^-fk,*
Aii. Gem. Mr.. OUa
mada him a priast» hot it
andohihhvtt^MilaoliMI
M^Gmt^Fmfi
kr^ [Which: wnidwifc}
Aii.Gem. DUjanwi
! Fowier,i»WroliinVMnlia,li UMi*^ .t%
0na|^bf4» lannl
(kie$. 1 derin ta
F
i^hmtm
AiLGmi. WhenwwiH
Mm. Jfante; i.dMfnaJri
17th of Augostat WohaitemfliMi
tfaM^dayli asynodwr^teaiiv-whananB
Ait^ Otfi. Jtew haijitfdl haaiaa Atmit • "•
Mn.FM«r. Taitfaa«7tli,wUohimilBi
daiy wadaafOHivbtalWrt I wnainliiMi'.
pany: wnry dqr m thai tuna mlam'HwM
Friday, whidi day tbay ny ha want IsiM- ,
field to the lair.
JLC. J. Is Mia. Harwell ynaranAarf'
Mrs. Fomier. Yes, my lord, idm ii,i mii
lived al'tfaat lima with: my nathar.. .
L. C. J. How do yoa uaJmr iM
Have you any toisena tbel yaa aan'ghiahib
why you remember it was then f
iilrs. fbw/sr. My bed, I ■iimnurtiidmjrf
after Mr. Irahmd'a trial, inwhieiilir. Qm
swore that he was here hi towv hetwan Im
8tb and 12th
very month that
hampton, and thereopoa I
Oates had not sworn trae, by
wiien il was.firediin.my
half a year after. 1 •
Oatci. Madam, an yaa Mrk fisnriTIi
daughter ?*^Mns. Ifawfer. Yaa»l anaorft^
Oaies, Did yoa not. know ana Mr. inmni?
Mrs. Fowier. Whidi Jannimi f
Oaies. Mr. Robert Jennisaa.
Mrs. FowUr. Yes, I do know hun.
Oates, Areyoanotar-kintobiBaF
Mrs. FamUr. Yes, hot 1 am aony laaanl
have soeh a relation. ■ •• *^^»»*
Att. Oen. Swear Mr. Giflbid. . [WUshM
done.]
&<.Gn. Didyoa^awMr.
ibrdslrin, and when, I nft^
O^fM, lavwhini Mtai.
of Anonst, that^M^.wnJbi
at Bfr. inland waa ia W4mw
STATE TRIALS, l James !!, 168 5*— /or Perjury. [1970
till Satyrday the 7tli \ aud then went awajr
irora Wol verba m jrtoii .
Otuffj, 1 de^k'e td know ^i^lmt religion ibiA
vt^oninti is of" ?
Keelit?^. I atn Bora an Cathollci God be
thanked.
Alt. Gen. Mrs. Keeling^ when did Mr. Ire-
land rctiirti agTiin, do you say, aiicr he weal
first to Woiir erhampton ?
Kteiing. It was the V^^cdiitsday seven *iiiirbt
after, fe»ir.
AH. Gen. That was the 4ih orSeptembcr,
L. C» X How Jong staid he lliere tlien f
Keelitii;* Till Sat urdoy in the furenoou.
Alt. Gen, Whither did he say he was going
tben f
Keeling, He said he went to Bellamour to
dinner.
L, C. /. Did you see him at any lime after P
Keetine. No, my lord, I &aw him no more.
An, Uen, Then swear Mr. lliohardsoR.
[Which was done.]
S0L Gen. Pray» Sir, will you give an ac*
count when yon saw Mr. Ireland , and where,
in the year i678 ?
Richardson. My brd^ 1 saw a gentleman
that I was intbrmeti was Mr. Ireland at Wol-
verhampton, at a wake j which was Monday
the igth of August.
Ait. Gen, Where did he lod^^e ?
Richardson. At .Mrs. Har weirs,
Att. Gen, What are yon, a tradesman ?
Richardson, Yea, an apoUiecary in Wulv
hampton.
L. C, J. How many days did ywi see htm ftt
Wolverhampton ?
Richardson. I saw him ont^ one day in thu
market-place.
X. C. J. Yoit did not know Mr. Ireland
bettire ?
Rivhurdson. But I was informed t hut was he.
jL. C, J. What became of that Ireland that
you were iutormed was at Wolverhampton
then 7
Rkhards'tn. I heard pr**senlly after that,
upon Mr. Oates^s Plot, he was secured and
executed.
Att. Gen, What religion are you of, pray.
Sir?
Richardson. I ara of the church of Eng-
iand-
Gates. Pray, Sir, I would ask you this que
tion.
Richardson, Aa many questions as you
plfci*se, Mr. Oates.
Gates, ^Vlio Void yon it was Mr. Ireland ?
Richttrdsoft. Mrs. flaniell.
Ofdcs. When was it she told yon it was In
tand?
Richarftsm. To the best of my remem-
branoe, it was betore be was apprehended as a
traitor.
Otites. He is uneertain when he was told so.
L. C. J- Wril!. make what advantage you
can of it by and liy-
Att. Gen, Sviear IMrs. Eleanor Gnivca.
[Which was doae.^
|i of Aufftist 1078, and he continued
M the wSi ; I saw him there every day.
H. Pmv, my lord, be pleased to ask this
ipan, wltiether he were at the Trinl of
V
bed. No, I was not m court, nor exa-
iu ft witness.
It. Were you at the Trial of tire five
ird. I was there, hut was not exammed,
D. X Was it every ihy^ say you, that
m him at Wolverhampton ?
prd. Every day.
%J, Thty say J be was one day out of
ilitchtield.
hrd. He was out of town that day, but I
fGen, Swftar Mrs. Elizabeth Giffai-d.
p was done.]
te<?n. You hear the question , did you see
mnd in ^taflfbrdshire in 1678, and when ?
ik. Gifford, Mr. Ireland came to Wol-
Ipton the tTth of Aug^ust, aod continued
ID the 26th.
i Gtn. How do you remember it ?
i Gifford, B^ a wake that was just hard
tt was at that time : and be came to my
^ouse upon the Sunday following the
^^n of onr Lady.
Did you see hrra erery day till
I?
\ Gifford. I remember I did see him
iy but two days that 1 w^s abroad at
My lord, I desire to know, whether
i examined at any of the former Iriah?
Gifford. Yes, at the five Jesuits Trial,
Wei*e you not al Ireland's Trial ?
\Giffi}rd. No, I was not.
"There was one Gifford examined
[JGeu. Swear Mrs. Elizabeth Keeling-.
Il was done.]
pev*. Did you see Mr. Ireland at Wol-
h)ton, and when f
Jm^. Yes, my lord, I dtd see BIr. Ire-
tWoI ve rhami pton.
[ben. Pray tell when it was.
W'. It was the 17th of August be came
Viistress^s house.
torn. What August?
mg, August belore the Plot
t J. Who was your mistress ?
in^. Mrs. Harwell, my lord.
I^ea. How long did he continue there ?
}jmg. He came on the Hatnrday, and f
m there till the Monday; ^Vhen I wus
^ to my mother^s burying, I left him
fcdara Dormer at dinner, and came back
^Thursday. And in his chamber I
ihim discourse, but I did not see him.
be Friday he went abi"oad, and returned
Ihat night. Upon the Saturday I saw
Id he continued there till Monday morn-
lid then he went away, and returnett on
£ ^th of September, and staid
STATE TRIALS^ i Jambs JL
M (hn. Pray, miitfeti^ did joo m0 Mr.
rrdboid at Wolf erhanipMhr ai any Unie f
. Jii*. Orsvet, Yes^ I did« my wrd.
Sol, Oen. WiMfl was it?
f JMEia.GrM0f. The fintttme was m yean
ajso in Aagvaitt it is now going on aeren yean
: Ji/. Gen. What^me in August was it f
Mm. Gravcf.'Tbefiratday wastli*20th.or
tiit|lamsorelsawliiniu|iontbed2d; fori
dined with luni, and was wittr bim alltbe af-
tafBoeB, and supped with him. UpoalheSSd
wa v^ to Litchfield together, which was
Bartholomew efe. And I saw him the 3l5th,
whidb was Sunday after. .
'' L. C. J. Are you sure it is the Irdand we
tre iMw speaking of F .
Mrs. Gratei. . They said it was the same
ilr,Jrdaiidtfaativasesecated. They called
him so.
. Xh C A Ht^f there is no great donl^ hut
only for Mr. Oates'9 satislkction.
Ait. Gem. At whose house did he lie at
Wolverhampton f ...
Mrs. Grai^. At Mrs. Harwdl's.
AiiJ Gen.' Where wasr it you supped with
' flpmyyou.?
«. Gmei. jHe.ifincd and sopped at n r^
I's house or mine.
3LC.J. Who wasthatP name him.
Mrs. Grevei. It was at my node Winfofd's.
L.CJ, Did you go afoog with, hin to
Ul^AeU. do you say, on the.tSd ?
Mrs. Graves. Yes, and to did my mude;
and at night we came back together.
Sol. Gen, What religion are you of, mis-
tress?
Mrs. Graves. I am of the church of Ensf-
Oates. My lord, I desire to ask her, how did
she know it was the same Ireland that was
tried?
Mrs. Graves. It was the same Irdand that
they said was aflerwanls executed. I know
Bo more.
Sol. Gen. Did you go bac|c with him to Mrs.
Hanveirs from Litcbtield ?
Mrs. Graves. I did to my uncle Winford's
bouse.
AU. Gen. Now we come, my lord, to ano-
ther period of time, which is from the 26th of
Jkugust, to the 29th ; and for that, we 6rst call
sir Thomas Whitcgrare, uho is a justice of the
j[>eace, and a worth V gentleman, a member of
the church of England in that county. Swear
hira. [Which was done/l
Sol. Gen. Prav, sir Tliomas, will you be
pleased to give the court an account, whether
you saw Mr. Ireland in Staffordshire 1678, and
what time it was?
Sir T. Wkitegrave. I saw Mr. Ireland upon
the 1l9th of August before the Popish Plot; it
spas upon a Thursday m the aAemoon upon
Tizhall bowting-ffreen; and I discoursed with
him : be told me be was to go home that night
with av Jamea Siamiona m Mr. Hevening
ham. They toU me aaennidi U
iSM^Wd^nmO^im, {PI
Satwday t» fiiyenlMHi^ and went tb^mti
'" lay IbOowiBg loivttda^ fiqapMi mm
ifter that, armnoor came dmiteJb
nd was aoBMed.FMt oiheim, of
Iplot of the pa^; mid my^rlf,
others Iqat wwnjskiCOti^BimiiJQ for the
that ooianty^.did reflect apoD the time tW Iny
land WIS ip f^ eomitey} and we were t bail
disturbed, beesuae he bad been at partKikc
places aimong eor naiglihoiuift, whom we kur'
tohecatboliaa.
Ati. Gen. Oaii.yoo vemcmbEf do ifay li
that one, air Thomas f .
. Sir r. WkUtgroio^ OdTj lb« 3901 T mm\m
there, airfdiseyrsed with him ; and aftcr«ii#
to me, to desire i^e tlm t
would oome up to London at his ihaL
, L.C.J. And did yo« come up, sir 'IliomtaL
8nr 2*. IFiUri^(r«se. No, I did not ; 1 hiAus
sobpania} ipd being n jtuitic^ of iK- p^^t , I
did not think fit to Iwnrm the country niii^
'^no without 0 aonhcBna.
Osfei. My lord, I desire m iumw il.iii
ndeman, fisw long be bpd heai ai|aiaii
with Mr. IidaDdr
Sfar r. ITAi/inrsso. I De?e»
X. C. J. Ho goes DO further than d» S94
Alt. Gen. No, my lordt h« 4oe» la^- ti
rear Mr. WiUion Powkr. [Wbidi
dpne.]
SqC Gesu Pmj, win you give aa
wboi yon saw^. IreteiiH and w b«rc ?
Fospfer. I saw Mr. Ireland upon the 3ftl
August 1678, in StaflbididitrCf at a imwe-n
at Etchuig-hiil. The race mms run U^
sir Heniy Gou^ and captain Chetwiod.
Sol, Uen. Did you see hhu a^ny other d^ii
that month?
Ihwier. Yes, the 19th of Augfust I mm Hi
atXixhall bowling-green
Sol, Gen. When else did you «ec bimP
Fowler. I saw htm the 1 Oih of Augun heSm
Sol. Gen. Where, at Ttathall, at m; ln^
Aston's house ?
Att. Gen. Do you remember sir IVatf
Whitegrave was upon the bowliog-gieoi lli
27th of August?
Fowler. Yes, he was, and did disosone liA
Mr. Ireland there.
L,C,J, Whatbecameof Mr. Irds^iftt^
wards?
Fowler. He wentaboot the country IsriaiK
time, my lord.
L. C. J. Was it the same Ireknd that wm
executed ?
Fowler. Yea, it was the samo.
L. C. J. You say you aaw him the IWbtf
Tizhall bowUng^freen.
Fowler, Yea, fdidao.
L. C. J. When yoa heard ho
for the plot, what did they say -^
at that tuner
FoMfler. I think bo wmrt to Mr.
ham's, or
OnUi.1
itsfaif
STATE TRIALS, 1 Jamis 11. i6&5.—for Perjury.
[12T4,
tiler. I am a RomaQ Catliolic.
. /. We ask it unly bt'cause Mr. Oates
\ to be satifitied in ihat points
Iff. Gen. Pray swear Mr,Howani. [Which
*. Gtiu What time in Aus^st 1678^ did
s^e Mr, IreUtiiJ in !!^tadord.sbirc, and
JtJfi>o'firJ. I cameotit of Shropshire upon
fth of Aiiyn^istj to the horse -rate at Etch-
Ing'-hill; and there I suw this Mr. Irektid upon
^ x 128th. J dined al oni* Mr. Herbal Aston 's
; at BelJarnore, and there 1 saw hiro a^ain.
Itt* Gen, What i>lher lime did you see him f
'iifward. Never any other time*
Mi CM. Hovf does be know it was the same
Irebnd ?
lo&^urd. I came up to town soon aHer, and
tfdd me that knew bnii, that it was the
Ireland that su tiered.
I(r* Gen. bwear Mr Drayton. [Which
I done.]
V. Gen^ Where did you see Mr. Ireland?
ration. At Etching- hill mee.
Iff. Gen, What day w;is ihal?
^raj/ton, Tliat was tht iifth of Aug^ust 1678.
iti. Gen, Wbentlid yoiiseehiui after?
Jmtfton, Tbtj next day folio wiu^f 1 ilid not
i hlra ; hut the Thiirjiday f<dlowjnor [ umw
tiitn at Tix hall, and be went bi*me with 31 r,
leveoingl^am to Aijinn ; o*ii( I saw bim on
fiday, Ik- v^aii wjiU m* iberpf ami Wfot n ti^ih-
f^ and we eatehed a *^reat pike of a varil ion^»
Itch uiiH not onlni:iry with us. \jpoti the
Ht, whicJi wa»i Haiurdiiy, my master went to
1 a hiK'k in tlie paik^ and IVIr. Ireland went
mg' with biin ; and lliey went to a little
"a^e hai^l hy, and there I parted with him,
1 did see hitn nn more that duy. Mr. Ger-
«jf Hdders1i!im was to tneel my master a
jintmg^ hut he ivas stek.aiid did not: Then
NiiTj;vVthe 1st of *ept. I was sent to see
I oi HtUersiiam, and there I saw
I :. I.
^ 1., <K J. Who was your ma>fter, pray yon ?
^J^at^ton, This lord Uerrard of Bromley^s
Gen. He wbb accused bv Dosfdale of
Plotf and dird afterwards in Newgnte,
\0*ttet. Pray ask Mr. Drayton what religion
iaof?
Urayivti, I am ft Roman Catholic.
jAfi Gen. Sirear sir Jannes Simmons.
hicli wua done.]
[SoL Gen. Uhen did you see Mr, Ireland,
Janice ?
iir X Ssmmom Upon Tiiestlay the 27tli of
^rusi 1078, I rememi>er wry well I saw Mr.
^faud at the horse- rnce at htebinnf-hill, hf -
n sir Henry Gou^h and Mr. Che* wind ;
I remember purliculailv, th:tt sir Henry
[^ug^h's horse dii»tiinctNl hnu I did tiot see
before he came to the irm ; but there we
and drank log-eiher. Atid Thm^ay the
of Auffusi^ Ifuiug' at TjxbalJ bowling-
^n^ PiU. Ireland was ibere^ and came home
liiy ItLtber IXeveQitigbaui auii uneiiuid sQme
gentlemen in the country ; aod came to Astoa^J
and staid there that tii^bt. 1 remember the nentj
day waa Paoeras Fair, and 1 went to the fair^l
and did not come boitie.
At (.Gen. What day of the montb is tba
fair usually kept ?
8ir J. Simmon $, It ifl an imconstant time {
now and then in September ; now atid tben tal
Aug'ust ; and that year we bad a suhscnptioiii
to ^et it regulated to a certain day.
L, C J. Did you see him after ?
Hir /. Simmons. My lord 1 eatmot awear id]
the Katnrday, because I cannot so well
whether I cimie back from the fair aa Friday
night ; I think ] did not.
Ati,Gtn. HsvkiM Mr. Green. [Which i
done.]
SoL Gen, Did you know Mr. Ireland P
Green. Yes^ my lord, 1 did.
Sol. Gen. When diil you se« him it) 1678 f<
Green. The 6rtii titue was Etebinj^'bil
race the 27th of August,
SoL Gen. What other days do yon re-
member ?
Green. Thursday the 29th I saw him ; I
belong to sirJame^ JSimnions, and Mr. Ire-
tatid came bonie \<ijth limi, and Kome other
gentlemen, ht Mr. Heveiuug^ham^s at Aiiton,
and was a setluig with him ou Friday the SOth
in the afternoon. And Saturday the 31ttt he
v*as a huntin|{ with Mv Gernird. Nay, more
than that I saw him drawn on the sledge, bu4
not executed ; and that was the tame man that
wa^it there at that time.
Oaies. What reUsi^ion is this gentleman of P
Green. I was ever a Roman Uatholic.
L. C. J. Pray, were tli* y a fii.hing th&t
day?
Green. In the morning he was, and they
got a trreat pike ; 1 saw I lie pike, and did eat
part of it.
At I. Gen, Swear Mr. Fallas. [Which wa«
done.]
Soi, Gen. When did you see 3Ir. Ireland,
Sir ?
Faltai. Upon the Thnrsdav after sir Henry
Gougb^srace, \ihich was Tlinralav the 29ln
of AugtistT I^Ii"" Irdandranie itiMr Mevening-
bam^s, and I looked to hi^t horse there. Upon
Friday mommjf they went a fishing, and got a
great pike ; and J did sc^ tlieni go out a sett*
ing after fiinner, he and Mr Green, with my
luily and the keeper ; and I fiaw him conte in
again : and I iUiw bitn drnik a glass of tahl«-
beer in the ball. Upon 5*alnrday morning,
which wwB the 31st of Anj^nstj they went a
hunting in Mr. Gerrard^s park, and killed a
buck ; and afterwards iiiy m filter asked bim
logo home with him again, hut he wou!d not \
for be baid he must go to Mr. Lowers at four,
and we parted at three. And I came here, and
saw him executed; hut while he was at my
ra aster's house » his horse was never out of the
jttable, hut I brought it to him.
Ait. Gen^ W hen did y ou see him eiecoied ?
Fniim. It waa the f iUt of January atter^
wards, I tbittk,
I
1
I
I
I
WS] STATBr^SIALS, i Jambs U. l6«5^IWU cflUm OtU$.
•43bl«fc Wiiali4%ioiiaMy»MrB<
Walkti I Mi frr thfldoliiunii cf Bnghail^.a
ywtetfUMkt; I always WMM.
Oatet. Pray«inylonlva8liliin»ivlMab6wa8
aoqaaiDted wuh Jiri ImBkad ?
Failoi. The first Ume was 4HkS9tliefAoT
gvsC, when he cameto mj iaQa8ter*s house.
• (M^et « That iloea aot aoase to jsy: tfani,«iiiy
lord. 1 .^, ' ^ ii
J</. Gen. Buik «oai68'¥ary dote loit ; it
reaehes to the Slst of Aogost
JL C X w Itie wiihia a ^y •eftyauyiipoii my
&/«. An. JUd rU tdl yowr loidship what is
iret more cunsiderable; this pkee is ^an -hivi-
imd and twentr miles finsi Louden :' bat -we
shall not lea?e bim there.
Oaiet. I desire to know whosesenraathets?
Fallas, Iamassrfa|it4eMs..Heirenineliam,
and Lscnrethekiaffi I -oeoie' to testier the
truth.... liias.hereSieftre, .butihen.we must
not be heard ; all the cry was against us,
Aat.ine ware ifDgnes, and most b& koocked' on
the bead.
X.C.Ji Were you here ^ any of the trials?
• FaiioL, I was at thexoundl^table, and there
i was^ great danger of being knocked on the
|Mad.
• . Qaiea, Would > they have knocked bin on the
iiead at the Gounoil-tabley does he say ?
_ FuUoM. 1 have been in the room by the coun-
cil-table, where they have cried. Knock them
dnnvhaDg them rugues ; do they come to be
wituesses against the Saviour or the World?
And they came about me there, and asked me
if* I knew any of* them, or was of their com-
pany ? And 1 was glad to say I came thither
about a suii of* law I had with a brother of
mice^HT.il thtntb v pitied me.
Sol Gen. No . wy have brought him, my
lord, every iiiif iit where he lodged from the 3d
lOf August to tiie Slst.
Jit, Gtn. And then we shall prove that he
^ent to Mr. Gerrani's at Uildersham that they
speak of; there he was the Slst and 32d
i.e. /. How Mr. Attorney, thed^d! I
doubt you will hardly be able to tell us where
be was then.
An. Gen. The 1st of September, 1 mean,
my lord. t
X C. J, Ay, we understand you very well.
Att, Gen, Swear Mr. John Proctor. [Which
was done.]
Sol. Gen, When did you see Mr. Ireland in
1678?
Proctor. I saw him the Slst of August 1678.
Sol. Gen. Where?— Proc/or. At Fulford.
Sol. Gen. At whose hoiu^ ?
Proctor. At Mr. Lowe's. '
Sol. Gen. That was the place the other wit-
jiess said Ireland told him he was to be at
four of the clock, and therefore went away
at three.
All. Gen. When did yon see him after-
wards?
Proetor. I saw him the next day^ the 1st of
S^tember.
Att. Gen.-Wk»tr
Proctor, AtasquireGernHri^
Att. Gen. HowfiHri84haifimBllr.I
t\ Bfrnetor* It iaa mile and an hslf.
• SoL Gen, Did yon see him afienian
>Prsc/or. Nat there I dhd JMt«
lAtt. Gem. What notigioeeieyoaof !
Proctor, I am a Protestant.
X. C. J. What did yw tear kecsne
Iselaad afterwards 7 .
Proctor, 1 saw him eiecnted at T^
terwards, audit watf the same man.
X. G. /. Whara did yos li¥e thta ?
Proctor. I lived at FuUbad thes. «
L. C.J. What, with Mr.LaweP-
Proctor. Yes, my kwd.
Oate$. It seems he was a aerraBt I
pist.
L. C. J. Whatthen, what of that?
Oatee. My lord, I desnay o« woaM a
whether he erar saw Icelaai'kelbra thi
August which he ipeaks of?
. Proctor. No, I did not.
L. C. J. But yoo ate suns it waati
man you saw executed Z
Proctor. Yes, I am aure of il^ ..
SoL Qen. What circumstance am
that he was the 1st of Septeaiber atM
rard's?
Proetor. I went to dinner thitbcr tb
I rode before madam Brooke.
X. C.J. Whatday of -the week wai
of September?
Proctor. It was upon a Sunday, a}
Att, Gen. Was that about Psbcr
time — Proctor, Yes, my lord, it was.
Sol. Gen, He can tell you another
stance how he comes to remember bim
Lowe's the Slst of Aug^ust.
X. C. J. Ay, by what token do you
her that he was there the Slst of Au^
Proctor, I went that day to
some money, and came home again in
ternoon ; and just as I came in, ha ca
ther. ^
Oate$. JIow does he say he knows h
the same man ?
L. C. /. He has told yon twice, he i
executed.
Gates, What religion is he of, does
X. C. J. He is a ProtesUmt.
Att. Gen. Then swear Mr. Johi
[Which was done.]
Sol. Gen. Pray do you aoQuaint tl
and tlie jury where you saw Mr. ireh
when ?
King;. I saw Mr. Ireland at Mr. G
of Hildershaui the 1st of September, tl
that the plot broke out, which was in t'
1678. There I saw him an Sunday ; ai
he staid 4^11 nifflit, .and so did I ; and m
day morning I went to Mrs. CrcNiiptoe'
I fived, and be came thither to MiltaM
as ], which is within a mile of Hra
and dined there the same day.
L.C.J. HowftrMtballhNnLeDdi
y^mf'^King. An handled and m vHi
STATE TRIALS, 1 Jambs II. l6ti.—/or Perjury.
[isrs
1 And lie i^as there at diniiery you
Ing, Yes* he waa.
'k How long was it before dinoer was
I beliere be miglii go thence &t>out
£ dock.
\ Where did he say he designed to go
B^' designed ti>^go to Boscobel thtit
X Do you remember any body eise
r. GciTard'« then when you saw hi|ii ?
Yes, Mr. Jerinan Drayton was at
tro at that time.
Piray, what I'digion is this gentletrtan
I am a Roman Galholic, Mr, Gates,
few. Pray a wear Mr. Francis Lfce.
wm done.]
M. Pray tell my lord and the jury
U WW Mr, Ireland and when,
wai a servant to Mr. Gerrard, and
isd QpOR Saturday ni^ht came to my
louse, and statd aJt nit^lit iinri all day
)r, aod went away on Monday to Mil-
f* What time and what year was it ?
i was in 1678 ; bat I am not certain
r of the month : it was on a Saturday
nnd 1 have wiln eases to pro?e I was
lat time,
L What month waa it ?
t was in Aogiist, aa 1 think, the last
I am tiot certain. And hejfl^ent on
l» Milkg^, and there tlined at IVfrs.
\*9i and from thence he went to Pan-
i thence he did go to Boscobel, anrl
ighl there.
tn. Thatwasthe 2d of September,
^» How do you know he went to these
I- was io\d 80.
My lord, I flesire tf» know hnw lonjy
was ac<{uainled with Ireland before ?
never saw jjim but at that time.
Ho^ does he know it is the same
r
Bere ts a man tiiat saw me with bim,
rresent at Ireland's execution,
'. Who is that? Proctor?
Yes, my brd,
K Then call Proctor aj^ain, [Who
igain.l Who went along with yon to
Monday ?
ly lord,* he did see me at Hildersham
HTard'a.
f. What say you, Proctor, was 'this
Q there at that time f
^ Yes, my lord, I did sec him tbere.
K Waa that the same man thnt was
wbidi you saw at Mr. Gerfaid'aP
r. Yes, It was,
K Did you dine with Mr. Ireland on
itMra, Crompton's?
fes, my lord, 1 did, and went aiWr-
th him to Pancrass, and staid there
1^ and then he went tv B^vcob^l.
Soi. Gen, There are the two days gohc
which Mr. Gates swore to, and iu which he'
was 10 posilif e that it was either the Jst or 2d
of September,
AiL Gen, Then swear Mr* Biddolpb.
[Which was done.]
SoL Ocn, Pray, Sir^ when did you see Mr,
Ireland, and where f
BUd&(ph. My lordy 1 was in Staffordshire
the latter end of August and the beginning ot
September, and I was at Mrs. Crompton^s
house, which is my aunt, the ad of September
bcbg- Monday, where I aaw Mr. Ireland, and
dined with htm that day ; and after dinner he
went with Mr, Geirard^s son, who was to gw -
to school to BofiCobeL Antl I will give your
lordship a particular circumstance that niay^
satisfy you that I am not mistaken in the time :
as I came ihrougb Northampton»hire thatsum*
mer* I was at my loi-d Cnlleo^s, and he de*
sjjW me to be at a horse-race at Ncwton-
Slade, where there is a plate always run for
upon tl)e first Thursday in 8eptember, and
that year it was the 5th of September, Now
when 1 dined at my aunt Crompton's, aho
would have had me staid all night at her house,
but I excused myself, and told her I had pro^
mised to come to my lord Cullen^s to be at ths
I'ace, ami I must nee^ls^be there before, lo be as
good as my word to my lord ; and therefore i
w«nt away to Panerass, and so on my jouniey,
otherwise I bad staid witii my atmt all night r
and I am stiiie this was Monday before thtt
horse-race,
Oaiti, My lord, this gentkinan speaks tona
year particularly. '
BiddofpK It was in IGf 8, the year before
Mr. Oatea^s Plot broke out.
AtL Gen, Now we will call Mrs. Crompton.
Swear her. [Which was done,]
SoL Gen. Pray, when did you see Blr. Ire-
land, Mrs. Crompton ?
Mn, Crrnnplmi, He was at my house at
Millage fe ^flbrdshire at dinner, the same
day that my nephew Biddolph did dine there ;
as for the Jay *>f tl*^ njonlh, I cannot so well
tell it, because when my friends dine i^ ith me,
I don't use to note down the day parti culaily ;
but it was, I remember, a pretty rf^markaote
time, for it was about Pancrass-fair. Blr,
GeiTord of Ilildei^ham came with him, asnl
Mr. jrdaad Mn^ a stranger, i asked who iie
was, and they told me it wnis Mr. Irehmd : he
never was at my honse be4ere nor after ; he
was a mere stranger to me.
L, C. X U bat dav was it, say yon f
Mrs. Crompton, It ^as tJfe same day Rkj
nephew Biddolpb dined tbefc.
L. €. J: W^ it Monday the Sd of Septem-
ber, do yon remember? .
Att, Gen, He says he was at her bouse at
Millat^e that day, anu she says it was tht samt
day he dined there. '
Mis, Crumptvn, Bvt ^ i *
particular days when !
(sxccpt I had fHRlict4«r \HrCUiio i .
bad none at this tiltte.
,
1279] STATE TRIALS^ i Jambs IL 1685.— TWoI 6f TUut (ktta, [
Pendrei. I saw him upon the 2d •
tember.
Att, Gen, Where did yoa aeehim?
Pendrel. At Boscobei at my hone
he lodged with me that night.
Sol. Gen. Id what year was it?
Pendrel. In the year 1678.
Att. Gen. Was it the September bd
plot, and before Mr. Ireland was eiecul
Pendrel. Yes, my lord, it was.
X. C. J. Did you know him bdfbre?
Pendrel. No, I did never see him be
I know of.
L. C. J. How long did he stay there
Pendrel. He staid that night and t
day, all dav, and went away the 4th q((
ber to Blads- Ladies.
Sol. Gen, Whose house is that ?
Pendrel. It is Mr. John Giffiml's.
L. C. J. Yon say you live at Bosool
you hear any thing of a letter came
house for Mr. Ireland ?
Pendrel. Not that 1 know of. my kM
was not any that I remember, ji
Att. Gen. Then swear Mrs. Pendrel
[Which «a
Sol. Gen. Pray, mistress wiU yoa
account where you saw Mr. Irelana?
Mrs. Pendrel, I baw him at Boscobi
Royal Oak ; he came there the 2ik
September.
Sol. Gen. Can you tell what year it
Mrs. Pendrel. it was the first begi
the plot.
Sol. Gen. How long did he stay the
Mrs. Pendrel. He staid Tuesd<
Wednesday he went to Blaek-Ladies
away to Wolverhampton.
Soi. Gen. We have hut one witnet
my lord, for Wednesday the 4th of Se|
aiid then we have done. Swear Mr.
Gifford. [Which was done.] When
see Mr. Ireland ?
Mr. C. Gifford. May it please your 1
I saw Mr. Ireland at my father's k
Black Lailies-
€htei. My k>rd, I desune to know whtt reli-
gion this olff gentlewoman is of?
Mrs. Cromptan. I am a Roman Catholic,
my lord.
Att. Gen. Swear Mrs. Palmer.
[Which was done.]
Sol. Gen. BIrs. Palmer, where did yon see
Mr. Ireland?
Mrs. Palmer. I was at dinner at Mrs.
Crompton*s at MillagCy where there was a
Sndeman called Mr. Irdand that did dine
ere.
L.G.J. When was it?
Mrs. Palmer. I cannot tell truly what day
it was.
L. C. J. Who was there besides yon at din«
ner that day ?
Mrs. Palmer. It is so long since, I cannot
remember.
L. C. J. Was Mr. Biddolph there?
Mrs. Palmer. Not that 1 remember, my
lord.
L. C. J. What do you bring her for, Mr.
Attorney?
Att. uen. She dined there that day it seems ;
but if she cannot remember it, I cannot help it.
L.C.J. But these kmd of witnesses do but
slack your proof.
Sol. Gen. My lord, I think we do over-do
our business indeed.
Att. Gen. We have one more witness to this
voint, and that is, Mrs. Mary Holmes ; swear
ner. [Which was done.] Where did you see
Mr. Ireland in the year 1678 ?
Mrs. Holma. I saw him at Miilage, my
lord.
L.C.J. When?
Mrs. Holmes. The first, or the beginning of
September, 1 am sure.
Sol. Gen. What day of the week was it?
Mrs. Holmes. Monday.
L. C. J. You have proof enough of this,
Mr. Attorney General.
Alt. Gen. Truly, 1 think so, my lord.
Sol. Gen. Pray swear Mrs. Esther Gifford.
[Which was done.] Mrs. Gifford, when did
you see Mr. Ireland ?
Mrs. Gifford. Upon the 2d of September
1678, I saw Mr. Ireland above a hundred miles
from this place.
Sol. Gen. Where?
Mrs. Gifford. At Pancrass.
Sol. Gen. What time of the day was it ?
Mrs. Gifford. In the afternoon about four or
five o'clock.
Sol. Gen. Did he stay there all night ?
Mrs. Gifford. I cannot tell indeed.
Att. Gen. Swear Mr. Pendrel. ^
[Which was done.]
Sol. Gen. Now, my lord, we are come to
the Sd of September in the evening; we shall
prove where be was that uight and the 3d, and
theu we shall return to the 4th of September,
when Mrs. Harwell swears he came back to
^Yolverhampton.
Mr. Mantes. Who^ did you sta Mr. Ireland,
ttr.Pciidrtir
Gates. My lord, I would ask Mrs. I
question before she goes : whether sb<
a witness at the five Jesuits Trial ?
Mrs. Pendrel. i was in court, 1
would not suflfer me to swear.
Gates. Did she not give evidence tb
L. C. J. She was examined, but si
not be sworn, because she came t<
against the king in a capital cause.
^ Att. Gen. Prav, what say you, Mr.
Gifford ?
C. Gifford. My lord, I say I saw ]
land at my father's house at Black-La<
he staid there an hour and an half, i
through Chillington, and said he wou
Wolverhampton.
Att. Gen. What day of the months
C. Gifford. 1 am morally certain it
4th of September, and so ne went ts
hampton, as I am informed. He c«i
house to see a lady that was there
fiBlJ
STATE TRIALS, i James II. le^S.-^fifr Prtjury.
[1288
I.C./. Wbatladywasit?
C. Gifford, It was one madam Wells.
Att. Gen, Thus, my lord, we have lodpfed
the 4tb of September at Wolverhampton,
I delayed so Inntf, when it appears by the evi-
deuce which hus hern pro<hiceil, thut the wit-
nesses to prove it were known six years since, as
much as thry are now ; and tlu :-t> is no colour
of evidence offered, that any new fa-t has been
lately discovered whirh was not then i:-.-< "vu.
, There is no reason, my lord, tliat is assijpie^,
I or can be assif^fMl for this delay, ^but only that
the hardship mtp^ht be the gfreater uiion me :
^ day in that time,* but only the 8th of ; for now it isdiflicult, if not inipossible for me
Icptember, and lor that we must leave it to the ' to maintain the evidence I then t^ave, so many
ury. We have proved that he came away persons lieing^ since dead, or gone l)eyond the
n Mrs. HarwelPs the 7th, and he said he | seas, and many thinp^s that were fresh then,
|.to go to Tixball ; and the 9th he did go are now grown out of m«>mory ; and I be^
wbm Mra. Harwell says, he returned to her ;
tmd so, my lord, we have given an account
vbere he was from the 3d of August to the
!^ of September. ,
Soi. Gen. We have proved where he was
nm Tixhall in sir John Southcoat's company, ' your favour to insist u|)on this, and 1 think it
(■d came to London the 14th. ] cannot he denicil uie. If such a practice as
L. C. J. Well, what say you to it, Mr.
lites?
Oaies. Has Mr. Attorney done bis evidence,
■yloitl?
Att. Gen. We shall call no more witnesses,
nlesB you go about to support your own credit,
lad then we have other witnesses to call.
Oatet. I do not Talue any witnesses you can
mog against my credit.
Ait, Gen. Well, for the present, we do not
Ingn to csall any more witnesses.
L. C. J. Then let us hear what t(>u sa}' to it.
Ottfs. My lord, here is an indictment ex-
'^^"^ agmmst roe, which sets forth, that I
swear at Mr. Ireland's Trial, that Mr.
Eniand was in town the Ist and 3d of Sep-
caSer; and it sets forth, that in truth ne
in town : and likewise it sets forth, that
at the trial of the five Jesuits, that Mr.
took his leave of me and otiicrs here
■ town at his lodging in Russel- street, between
ke 8th and 12th of August : whereas the per-
Kiy diera assigned, is this. That he did not take
ii MaTe of me, or any other person, l>etwixt
ke 8lh and 12th of August, at his lodginsr in
laswll-Street. Now, my lord, I was not the
wij witness of Mr. Ireland's being in town in
he month «f August, nor the only witness of
rii being in town, about that time in Hep-
■■ber. My lord, my prosecutors hnve en-
lawmired to maintain' this charge against me
bw: the first thing they have gone upon, as
hr as I can remember in the indictment, is as
• die Ist or 2d of September, or raiher, they
Are endeavoured to prove l>oth under one.
loir, in answer to all this evidrnre, my lord,
be first thing I sluiU offer to ytdir lorilnhip's
SMideration, and the consideration of tin 'jury,
I the great hardship I lie under, afU*r six yeaW
■M, to be pot to disprove what the counsel
ere bare now offered against rae. Mv Ir^nl, I
harnj first, that this indictment, whicfi is now
Mm trial, is founded upon the trial of Ireland,
hAck was the 17th of December 1678, at the
Id-Beilej, and it is now six years after that
"'■— ice of mine was deliverecl. A second
is, that the indictment in found by special
liseioa, es appears by the indictment it- J
ilf. Now, I must fecommend to the consi-
this be admitted, no witness is safe in giving
his testimony against any ct)ns|iirators what-
soever. For, my lord, 1 must desire leave to
ofler another thing to your consideration, be-
fore I speak to the particular evidence, and
that is this : That here is nothing but a bare
point of time upon which this ]«erjury is as-
signed ; when the sul»stance of tkie testimony
that I gave at the trials cf Mr. Ireland and the
rest, about.the Popish Plot, is not assigned as
any peijurv at all ; it is only a circmnstance
of time fkiui place. And, my lonl, J shall offer
this to your further consideration, that Ireland
was convicted for a treasonable resolution to
munler the late king, and not for being in town
in August or Septemlier 1G71I, or elsewhere ;
and he was not convicted for his being in
his chamber in Knssel- street, and taking
his leave there in August, which is one
matter of the perjury now assigned. Next,
my lord, 'tis hard and unri-asonuble to tie up
witnesses that come to discover plots and con-
spiracies, to speak positively as to circumstance
of time and place, and every little punctilio in
their evidence, to bind them up to such nice-
ties in the delivery of their testimonies, as to
time and place. It is usual to .s|)eak with
latitude as to such kind of things, and 'tis pro-
bably my evidence which is now in question,
was not that Ireland was the Ist or id of Sep-
tember positively here in town ; but, my loitl,
I did, I believe, give myself a latitude, and
would not confine myself to cither the 1st or
2d, 5th, 6th, 7th, or iiU ; hut my lord, that he
was in September then*, (am {tositive. I
mvM therefore l»eg your lordship's and the
court's opinion, whether that .Air. Foster diti
prove that 1 wps positive an<l prcrise to the
days of the 1st and 'jd of ScntemlK.'r l(i78l'
L. C. J. In my opinion .i '^ a pinin evi-
dence that you did s\^car ^uisitivcl\ ■ those
two days ; 'and you spoke to a cinMinistaiice
very material in 'your evidence, tliat either the
1st or 2d of Scpt<'ml»er you IiimI 5i)x. of him in
town here : now that circunistnnre of his kind-
ness to you, was not a circuuisiance either of
time or place.
Otttr*. Then, my lord, I shull iH'gin with
my proofs : but, my lonL I desire I may have
■feUouofyonr lordship and this iury, why tfie ■ free liberty to minif my business ; for here is a
pOMOUfioM of Ibje prttended perjory has 'been I g^tleman behind me tbat will not let me be
VOU S. I 4 N
»
I
I
I
1S83] STATE TRIALS, 1 Jambs 1L l685,— 7Wrfo/7»«» Otie$,
of it), »aid, What arts tb^ hm
V, wo ^kajhtn
\
at <|uiel, bdt is dther mcddtixig wilh nic or mj
pttpers,
Z, C. /. Who U it ? Let me know him,
ajitl f will take c«rc I4> make him quiet, or set
Lim further off. You, ^eollemen, that are at
tlie bur should kuow better, ooe wuuld think :
he must have liberty to moke his own defence ;
und if he c«m|daiti8 and lets me know who
tiieddles w ith him, they had better do some-
what elue.
Oatea, My lord» the first thinfif that I ofler*
is^ that Ireland was eoovided of treasou, and
ifor that you haTe the Record.
£, C/X it is atluH'ed of all lide*, that Ire
lind was conricted and attainted of treason.
Gates, Then» my lord, tbe princiiial de-
fence which, as near m I can renienilir, Mr,
Jreland made at hi» trial, wa* ao endeavour to
prove that he was not in town between the 8th
and 12lh of August, nor the ist and ?d days
0f Heptembcr, which are the jwints now in
i«aue ; and be then produced one Mr. Gi fiord,
and hia sister and motlier ; and 15 or 16 wit*
ne&m were prodnmHl at Mr Whitebread's
tnal, of whicfi there is auoiher record, tJkat
being Hix months afler Air. Ireland waa tried :
there Mr, Whiteliread produces several wit-
nesHs^ Mr. Gifford, 1 say, and «>evi ral othcra,
I think, to tbf number of 16, winch were to
prove In^land's beihj^ out of town iu these
times that these witoeases apeak of. Now,
my lord, all those several witnesKen \}e\n^ pro-
dacefl to prove Ireland then out of town, die
very pcii lit that is now in issue, was then ao;
aiitf ootvb'iih^tandm^' all those witnesses, the
jurors who tried Mr. Ireland, and the jurors
who tried Mr Whitebread and the othir four
jettuitjf, fnutid them (fuilty ; thou^^h they en-
deavoured nith all their force iiuufT^ioaye iu
oppose my testitnony, and it was lell to the
coofiideratton of l!ie jury whut their witneases
had said. If your lordship pleasea to rcniein-
ber, tny lord chief justice Hcrofga did observe
to the jur^, that the cvidtmcc oi the prisoner at
the bar did consist only in punctilios of time ;
which, aa near as I can reujember what he
said, he called a nicety of time ; and in \V bite-
bread's trial he was plpa^ed to call it catehio«f
in point of time. And it was obacnreil at Ire*
land's trial, that his defence waa so i^eak, that
my lord chief justice Scrog^, upon the iii-
le^ty of Bed1<»e*s evidoncL* and mine, uses
tbiae words to tlie jury {though he ihtn en-
deavoured to do what tfie^ witnesses do now) ;
It is m^Mit plain the Hot is discovered, aod that
by these men, and ibai it is a Plot, and a vil-
ifjDOUB one. Which shews not only tb^ Jull-
ness and saiisfact(ji-t)ies« of our pniut tkiai ive
f^rayo, but does uUo take notice of the hitle
ahif>« antl catch ini( tricks he made use of to
prove himself out of town ; winch would not
weigh with the cuurt. Therelin-e, I observe,
it lit but the iiaiue objei rion that th«n was made,
auid is not a new one oow. And my lord chief
justice that then wus« speakingf of that proof
Ip brought (which the court beard wtih pa-
^f but could casilji se<£ Ihroot^b the vauity
of it), said, What arts tb^ b«f<t«f
this, I know n
their learning i i
rcli^on too. A\\ tiiu» ls wneU
those tliat were by, mull beud tbil tsml. Mi
thou(;h Ireland kliuureij U» ilimronre me is (In
L j PL u instance of titiie^ y«t siiLf the eooitAt
juslity the evidence that Mr. Hcdkn? &n4tts«
self had ipveii. AkmI the c^ r^B
said, 1 leave it to yon to ooti^^i ^nm
bare not as touch eviiWoce from the6c tuo cai
as can be expected in a case ot this
And whether l^lr. Osites be not ralbsi
by the testim'niy offered nmt&st biro,
credited ? Tliis'w aet after mm ple« wai
and considered : and I mttsL furthet
^our lordship, that thoo^ Mr
false witnesses pressed £i» matter
could then, and orjrr ' •*,- -nurt lo
yet wbeu the jury bi vheir
found him gudty» th^ <..»jvi justice
the satisfaction of the court lu
Vou have done, ^ettUeiuca, Like t^
subjects and very good cliriiMsta»:
say, like vrr\ n-ood )*rotcstaata
Ifood ma) 4jO masses do them,
my lord," ise t»l* Mr. IrdauU, H
trial ; and the same (mini of bill bcistf «Ai
town was again managed befbro m si
at tlie Trial <4 the Viwe J equity ; bol
saw the design of the |»opi?iih pam 1»
ihecvidf'Dceyive© ot the Plot; but
looked upon it otdy as a trick. *^
chiff justice Scroggft, ilk sumoBiiMr
«lcnce at tlukt trial, says, THtjr £1
Mr. Oates, itkaaaiitg tiiys^f; lie
have been Oidr Sj^'ut,* and wbibi
^t had
baf«(
i reryi
hul no«i
,.iu..i.>h but if heh"»
>d man, 1.
lordship p!
of the Fi^e Jct*iau,
prove Ireland out ot t
iti the same charite (>
did lake n«»ticft tlial
at raiehing iu a potni ot uiuti
thiit iik a thiug tlmt tio man cati
his memory withal ; and tbrr8l«)t« bf
there persuade the jtu'y, that tbat shiMll fi
be ton strictly tlie measure of ibcir jil%Wii
af)oul Unitli and fidsehood, Iw tbe wMk^d
seven or eight days: for, -'*** **'^' to tbe jayt
examine ycmrsdves how -> dmy ym
do miitake thiols that h . . ^. ... traaiacB^
halt a year a^o, urul err m p^'iat ni IBKtk
taking one week fur aniitber, aitd oae WlA
fur uuutbtar ; and theiolWre yutt «ro Mt ^
Uy tuo great a wrisT^it upon thr poiui t/
time. Now, if loo ^i
not lo bv hiid upon a
4'bar^ that is now brou£;tii '^^^tliIij* t^^ ^ ^
of weijjbt Hi all. And besMfo% mtf MU ^
ought to b ' ' r Ibis wcri^ tb» f«i
objection i nswen^ ii
be an obje^uM ,\i tbecssrtdd
olMisrveatihe ^f ibe
STATE TRIALS, 1 James U. l6S5.— /or Ptrjary.
[188*.
tliey nia<1e their Aeieace aboot the tmcer-
oi A pi>iiit of time, i%krdi xvas ni> iJefeo<:c
so ttiatf my i<»rti, the whole course uf
ptea is thin : 'I'is a hard case for a man,
«jjc yefirSf to be indictctl tbr a oiroiiiustaitce
I will first Q&ev the teiitiTTumv of one
that is dead, and that i!> Mr.'Uedloe,
It his death conftimed all that he had
n of the Popish Plot to be tme.aivi uttirmed
he had ratlier spoken iess than the trtiUi,
more; aod for that I desire that my Loi-d
'pear may be catled, who took his dying
C. J. As for that, Mr. Gates, it is a ih'mg
well known to Ihe world, and pajlienlariy
worthy geotleraan ihiit sits by vou,
iitin^ to Mr. North] that Mr, Beilloe, when
^was Mck, did make some such protestation.
t. Then» my lord, I desire I hat Mr.
may bt $worn, to give an aeeoniil,
(r. Hedloe testified at irehiid'^ Trial.
Then Mr* Blaney was sworn.
atts, Mr, BSaney, pray will you see in
Notes of Ireland's Trial, whether Mr,
i did not sweiir that iMr. Ireland was tu
4he latter end of August 1678, or the
'''" I of September ?
ane^. Whereabouts in ihe trial is it^
4e$, It is in the printed trial, folio 4 L
Blantt^, My lord, I do find these words
' notes, that Mr. Bedlne should say, aboui
Iter end of Auj^'ust, or the bei^iiining of
embeTf but I believe tt was the latter end
_usl, Mr, Irt-danrl was ai Harcouri*s
abeft and heiuij a?»ked the question by my
chief justice Scroj^^ie^s, Whether he sai'd
*ively, It was the latter end of August ; he
It was in August, he eouh! not be positive
tda^, but be diougfht the latter end.
''C.J. 'Tis very well known too, that
; did swear treiantl was in town the latter
August, or he^innin;? ol September ;
Itocontntn it upon Mr. frpland's denial^
I sworn he was in town the Ist or 8d of
ptembcr ; and g-ave you %0m* that was the
^ sion of vour oath.
Til en, my lord, I desfre to call some
I to te<stifv to the Deposition thai was
I of Mr. Jetmison, about Irdand^a being
^town- *
, J, When was that I>ep>sitjon taken,
! whom ?
It was taken in the year 1679, by
|£dmund Warcup.
C, J. But we cannot admit that in evi.
I unless?; the king's eounsel will consent.
es. My lord, 1 will then produce what
Iswore at another trial.
. C, J. Why, where is he? Is he dead P
7aUi, My lord, it has cost a great deal of
ney to search him out ; but I eauuot any
t meet with him, and that makes my case
I the hardf^rthat I cannot, when 1 ba^'e
* See tqL 6, p. 1^93.
done all that man can do to gfet my witneatail
tii^etiier. I sent iu the depth of winter fof ]
hira> when I thought my trial would liav«j
come on before ; but i could uev^r hear of birr
L. C. J. We cannot help tliat.
OaUs. Will what he said at any other trial
Ikt evidence hei** ?
L, C, J. IxK^k you, though in strictneis,
unless the pavty he dead, we do not use io
arlinit of any such evidence ; yet if you can
pjo> c any thing he swuie at any other trials
we ^vill iuthilge you so far.
Oatts. ^lavc'yoii the Record of sir Gcorgiil
Wakeman^s Trial there^ sir Samuel Astry ? . J
Alt. Gen. Here it in; if Mr Gates ham]
any us*.' for it, we will lend it to him.
jL, C-X Put it in; and now prove what]
you can, what Jenntson swore at that trial.
Gates, Mr. Blaney, have you your Notail
of sir Cjeorf^ Wukeraan^s trial heic ? ', J
Mr Blaney. No, Sir, the ticket of yourl
subpcena did only mention Ireknd., Wnitd«j
bread| and Lan;^horn's trials. But I did for«i
rnerly upon atj^»ther occasion look lor the trial!
of sir (jeoru^c Wuktmanj hut could ooi fuid H]
among- all iny notc'S.
Oatci, Sir, can you remember then wfiat '
Jennison swore at that trial, aixiut Iretand^s
being hore in town i*
Mr. Bianci/, Truly » ray lord, I can never |
trust my memory at all when I take notes ; i
and it is now so long' since tliat trial^ that I {
dare not undertake to say I remember aaf \
particulars of it. J
L. C\ X He says ttis m long since, that I
he cannot reoiember any thinir* But there i* (
sir Edmund Warenp now ; is he sworn.
Crtftr. Yes, my lord.
L. C. X What' do you ask him then ?
Gates, i would desire to eicamine sir Ed* I
mtmd Warcup, my lord, about the deposition 1
of Jenni^n that ht^ took.
X L\ X But we tell you that cannot be ad- I
mitted as Evidence, without they will couseni j
to it on the other side.
Oaies. My h)rd, he proves Mr. Ireland 1
here the ll»tb of August, and that contradict*
these witnesses.
L, C. X if they will admit it, well
good ; else we cannot do it.
AU, Gen. My lord, we will lie so fair]
with Mr. Oates, if he will admit Mr. Jen*
nison's letter, that is under his hand, whereia 1
he does own that he was mistaken in his whole j
Evidence abiiut that matter, we will consent i
his deposition be read*
Just. Withins. if he will not consent to that, I
therein no reason you should consent to the {
other, Mr» Attorney.
X. C. X Look' you, Mr. Oates, Mr At- I
torney make^ you this ofler ; you desire to i
have Mr, Jennisou^s dcpoisitions read, whicH]
e^annot be done without their consent ; they tell |
you they will consent, i* you n dl let iliem |
prove wliAt he has uwued since 4bc»ut that busi«
Oata. ifylord, I will ooiiiciiit witkidl aaf J
1IB7J STATE TBIALS^ i Jamm lb iSkS^TrU^TtUuiOiim,
kmrt; let them read ny tetter
L.C.J. Well, doilQQbolhMlei bjeo^
wmAi wbA DOW, BIr. Oetea, do yoa-prodnoe his
Oslei, Pnty, eir Edimiiid Waroo|H will
joa pleue to gfife the Court aii aooottnt whst
depondoa Mr. Jenliisoii made Iwfore yoo,
mot IrelaiMl'a heing hi town in A^gfuA 1678 f
'9ir £. Wmrcup. If my lord
MtlwIO.
L, C, /. Aji you mull answer hisqi
fifir JE. Wttrcup. This Mr. Jenoison did
one mfbrmaiioD -before m^, and aocordii^ to
Ae diity that was iocombeiit open me, 1 de-
lirered It in to the luof and council, and there
itlMlainerersiDoe; tor me to remember the
particnhreofit, isiropoanble.
X. C./. Have you his. examination here,
Mr. Oates f If you hft?e, shew it him.
E. Wurcup. If I see my hand to it,
: i( was sworn before me, I can say
iittoit.
€hte$. My lord, he says he defirered it in
to .the cooDcil ; but it is printed. '
Ih C. J. That is bo evid^ioe, man.
i Sir £. Wmtcub, I cansay nothmgtott, mi«
kss I mm it under my own band.
Oateg. Tbatis tmpossibie for me to haTe,
my lord.
X.C.J. Icannottdlhowtohclpit
flirJE. Wttreup,, Yon hsTe no moretosay
to me, Sir, iiare y ou f
Oaies. No, Sir, I hare not Prey call
Sareb Batten.
Att. Oen, Is that the same that was Sarah
Paine ?
Oates. I think so, Sir ; I am not sure it is
she, till she come hitber.
Cryer, Here is Sarah Batten.
Oatet. Pray swear her, and call Sir Tho-
mas Doleman. [Which was done]. But Sir
Thpmas Doleman did not appear.
Oatei. Pray was not your name Sarah
Paine?
Batten* My lord, I desire my charges be-
fore I 8|>eak.
L, C. /. What is your name, good woman.
Batten. My name is Sarah Batty.
Oates. Was not your name Sarali Paine,once.
Batttf. No, My maiden- name was Sarah
Bdmunds.
. Oate$. Was not you a witness at the trial of
Mr. Ireland? Batty. No, Sir.
Oatts, Did not you live with lord Arling-
ton?—Ba^/ v. No, Sir.
Oalet. Then I have been at all this charge for
nothing. Are you sure your name was not
Sarah Paine?
Baity, No, indeed. Sir.
Ofi/rs. They told me that she lired at Ux-
briilge, and liiitlier I sent.
Bntty. I do live at Uxbridge, Sir.
Oati'i. Upon your oath, were you a wit-
i ar any ot the trials, or no ?
Butty, No, my lord, I was not
Oslo.. Then IhAfn wjiu^^mf^utm.
calir-
• OMci. WehareUooradaBwia
her not, and
imaginable)'
hcrlmt H sesBS tt is Aota^
JLC./. WeoMMthal^it.
BMy. Ihope,myloffiyM«l<
my chaijgcs w eomm^ ap hnifr.
Ostai. IwiHiakBeareoftha^i
£.e.J. WbodoywcsH-M^
Oslei; Pnyealldr.C]
Cryer. He is not baipo.
Oaia. Prey €all Mr, Bmsifnl, aqr -1
Mr. ""
I onnnot hare her here.
. L.aJ. Thntwn4
Mr. Attam^ willi
the other is an eUn
4)mim. Yonaeebjmyl
my hMd, that I hate donawliail
btfont
L.C.J. WbatM^yto, Mr.
yoQ consent P
Ait. Gca. No, my lard, kkM
that we oannoreonaent to it. -
Oateg. Prey oatt Mr^ Bvoifsl
Vanghan.
(>yer. They do neither of
Oilrt. ThenlmMllswthel
X. C.V. BafeyoQ^
' Ostef. No» my lord, ^
mcdutdy.
L,C.J, Take y bur own time.
Oatea, I desire sirMichafd Whaitan Mf
be called. — Cryer. He is not here. \
Oate$, Pre^f call Mr. Charles Chetwisi
Cryer. He is not here. \
Oates, Pray call Mr. Robert Bowes.
Cryer, He is not here.
Oates, Prey call Mr. John Sa?aie. I
Cryer. He is not here. ^ !
Oatet, My lord, I baveserredaUthmtnii ;
subucena ; and if they will not oome^ I cn>
not lielp it.
X. C, J, Nor we neither.
Oates, Mr. Jenoison was osed as a wiMS
in the trial of sir Geocge Wakemnn, aai m
was Mr. Bowes, and Mr. Bornet, who nai
S reduced to prove the circomstaooe of Mr.
ennison's evidence: but, my lord, sacs I
cannot have ihe benefit of his eyidenes^ sir
of Sarah Paine's, I most only sun up all
i have to say in two or three words. My M^
j besides that what I did deKrer in e? idenee at
those trials, I gave in upon oalh ; yon hsss
Mr. Bedloe's evidence at the trial of Iiilmi,
testified by Blr. Blaney : and the 1
bi/n as a dying man, giren in to my now I
keeper, wherem he arerrcd, that what hshsi
spoken of the ptot, was *nll tnw. Aai jm
hear that he swore, Mr. Ir^mdaMi lHi»'
town in Angost, and so did
and I think opoB fl^yaalf tt
to kata MMkifMsCifi^^i
n
STATE TRrALS, ! James tl. l$$5.^/ar Perjury.
Iqties^on, af\er vrittiesfies are dead, or gone
\ui' tl>e way. A% tbr Mr. Jeiiniso^, lits
^wnis ibrnierly niiid(> use (»f ; and his
was ainiroved of too, as is well known
til at sat judges ii]>oti the late viscount
arti^ But i\m h that, my tord, L inii^t
I sa.y for myself, that a8 1 ho|>e to aee the
► ©f satlvatiou'in aiiolher world, whateirer i
i s^vc»i-« alKkut Mr. Ireland's hein^ here in
l>ot%%'ixt the tith and 12th of Auf^usl
, 4Ai:i€l in the beg'tnnint^ of 8fptemher, is
, aa» I shall answer it Wtbre iUn\ another
^iicl, my Uiid^ as to llic uvidenee this day
fKt. ag^aiiist mt>, I tiesire you ivunld hiit
tljuui^h th«»L tliere are many of those
s, yet a great (lart of them do not
i^|» lotlieBth or J 2th ijf Au|fust : And I
3fOor lorthhiji, will remember and re-
^ %o the joi-y, what liule credit those of
D 1:1 ^d that came lo ttjilify in the behalf of
Vrelaiid at his trial, and at the Five Jesuits
of which tbeiti are two reoords beiore
^«d they do firsi justify this, that Ireland
^ iVie rest of thein were gudty ot what they
'^ 'accused of ; and then, that these wit-
^s did ijot testily the truth,
^feiides tliese two trials, my lortl, you have
^ wird verdict, and that is at the trial of Mr.
^^lujrn t now the whole Popiijih I*bt al-
moin was lairl Ibrih in those three trials ; and,
rj'y lord, I believe verily I am the ti»-stprece*
I2f°* **> all England, of any one's being indict^
" l)er)iiry, that was a witness for the king in
ia<^]»e, as this, after sixyear!<itimeeU|i4iM| ;
ifter f enlict upon venhc«, and judginent and
«iectition ti[mn these ?erdicts; and wln^u no new
Oibjrctioi] is now offered , hut what was then start-
no new circumstance occurs now, hut
I as forcible then, except it be the change
' the seafiou. And I desire it may be con-
ydeiT«l, when all the judges of England were
nmmis'iioners of Djtr and Terminer at those
als, (hes^ matters were fully discussed and
siMited ; and then liwy did look ujion all the
jjections as fully answerPil and confutt-d.
My lord, I amconrtdent if I had been a wit-
ness in any other c*au^, than of a oonsptrmcy
^f the Papists, I might have had fairer Quarter
]«an 1 have now ; aod 1 do verilv believe, that
L this rate it is more safe for IPapists to be
akitors, than for any Protestant to disoof er a
»i9h Plot.
Lord, and Gentleman of the Jury, I
cb you to take my ca&e in your serious
dderution, as to the hardship of it; and
^Dce all my witnesses are in places unknown
tliey are sucb as, ciusMleriii^ the times,
-i not appetir, some of thciQ bang lawyers,
y under tlar they shall fmre the worse in
practice ; and others being iiersons that
k1 ii^ion the law, and think they shall he
ooked ill upon, as I am now looked upon wtth
I Kord eye by the Popish Party and their a^j-
enli : yet I hope, you that are sworn to do
itice^ wilt not let mc be ruined by a number
^C false witnesses, by the evidenc^i of fpajpjils
t are |iartii£». . Foir if youf WrcUhip §mm
to consider that Vote of the Lords House«
which is a court of Record, wherein they do
declart% th:it they are fully saltMtied by
the proofs they have heard, that there then
was, and for divers years last past had been a
horrid and treasonable plot and consniracy,
contrived and carried on by those of the Popish
religion, for the murdering of his majesty**
sacred person, and for subverting the Proias-
iant religion, and the ancient and established
government of this kingdom ; which vote of
parliament, my lord, does make the papists to
be all piirtifts in this case ; and whem they are
parties 1 hope they i«hnll not be admitted as
evidence, or at least not be believed ; because
there is a turn to be served by them against
me, and a revenge they are resolved to take
upon me ; for they have hopes now of bring-
ing in iheir religion, and are to welcome that
in with my ruin ; and this is the cause-of thii
prosecution. Their eyes do see now what
their hearts so long desired, that is, the death
of a great man, who died hut lately, and against
whose life they had conspired so ot\en, and so
long. My lord, if this had beeti the first con-
spiracy that ever the papists were g^ty of,
there might have lieen #ome more scruple atid
objection in the case : but if you gaist your
eyes upon Campian, auti others in (jueen Eli-
zabeth's time ; of Garnet, and the Powder-
Jeimits in king James's time ; and the de^igna
ol'ihe PontHh party in the time of the late king
Charles the first, dittcovered to the archbishop
of Canterbury: if these things do pass for
truth, and there is no avertnent against so
many records as we have of thoir conspiraciei,
then my discoTery is no such improbable a
tiling ; and I hope then the gentlemen of the
jury will take it into their considerations, whff
they are that are witnesses in thi$ case ; men
whose very religion is rebi*!lion, and whose
principle and practices ate pernicious to the
goTernmentf and thereby they are lo be looked
U[Mjn as dangerous per^fins in church and state.
But, my lord, if the letters of'ColtMnan bu tvell
Considered, they will jutttify me. That he
corresponded with Le Chai&c the French kiug'a
confe&tior, for the promoting of Popery in Eng-
land, is notorious to all mankind that hay(»
either read or heanl that trial : your lordivhip
was of comi»e( for the king m llwt case, and
heard how it was opened, and plainly proved
upon him. And when his letters have been
made so public, and proved under hiM uwq
band I nay, and confeaaed by btmselt' ; t think
no man will doubt 4»at thai mysl hu a pUiii
proof of ttie nkit, anfl enough to vindicate me.
My lont, 1 have one word more, and then f
have done, and ieavti it tu your lordship, and
the jury. >lv lord, as they would now liing;
tlie Popisli ^Uti upon inc, so there is an evi*
dent di-sigt] to Hnig the murder of Ctodfrey
u|KHi a PruCevtant Peer ; atid beeautu an In-
dictfDQiilwaa, upon the tesliinoiiy ol*ihr traitor
FfUharri>, against that noble lord, thry liaie
r«K}lvcd to have profligak. vilUjiis t#» ukc hta
Bib ior that murdor ; lUatii apimrval | and at»
I
I
-'!rH»
lidi j STATE Till AlA 1 1 a H ks IL l6$S.^Trial ^ l^iif Oifa, [H
llicy ft^il! ijo on step Uv step, if tber be let
floats ; aiii) lliink at )eti«;r*ili to ivlpe tbcir inoiiths
wiih >iolotnon*s t*horc» and sav* they have
iJoioe no mischief. My lord, 1 leaTe these
tiluigs to the cmjflitlerfttion d' the court qimI
i«ry : I wtU not iletain you any lonjyer. 1
iiare Cf41ed whitt witaejiseei J coukl |fcH ; but
tUcdj««ARri>4tf time has ruade it impossihle for
lui o»r hftre now, that dia give evi*
<ipi nntlcr before,
Mj ioni, t have one faTotir to beg" of tlie
isourt; I had but a bad night last uight, ami
am now ID g^rcat pain ; 1 desire that you would
l^ttiit me une request, that t may hate couii*
•el aligned me, to ari^ue the errors in yea-
ierda^'a ludictmeol : my lord, I am but a
poor man, and canuot be at the chai'«^e of feeing^
OOUQiel.
X, C. X We did Msig^n you counsel before,
you may have who you will Jbr coiinsel.
O^Us, Will your fordsihip be pletfltd to do
ine the favour to let nie have some time to
prepare and instruct counsel ?
L. C. J. Ay, what time wouhl you have ?
Oates. A week's time, if your lordship please.
L. C. X Give him till this day seven- night,
tiicre may be no hurt in that,
Ouf «., Till Monday <?ame iseven-oight, if
your lordjchip pleasei let me have.
L. C J. No, no, we cannot do that ; we
give you a week*s time, ivhkch is more tlian
oirdinary : for by the rules of the court there
are hut four days allow ed, and those would be
out Monday or Tuesday.
Otttes. I'thank your lordship for that time
you have given me ; bnt I hope you will be
pleaaod to Mke the parficulara f have men-
tioned into ^our consideration ; and I desire I
may have liberty to go home, becanse [ am
not well.
L, C* /- Ay, you may go, if yoa will.
Sol, Gin, May it idcase your binkhip,, and
you, gentlemen of the jury, the question llmt
you ore to try* is a perjury, which is charged
on the defendant Tihis Gates, for sweoringf
that WiUiaio Ireland w;is in town upon the first
Of second of Stiptembt^r 1678. And 1ikcwi#e,
ibr sivearinjr, that be look hi^ leave of him at
kb chamber in ftussfll- street, between the
€ightband twelAh of Au^cnst I67a. And we
do aaaipi the f»trjiiry in Wth tliosc points, that
be 19 forsworn in li*i(h ; and the evidence of
that perjury is, that it is impos!«it)le to h^ true
what Gates did swear, hecanse Blr Ireland
Was not in town between the ei^-lith and twelfth
of August, nor the tir^i or second of 8eptembpr.
Oentlemen, you have heard the evidence
that has been ^;i^en, and there has boeo no leas
than bttween flkrty and iaXty Witnesses prod u ceil,
tushew thrit it ijo n^ully impoaaible what Oatcs
did 8 weir \hould be true ; be tells you that this
maUtfr is in a circumstance of time, wb^^rein it
is difficult fur a man to be positive to a day,
anil a man may be ollowe<l some latitude m
such a 4^056 ; nay, \t is usual with witnesses in
^)t9 ^'Uiue,taswear with A latitude. But,
«^.
my l<>rd, to sliew tliat, if we «boulii ptMtll
^se dfki ti inr u\ H*- iiiir mnd fabcinainyil
it is, a I T\soi)ueiictini
bo, if, V, , -'t1u|>^Ba^il
d«pond upon ciH Md ^
lh€ witoeflses sh>
those ciit:ttmafeaiKM8), \
position, it 18 impoaatb
service in the case beitbrt^ you . lor \»x\
be^nning of Aogast, and the luh af
ber, which incluiles !»• '
to, (and the latitude ti
boot) thcte is not anv oik- unnuuit
whfTeiu his oath ooulJ be true«
Gentleman, you ob«i«rve what llie «*^
have said, how Ihejy havo given yi* *^
count of every j»arf iriil.tr day of lirl^ ®^
frt»m the 3rd of y^hok b« ^<^m
London, to the in - ^ i ember, wte^^j^
turned back ugain ; wc did a^k die "•'^
that it might anpeftr to lie (ilainly
they swear, if iney badiuiy "^~-
atancei! that maik them to
they have giveu a great io;m
upon us to shew you thai
that what they have said and te«tin<
true ; and that those days itn^
was in the places they named.
For take the periods of time,
find you liave him frotii the 3rd of
the 'iGth, with mv lord Aaloti, g«
London to Tixhall; upon thr irih
yrni an account of him at 2^1 1
26th ; fn»m the 'itith to tlu
there are others that give you a part
count, by remarkable ciicumstancrs,
waii every day io Stafibrdshtre ; frud^*
to tlie 7th you find him at Wc^ltrr^JN
For the 8th indeed, we do give no
account where he was that duy ; but w*;
that upon the 9th he wa^ at TixhatI, mdi
thence he came away niUi air Jotiu Suolfti
to wan Is Loudon ^ and then ' 'v\
cular account where h<* w.i yi
14th, when he returnt^l to hi> ik-uj^u
And now, gentlemen, I shall
ti,r^t S v*Mt Mii've these witnesses naw
ll :> ; thiU certainty it wasu^tuo
d.i . : , ^tak of tliat they did ser him.
Fir»t, That he ivent out of town in Sm,
you hare these witnesoe«, Aurio In
I'.leannr Ireland, Airs. Duddlc, Mr»* Q
and my lord Aston. >Vell, how come t|
remeuiibcr it was upon the dd ot* Ai
hy thi
holiday, which they koi!|i Is iMmorg^ oC.
tins ; and upon that day tboy
Ireland went abroad to take %,
came home again that night, th<Kigli iIn
of the company staid there; beeMisolie
go out of town upon the third day allcr, i
must be the third of Aogust ; for Igm
day, you hear, is alwtjft the laM fil' Jtijhr^
they do ikositivehr swemr, ibal upaa t&
August, he took bis leare of Aatm InAam
Eleattor Irekad, .JII»* 0Qddlt
Why the four women retneniber it I
ttctifar remark ; three days befonr I
'd
STATE TRIALS, l James 11. \6t5.—ffr Perjury.
[ISM
rent out that day, l^Irs, Qui no,
sband u-fts his taytor, saya, lie did
le to ha^^e Bomcwlial in bb dotlies
umI she saw him in hh btjots, and he
as to go out of town. Mrs. Anne
ys, they took the liberty to Todge a
aan ia his chamber, and saw bitn not
I fortnigfht before Michaeknos : And
lid gi> out of town upon the Sd of
& further proved by my lord Aston^
d it down in \m book at that time^
ud catiie to his bouse at Standeti iu
hire ; so thftt here is as strong t*u
i« can be, tlmt he did ^^o on the Sd of
nd that they rememWr it to have so
alt the circumstances that can be
le third of Aufiut he went out of
be 4th of Au^st we ^ve an account
wa» : he staid that day with mv lonl
itaudeo. The 5tli of August Le set
my lord Aslou's company, and went
tiB. The dth he went to xVortbamptott,
► Coventry. The &\h toTixhsill ; and
an^ that went with him proTts it,
iSir Edward Southcoflt, and Mr, John
; and IJarrisauand Uobson who saw
the company ; and Mr, North, who
aw him ev^vy day ; and Ing-letrap^
man that drove the coach : ell thet^
it positively, and some t/f them speak
Brkahle pretty horse, whicb he rid
hen he comes from Tixhall, (for we
l^bt bim hither by manitest proof, hy
could not forget^ by men that saw
le ccmipauy), there he remained (ais
■Cil^^tiy the l3lU of Au^'ust, and that
SicMuy atler hiii arrivaJ at TijCliaU;
thence he went that day a journey
ishire, to Iloly-^V ell ; and that ii
the witnesseii that were in his com*
lat jo«irD«y. They 1*11 you, the 13th
Nant^ritch. TJie 14th at Holy-
'be 15th at Chester. And the 16th
mck agMin to TixbaJt And so here
! abundance of witnesses, that g'lve
uticular account wltere be was, in
ipany they saw hini, from the 5d of
the tOih, If be were then in this
froTn the 3d to the lOtlt, he could not
chamber in Kussel-street, between
id the 12th.
re came to the 17tb, and then we find
at Wolverliampton, where he con*
the SOth ; aod that it must be between
uid the 2(5th, la plain : Fur after thai
h Mr^. Harwell upeaks of, the other
gfive such circumstances, that it can-
erwise, Voutind him on the 27lh at
ioe, which is a remarkable circum-
nd these are things that men do very
mber what days of the moiith they
(Km* We then |ifive you an acconnt
It ; that at Tixball be was seen in
upon the bowling -{ffeen with persons
i £iir Thomit4 WhitA^grtve, and
others i so we g^ive you au acoount where Im
lodj^ed. The ^i8tb be was at Bellamore* The
*i9iU be went to >lr- ILcveuiu^ham'S, thue ita
tcH%ed till the 1st of Septeim>er ; and this is
remembered hy particular circumstances, that
he went ;i fibbing', and a setting, and a buntiDg^,
Then the next day, which is thi* 1st of Sep-
tember I and the next day after, the 2d of Sep*
temher, tliey siuv bim at Air* Gcrrard'sj
he dined u[mn the 'jnd at Mrs. CroniptonV»
and lay at Boscobel ; tIjtTe he continued tbn
3rd, and the 4tli he came to Wolvechamptoin
again.
So that this &hews, that what Mrs. Harwell
did speak of, was true ; for if Mrs. Harwell di<|
see tdm, as it is not at ail doubted hut she did,
it must be in ih»t intei-^Til of time between lh«
]6tli and the ^Ttb ; where we gfive you an
account of him l»y other undeniable circum-
stances, that be lodged at otlier pJuct^, and
couM not lodge at her bonse at 'Wolverhampton,
Besides, gentlemen, the particiitar circuin-
slanceii that they do rememtcr bim by, proves
it to be on tliose days. Mrs. Harwell ogives her
positive oath, thai'he did come there the 17th,
and lay there every ni^ht to the 26tb| which
was on the Monday f^even- night after; an4
that be ciune again the 4tb of September atW^
and lay lb ere till the 7di.
Then there is Rushton, Niother witness, th&l
saw him at her house the IBth, 19th, 'iOtl^
21st, 3 2d, and 2 6tb. And, I say, it nmst bo
tliose dayu, l>ecau»e we have j^iven an ac-
count, by oiiier witnesses, ofall the other days,
and it must be that very time tliKt Gates speaks,
of ; for it was the summer Ueibre Ireland waft
apprehended and executed tor the plot, whicti
wai* Michaelmas 1678.
Mr. Winford, he remembers biro at Wolver*
hampton^ tlie IBth, 19th, 5i2d, and 24tb.
Stanley remembers the 18tb nnd 19th ; and.
if yon ask him how be remembers it, be tells
you, by a circumstance that mo^it men would
remeiuUr ; be buried bis child that day, atid
entertained Ireland with the provision for tba
fuiierah Now men usuaUy remark such ac-
cidents as these : for that is a thing a man
cannot forget, that has auy concern in thcs
world for those thai are so nearly related to him ;
and therefore such circumstances must of ne^
ccsdly evince the truth of what he speakn^
because it is brought to his miad^ by nu accident
that cannot he forgottien.
Mrs. Pureell.which is the next witness I and
she remembers to have seen him the 18th, 19tb,
'JDth, 2]s|, C>2d, ami 2(}d ; for sbt; rcmembtfn
the last of thera was the day before Bartho-
huiiew dayi which wo^ a remarkable day.
Tlijen there is another muo, that looked to
bis horse wbiUi he was there, but his memory
will not serve him U* speak to any particular
time; he only evidences, that he was there ;>
and the other witnesses! speak to the time*
Mr. 8lamtbrfl, he remembers it to be at thai
UmSj because he saw him on the 8uDday after*
the Assumption of our Lady, which is always
Ibe 15th Qf Aujpjst. and the like sa^f Mrt%.
i
ftsvy lierlet*
lidmij.
4 tov. Foiftery
on the
heanr Inmefeiyikjy.lilltlie'
if ]En.HarwdPk
be ounethe irth
liH ae 90Cb, campC one day. when he went Id
siJehe
^ tlwiirMtiM dRj befti« Butbo-
^.^, wbidi WW Friday.
Kedingfy fhe ewewiiy that apoii the
17th daj he ceine there/which was Sttordej.
'flheaawMB^B the 8oadBT» and oa the Im-
4tj $ aad went OB the Holiday '
tathofmenl of her modwr, whieh is
sthatshe
•iri. by that, has the leHMmhraiiee of the day
ofthe mouth whCB he was there: and she re-
tvMd back sgain oaThonday, and heaid huB
Oat day, but did not see htm: But she saw
hfatt emy day afker, till he went hway; aod
dhe laaMMhenlus gioiii|r away was Q|wd die
ememMfs fikewise, that he
trih. And she rememb
taia d^, the that Thonisy n gipMl
that yearithsMnwdte be the flib
aaditwasl
dlaedsthiBaiHt*s:
to ny kid CnBoB, he woaU sat 1
Aodso it most be the sediad day <
thathesawhoBthcfa.
Bfra. Cfonplon aays it
that her nephew, Mrf ITiddalph, d
ibrhewasai'
FdsMr, that swiear^ be'dmed at |iii.
ton's: botdie cannot Idlthe
wlien.
Mrs. Giflbrd saw him at fancnM, heMI
the honni of four and fiTe in the '
I the 4th ofSeptember after.
Mr. Biehardssn, he proves, that he saw him
iKpm *e 19th day of A^pmt at Wotrcrhamp-
Isn; as he was tsb, it was be: and boi
wiMahewas told sol- Hesays,llfi.
tsU Um so soaw tnie befbie he was appre-
hnded ; so Aat she eooM not Irfl it him ifaeB,
tssetftfatoni. AadheisaiyohaslSBtieo.
' So is fikewiie EleaBor Omves; who gives
yoo an aooovmt tiiat die saw him diere on the
iOth, Slit, and 29d; andon the S3d, sbe weirt
to Utchfield with him ; and opon the 25tb,
sbe snpp'd with bim at Mr. Wmtbrd's.
Now, gentlemen, yon have a full aceonnt of
i^ even to a demonstration, that be most be in
these places at this time, if yon will believe one
thing, that is, that these witnesses mw bim at
alL And sure none can doubt but these wit-
nesses did, noon the drcnmstanoes they have
testiBed, see him in Angost and September :
and then it must be those particular times, that
tSiey speak of.
At Wdverfaampton then yoo have him to the
36th : The 97th day, yon have an accoont of
him at the borse-raceat Etching-bill. The
sath, Mr. Howard gives you an acooont, be j ber; and went from thence the fimih f^
dined at Bellamore, at Mr. Aston's. The 99tb, i Black-Ladies ; where Mr. Giiferd idb fit
yoafindhimattbeBowKng-irreeoatTixhall; I he4lined.
and from thence to Mr. Hevcnsigbam's, where j And we have given you an aoeoost WbN^
w — — — ^^ — ^.,~_«.. <«.«. V »««. '».<w. w.>v vto'W'wwMa WB oepiemoer, ■■■■ n^^ — -.
Sltt, yoo bear he was at the killing of a buck, j not give yon a positive evidence, TM 4£
where Mr. Gerrard was expected, but sickness j the seventh of September, at nigbt,or trM*'
prevented his coming. And you have him the . eighth, he was at my bHrdAston1i;yitiieknV
upon the second of September; sad Leisrif
along with him to Pancrass ; and fmadW
he went to Boscobd.
Mr. Piendrel says, he saw htm the sMaddf
Sqitember at night ; for Jie came to ImImML'
Which agrees with all that the other siliund
say, which was, that he intended ts go Itl^
cobel that night. He and his wile both tcdjif
that there he. hxkped upon the second of lf>'
— *^- and staM there the Sd of ScyM**
1st of September, which was Sunday, at Mr.
Genard's house, where aeveial of the witnesses
did see him.
And besides, one Prodsrteis yon, he saw
Mas the 91st or Aug^m U Fttlfcrd, ai Mr.
I«wa^ AndhavaiywaM
ht the fmm, by a iimIi
given 3^011 that which amounts shaostHtdF
monatf alien, that he roost be thsrs ipM
eiffhth of Septenriwr. PorhewcntliMdP'
with «r John Sonthcnat. logo toivsffdii"
on the ninth. And onr e^toee ii *» I
credMe, baoaiM thay mnv cnndiiitr«
thwmHMliin«iii»>
I
STATE TRIALS.
«^ they \n\[ not take upou ihero to
articular Ume.
Ulemi;R, we ^Weyoa an aoc^unt, by
tbat were m kufl company where
y day, all ih\pns; from the time lie
^ down to tlie tirae he came to ^r
coat's house in Surrey. And this
c up tJie ninth, tenth, eleventh^ and
fpteinbtT : there arc fonr days ; and
ore one Hay. Then he sold Mr.
bis borse/ Mr. Southcoate lent
sc to eoine to tovin ; and the next
come to town ; and so we have
I to Saturday the foifrteenth ofSep-
let all the world lie jud^, il' there
Mkt room itfft^ that ^ly one wnrd
pi snid con be true; even tpvinif
itiidc of lime he him*«etf desires,
I witnesses must be allowed. No,
one minifte for bim» wherein be
red in any one tittle ol his evidrnre,
1*8 beinf^ iti town. And this is that
(am! sure, well I may so call it)
iti?e pr«Mjf, that what Uateti did
erly i'jise.
n, the jury had not this evidence at
reLand : some there were that went
>wn with bim ; und sCKne, one or
vprhnmjjton, were at the ft?c Je-
but not abov«^ Bve or six in all
w odd, that now appear. True in-
I these Tvere not there; and Ireland
afortunately sulfereil ; for m J may
> say, it »*is UQibilunately.
a baa said one thing" unto you,
lys much stress u[K>ri : be would
k upon it as a ^reut barilship, that
tion come« so late ; and that it is
' eix years liuic spent, this should
u foot.
letnen, I cannot but with much
^mber to you, and I know you all
too weU; that there was "a thm*,
y of Lnndoa was so far corrupted,
become a refuge and a sanctuary
Lson; wht-u there was no justice ro
ihe kincT iht-ie; when raen lodtfeil
lithin those walls, as a protection
ispiradt?s: wc all rememW the
iBdicttneuts were preferre^J, aud a
ce ^fen to a gi:\w\ jury, even to
itisjaction of iill thut heard it; and
e ref\is«'d to find i he bill: And not
were so abctled by the ral)htc» that
mfe for the judges to sit upon tlie
mt are thin^ none of us ran for-
ist be iwfri»eU!ally rememb^ed lo
of the authors and contrivers of
ibcrefore it is no wonder an indirt-
ot preferred airaitist Mr. Uates at
hen the phinest proof ajL,'*nrnbl rri-
I not \i§ admitted. And this will
man sOTsifactiot*, why it has been
id 1 hope, at the same time, give
I caution, how tbey M into the
l«(uce« «g^ia«
But^ ^ntlemen, you have betird tbe evi*
denrti that is now offered^ to prove this matter
of fact ; and tt is a plain denion&tr:itton, If you
will believe that Mr. Ireland was seen by these
men at all, be was seen at those very times
they have parricutiirly declared ; For ii|hiii
consideration of the rircumstauccs, it is impos-
sible ii should be at any other limes ; and so |
leave it to you to judtJe upon I he wliole, whe-
ther tbe (let'eiidant be perjured or no.
L. C, J. Gentiemi'n of iHe jury » this case has
taken up a great deal of tiuw ; but it is a cibu
of tbnt moment aud coo^etpience, that sure uo
time ouyrbt to be thou^^bt tmj long, that is cm-
ployed tor the discovering^ of the truth, uo ne*
re«siury to l>o discovered, a*< ihe muttf r now tn
question. For as 1 said at tbe bt j^mnin^ upon
this occasion, ami I cannot hut say it again
oovr ; f eonfeiyj, I caimot without horror and
trerabling^T retiect upon the n»any tulscbiet's
and incouvenieocc^^ we bavc been run unto, if
the testimony given this day in this cause
n^s^ainst Oaies prove true, a^i 1 cannot in the
leaiit imai^ine where there stiould remain the
least objection against the truth of it ; 1 cannot,
1 g!iy, but bewad, that an many Innocent i>er-
snns (to the reproach of our nation be it spoKen)
have ^iuHered death upon this account.
God deliver me from having tbe least staiti
of inuuceut blood imputed to me! And it is
more lo be lumented, when we see thai impu«
dence, which has brought that infamy upon
our land,coatinuea with a brazen face, defying
all i»bame to this flay. But by this w« may Im
informed, hovv some men's cooscieuces are
seared, and that there are some people that do
indeed live without the fear of God in tbe
world. For if that tnan^ who has assumed to
himself the habit and cbai'acter of one that
BhouUi preach to others religion, virtue, and
the tbiug-s that become true cbrislianH, shall
become such a monster of impiety and inijHi-
ilence, in defiance t)f hearen and earth ; what
greater and more mftnifest proof can there be
of a seart'd couijcicnce?
I cannot but lament likewise tbe wieketlnean
of our agfc, when I reflect upon the testimony
f f that other wretch, (indeed I cannot use
I' nns severe ennut*h for him) that when he
vrns going into another world, sfiould |>er^ist in
Nuch ^ross falsities ; I mean Red loe, inliimoue
Bedloe ; and let bis natne be for **vt^v infamous
to all itiJtnkind, that have &ny reuar^l o\- defcr-
enee for the truth; that be jibould with bis
latest breath dare Jo atlrrm, that every word
he hadsflid of tJie P*M»!"h Pled wis true; it-hea
it !!» an clear as llie sun, by the testimony of
tbi"? day, that every word he' swore about fre-k
laud vnis utterly false. Good Got I of heaven I
Wlial au ajfire have we Kvcd in, to st*e innocence
suHer punishment, and impudetit falsity retj^
solotig!
Gentlemen, I bope all eyes are opened, (I
wish they had been so lonj,;^ since ;) let us by
Ihe burden, the infamy and reproach of tbc^e
tkiof^, upou tbeai that tteserve if i fur wc can-
40
1899] STATE TRIALS, 1 James 11. l685w— TrW of Tihii Oatu,
not but know, we are reckoned ax a by-word
to all our neighbours, and shall remain monu-
mento of ignominy to all succeeding ages and
times, if we do nut endearour to discharge our-
selves and our religion, and the justice of our
nation I'rom these scandals.
Gentlemen, I think I am obliged, in the first
place, to take notice of what Mr. Solicitor -ge-
neral has mentioned, concerning the insolency
of tTiOKC times, wherein the faction was grown
to that extravagant height, that, in truth, a
man durst not appear, with safety of bis own
life and fortune, to testify the tnith. And, is it
not a shame, that it should be remembered,
^hat one of the witnesses this day testifieth ?
That when he came to appear at the Council-
table, to attest a matter or &ct, before this in-
nocent blood was spilt, (for so I must call it, if
that which has been sworn this day is true) the
rabble should be so boisterous, as to cry out,
* Where is that rillain, that dares come to
* g^ve evidence against Oates, the Saviour of
* the Nation ?* Oh, horrid blasphemy, that no
less an epithet should be given to such a pro-
fligate wretch as Oates, than that which is
only proper to our blessed Lonl !' As though
Gates had merited more than all mankind ; and
10 indeed he has, if we take it in a true sense :
He has deserved much more punishment, than
the laws of this kind can inflict.
And I must needs say, Gentlemen, that this
is an instance, why there seems not to have
been punishment enough ordained in law for
perjury, because our law- makers did not fore-
see, that there could ever be such villains, such
miscreants, as these.
We have indeed anolher instance in the law,
of a crime for which there is no aderjuate pu-
nishment; and that is in the case, where a
child kills his father : Parricide has no peculiar
i'udgment assigned for it ; but we are forced,
because these things have been sometimes
practised, by a construction in law, to make
that child as a servant to his falhtT, niid so
punish him with thejudginent of petty- treiis«in ;
but take him immediately as he is a'chiid, and
not us a servant, and I say there is nu parti-
cular provision in law to* punish such uii of-
fence : And, what is the reason of it 1' Kecaiise
it is so unnatural, and asfaiiist the inia^^iuatiuns
of mankind to believe, there ever could be such
o wicked child in the world.
If that be not to be imacrined, how could it
be imagined, that there should be such horrid
villains, as should attempt the destruction of
the government of three kingdoms? Good
Lord ! What times do we live in! Surely, it
is such an age, as was never known from the
ci*eation of the world to this day.
And to this' must be added, what aggravates
the mischief, that all this is done under the
umbrage, countenance, and pretence of law ; the
proceedings of law, the usual methods of jus-
tice, are made the instruments of the most
horrid injustice. The murder of our late
blessed sovereign, kin«r Charles the Martyr, of
ev«r-happy memory, taough a crime wbigh in
itself as the law knows of ; yet 1 may
was aggravated very nnich, that that ui
nate, but glorious kmg should be brou
the block, by a pretext of law, and cut c
colourable methoil of justice ; it is thai
makes that murder ten times morebtae
famous. So, gentlemen, the dettroc
poor innocent persons, by false accoaati
the |>emiGious evidence of perjared witn
a court of justice, makes their crime in
more odious, than common murder.
Gentlemen, I cannot but speak with y
in a case of this nature ; and I the rathe
so, because, at the time when those
were done, we all know the nation wi
hurry, and a sort of ill-minded men ha
in among us, who bail blown us up to i
height, that nothing but what compli
their malicious and devilish designs m
believed ; when tbe king could not get c
justice done against letd traitors ; Mittl
streams of justice were all corrupted,
the fountain (God be thanked) was pi
pnre.
When the factions (by cabals and inl
had got sherifTs ol' their own party,
boured to get all other officers oftbc
wicked principles, then came all those ra
we so long laboured under. When tb
lows that had so great a share in the L
hellion, were tbe only fit men to be trust
the government ; and all tlie while wt
signmg to destro}' it, and to bring us i
same miserable condition we forn^erly i
Was it ever (I speak to you, Coiit!i
the Jury, citizens of l^>ndou, who k
ancient constitution, and have too well
rieneed its late coiiv ulnions) was it ever i
till justice was dcsi^rntd to be oon uptc
there was any labouring to Ik* slienff
endeavours «crc alvva\s usfd to be ej
and fines paid to get oft' iVom ihat offic
the reason is plain ; for never was there
and weiilthy citizen, that had a uiiiid. o
principal part of his rstcle, to squalid* ra
much as is necessary to defray ilie <'l>.i
that ofiice : but it was the desipi that
rascals liad upon the governincnf, tbit
them 8o greedy (>f those |ilaces; aaii
thought they had now an opportiAiity to
their design, upon these fellows preteodc
covery. They believed, that because w
hurried into the mischiefs of the late tint
pretences of Popery, the same bait w*
swallowed now : tirercfbrc the cry uiusl
up, » Popery was a coming in.* The
eluded, if they could but make use of the
engines, they bliould have the same effect
ness a peer, that is now dead, one that
main instrument of our confusion in tl
times, and thereby experienced in tiHain
made use of as the chief tool in these lat
trivances.
But alas ! when they fbund those in
and projects would take no longer, w
fly to that, which was indeed the bottoa
I mean, The Bloody Qoospiracy. Wte
301]
STATE TRIALS, 1 James II. l6B5.--for Ptrjvry.
[1302
lund they cmild not overthrow the govem-
lent by methods of law, they betake tlieni-
elrea to downright treason, iw by this time
le eyes of the honest citizens were opened ;
nd tbey found what interest was driving on :
nd it was time to have them open, when a
Boae in Guild-hall was always tried according
> the characters of the client, and not the
MritB of the cause ; when if a man was blasted
rith the name of a Tory, he was sure to lose
: bul if a whining rascal was sanctiftetl with
M name of a Whig, he was sure to have it
D oa his side: witne^vthe famous cause of
f r. Loades about his lemons.
Bat when SbcrifTs came to be elected in -due
Bmner, such as were fit to be trusted with the
Sty business; what do they, but break out
■Id m horrid conspiracy, to take away the life
f that blessed king, that merciful prince, so
ildy deceased, to the grief and sorrow of all
m m'ms and loyal subjectv ? and not only so,
■t to n» us of his sacred majesty, our pre-
■Bt most gracious sovereign ; whom I pray
Sod to preserve long to reign over us. VVo
vhijeb, the Auditory gave a great acclamation,
■ymg, Amen.]
. Gratltmen, When these things arc thought
90D« you must give roc leave to observe (let
Mhers thmk what tliey please) that was the
Ml Plot, the true Plot: for there is one thing
AKrvable, that attends this whole affair, that
My man who suffered for the plot, which the
■jtoiwiu truly call Oates's Plot, to a man de-
Md it, even tp the last gasp ; and took it upon
Mr deaths and salvations, that they were in-
Dt: nay when they had not those hopes
\ had of life, (for I cannot believe, that he
have been so egregious a villain, as to
I attested such notorious lyes, if he had not
1 to haverecoveretl, and thereby increased
^OWD reputation) yet not a man of tlie others
■t disowned it with their dying breath . Now,
■ tlM otlier side, there was not a man, that
**■ ooncemed in the conspiracy, of which this
^■s to be the blind and the colour, had the con-
'viee to deny it, when they came to suffer i'or
•^AU this ought to be put in the balance, and
"V weighed.
ywr. Gentlemen, because it \i a matter that
^ot oolv public here, but all the world over,
* mHt nave the justice of the nation vindi
^^9 and its disreputation wiped off". Am
lore you
Vint, You must observe, that this Indict-
^t against Gates, is for
committinijf wilful
' aUo said to be
s false, surely
his false oath,
k ioBooeDt men been convicted, condemned,
^ eorrupt Perjury ; which is a
1^9 Maliciously. And if it were
^la malicious ; because by hi
'^ ioBooeDt men been convicted,
^
ly. Yon are to consider, how far the
goeiy to make it material to the issue :
k won upon a nicety only, or a catchi'or
any of those fine wonis. that he has been
pleased to make use of, it wen* nut fit to perjure
him upon it. But it is certainl)* »< ry material :
tor time and place are maltens substantial to
discover truth and falsehood by ; as in the
case of Susannah, the ])eijiiry of the Elders, a»
you may remember, was detected by those
very circuinstanres. But I shall shew you the
occasion of this bath ; and that will manifest it
to be a material part, in respect of the time.
For,
First, Here was a consult held, as he testi-
fietl, the 124th of April, 1678 ; and tlivn he
sw(»rs Ireland was in town, and present at the
consult : But all that Gates swore would not do
the feat, because that he was but one witness.
Then comes Bedloe his worthy yoke- fellow (a
brace of such witnesses, as the Lord deliver all
mankind from.) and he assigns another fact
u|K>n Mr. Ireland, in the month of August, the
latter end of it, or the beginning of September ;
which is material, and makes two witnesses
against Ireland, which Gates knew weU
enough : For he is his arts- master ; be knows
all the tricks, and can tell the very nick that
will do. And therefore, when he finds Mr.
Ireland so positively affirming, that he was
then out of town ; and if so, Be<llo« did not
swear true ; then does this Gates come in, (and
thereby makes his testimony material to the
point then in issue,) says he, the first of Sep-
tember, or (at least) the second, 1 wiH swear iio
was in town ; fur he gaVe me twenty shillings.
And thai is given as a token, why he does re •
member it. And thus hedi«l prop iipBedloe's
testimony, againsit Mr. Ireland's defence.
This is prove<l to you by Mr. Waterhouse, who
was one of the jury. And the same thing
does the next gentleman swear, which is Mr.
By field : They do both agree in that ciicnm-
staiice punctually, that he swore he had then
of him twenty shillings.
Ay, (but says he tor himself, because I would
remove the objections out of the way, a6 they
occur to ine) it is very hard, this lieing now
some six or seven years ago, that I should
be called to question about such a thing;
when they might have had a time to disprove it
betore.
Besides, Gentlemen, the answer that has
been truly given to you, concerning the mi-
serableness of the times ; when the truth of it
is, there was no jnstice to be had (or Protes-
tants, if we speak of tlie Church-of-£ngland
men under tliat name: For either the v were
Papistii in inastiueraile, or Popish ly affected ;
or the names of Tory and Tantivy, and I know
not what, was enough to do their work tor
them : and nobody was reckoned of the sober,
virtuous, godly party, but those that were
under Assticiations and Covenants : as though
there was no sanctity to be found in any but
thoae who were bent to destroy all virtue and
religion. 1 say, besides that, there is an-
other answer, which 1 am sorry has so much
weight in it: Conld any man have believed
thai Ostes •bookl dare so impudently lo swesr
k
I
t
I
any other }
be same objectiati nMiielD Ibem ;
STATE TUIALS» 1 Jambs IL i685.— Trio/ ^Tlliit €Mes,
a Utsehood, and that in « cauae where life was
eooi^emcd ; and the man haii^ed upon bis les*
timmi^ f To what purpose tb«n Hbould his
Brialitnis inU?rpotie to clisprofc Oaian, Atler hii
jeati) 'i' "Tliut wohU\ not revire him. But you
#tid there wii«i an inciuntioii that way, and 1
wikJi to Gudf \u ih uU my heart ^ it had taken
efleci? For what says the old gentlewoman ?
As aoitn as she heard what Mv, Dates had
sworn, w hich she knew to he false, inofnediateiy
she dispatched un ejicpre^s to Loudon ; and i
sent a petition to thekttisr, * That eitiier Ireland
* mig^ht Im\e a new ti'ial, or bis execution
* mJ^ht he reprieved, till they hrou^t up such
* \^'- lis would huye m^de it apparent,
' M •- a^iiiie h)^ht| that what thiti fellow
* ii.Kj I' -ii tiled >* as notoriously false.* But&ucb,
sucht 1 must SAV, was the mi^» fortune of the
time we w ere in, that stopptid the fountain of
mert'y its^elf from letting- fnrlh lis wonted
streams ; and even compelleil that compas*
sionuie prince, rather than lie would gk\ cany
dii^iurbaoceto his people, to permit that exeeu-
tion again;a bis own inchnation ; because there
was a vervliet, and judgement in the cai*e- For
as be was ix'iilly the Foimtnin of Justice, !*o
wfl» be id' Mercy too. And it is well known
to tlm?te that had the hiippiticss to he near Ins
Dcrsnij, how ufl he ex pressed his concern thr
tiavuij^^ consented to this Execution* And this
continued wiih bim even to his d^injjfday^ as
the busintsis of my lordot ^traflord did mthhis
royal lather.
And, (icntlemen* I chose to mention thitj
pafsngf concerning hi* latt* majesty for this
rea&uni Thni when we lire in such tuaitiltuofis
times, wht^u things aie put so bard upon
princes, as to eumpet them to restrain ibeir
mercy, where they think it rine, rnlherthau
secjn'to stop the current of justice; iliis shonld
IM>t be vemerobcred w ith sny retk'e4iou upon
Ihero, hut with infamj' to those that are the
causes and gronndu ol it : when sudi prodi-
gtoffs wretcw^, as Oates aud Dedloe, f<»r tbeie
appears no eridtaice before you, hut of those
two profligate vdlains, who came out of s^nh,
and ntler huvinjf been gfuilty of rillainieijaliniisl
of sH sorts thill ef er were committed^ came to
be saiiciilied by com milting- more ; and were
iherefure caUeiJ, ' The Saviours of tjje Nauon.*
Gentlemen, the ilext objection that is made
agam»tthe evidence furlbV^ kintr is, TJjst they
are all Pitpiiirs; who desi^i noihincr but to de-
stroy the giivernn;eui, and ruin the Fmte^tant
religion. And this must be taken to be the
whole desig-n of ail these persons of f|uality, aud
others that they come to forswear themselre*;,
and damn their aiiuU to iiUsteroity,0[i purpose
only to destroy innocent Protestant Mr. Oates.
Alack-adft^ !* When* althe same time, 1 must
teli you» if It were necessary, you have about
•even or eight Proti'stant witnesses of the
Church of Kni^land that conBnn the testimony
of the rest i uot ibut we must think, or oufipht
to have any such omceplron among us, but
that Roman CathoUcs in point of law are gt»od
iritnesses, and arts to be ctediled M caoch as
«rUc^««di
IIS evti ii
It is as
(;;nd sucii
lo lye w Vosffi
1 V inlu than (Vj «* '
asoftfioiiif
iirth vt^
be the satoe against * Ft^imiWd «0 « ^^fi^t
For there remains a right tii IfMsn, sad 4^
ought to have equal credit gtTeji lo their lo^,.
mony with those of any other uervueaon, i^
regular objection be not stariea agiina ibc
And sure I am, that has beieo
and shall be ra v practice, while .
thing Vi do with the admioistralioo of^
Let the sober party, as they call
make what retl^^ttioni ihf-y fd*
trouble tbentse I V
them not, nor ti
many peony p< -51 letters nu-i
have A mind to do ; two of v
last night, about yesterday a ivi
sure or, Ijiog is aa much the >
nation of a Pre*'" ♦'
Papist: nay^ u
incident to a P^
whining", cand
They can no ui >
forbear speaking; U
do the one, they do
De^idcSf I mu^t
caution I care, and &.
and action, all these gi:iitlc;ai«:n 4od stoi
hiive deJtvercd their lealiitioiiy, wtlli As
gi^eatest tendemea and care that |toiaiyj«ii
be : and as well as they hsTf* giviatavi'l
caution, Ml 1 cannot but pat it Uoine tsi
gentietnen at the bar, to give k ita 4i
sidcrution*
For though the oth«T juries did
Oates, and not tbem at that linae ; jm.
is not to be yotir measufc, becaasifle yea f
not the same rcA^n lo do it, €MA
person think, \[ ! be iitdi li
upwu earth as iwcar
treason , a - ' w sabjeeia, il,
were noli >atioti? Tbataaitli
thing that i^uiU^^U ib{>^ juries, wbo wei«tM if
them, no doubt, wery honest men s and Ail
was it, which intloenced the (larltaaaeat ts^
Afhat they did m the matter. For it wis m^
ally ifnp4issibie to 1m? tb'> ' ' v sn«li wkI^
cdup'^s I'ould t>e so pubht f?d.
But, God be thanked, inc c^ u^ ut all boaiA
and understanding men ore 0|*eiied; aadvi
see the fault was in our (rredtility ; and M
these were fellows should not bare tMsea li^
Heved : and it concerns u^ when thr* truth ks
Ijeen so debauched, and our *.
poHcd ujMjn, to shew the woi ,-i i'-
sentment (hereof.
And this 1 say to yon, genUeioen, sridi i
mirpose to vindicate those penMOs who wot
concerned as jarorft in the trtala of all libaa
causes : because that is the thittf^ much Um^i
upon, and aimed at : That liecauee he wis ith
lieved before, to disbcUeve bim po^ wnaM^iA
a reOection upon the j mica ; wberaaa, if ilit
opinion hold, never wilt there ba aarjr 9aA
thing as perjury detected^ ao Itmg as lae tm
and moon enilure : for tf a irepdkt ho
upon fah»e testimony»aiul it diall ba
V
STATE TRIALS, I Jambs 11. xU^^—Jor Prrjury.
[1305
i tty* I vras bdieved at such a
*!«> out you oft'er lo pro*
»r pin;|nry ; Tlifti ivouUl be th<?
It that cfnilJ be tiiiightf U> give
i>y all truths, justice, and hu-
ate it home upon you. Upoti
*. be it ; for, iw tV ' tjce of
heaven and t sees
Hd wiiljutlge lis i\n sMii ill ward
huA day, ^ liM.^ravt nnitnnm
L can 1111(1 all ilie^e pt^'^im^ (In
iy-nerrn) guilty of wilful^ U«»wii*
E, aiui corrupt l>ei'juryi tlieo,
the dt'hMulHiU.
ularsot tin* evidence, whioh
fnatiy itmUTial oi re nm stances lu
" aimI pbce, I slmll run iheui over
I cam, ftod remind you of iliem ;
I think it exlraoi dinary necessary,
fi«r« were the lesD^i doubt of the
the satislsM-'ticm of all ujankind,
Mtfor iiivincibte prejudice as^aiiist
Md I am «ure» upon yeaterday's
m remained nat any doubt wVh
rtl it^ save un«, who I know had
i in tt»e desi'^n, that was at the
iiud, I doubtf was one of those
1*1 this villain on work : hianatne
for the present, but a few
nver it here, or in aoros other
n, what Mr. Attorney, or Mr. 8o-
aJ, or any of the kind's counsel
' what the defendant has wiid far
ot prvived, and made plain by ©vi*
ae no tfutdauce at all to you| who
r^* ^ ng to the "testimony
I (Mii-suantlrt your oath,
ihi I luf •>i your enquiry.
tfisea that prove, that he did awear
be painK in the indietmcnt ; I
ition, they wen- so fid I . They tell
I' I hut Ireland was in <ownVri.>ni
I Aui^UHt : but because he
. ut firwt, I here was caution
iv not so precise to a day^ consider
f. Then cnmes he to #tnh the bu<
«|iiiek, and to rivet it home ; If I
dUive 10 the 8th > I will be positive
• «th and I nh. And m to the
I did observe hi-forc thai, U'oau»e
nt a Miuul, upun ]rrltitar» denyinij
town the laMfr end <d Aug-ust or
lip of September, thereto re comes
UHf to !ix it home ; and, suys lie, I
t».i.». M^ )own the Istor 5id of Sep-
;^avc Tue twenty Hhitlin^a.
■P IH r>^- ''If to a
w Mr, 8!»jit)tor «i<»e^ observe, not
ne Utft to give ai*v Kiirt of coun*
rhat he iwore, b thus mode out to
I are to take noheis that upon th«
»t, hcuig 8itarddy, it t» aworn by
three or four witnes.ies, Thai he went out of
town ; and this isnot sworn as Mr, Gates gave
hia eviilcnce positively without circunjfilaDeeiy
but they give you aii account how they re*
member it \ because upuu the Wednesday he*
fore, which was a public day of note among^
them* and always kej>t as • festji a1 in memory
of St. I^^natiuHt ufKxn the laat day t*f J«|y» *■
iioth they and Ms. Qatea hirneielf do apnot
there went Mr. Ireland, Mrs. Ann^ Ireland,
and their mother out of Iowa to a friend*i
huuse to dinner. Mrs. Ireland did dcsime bim
to 6tay there all night, as she did. No, sayi
he, 1 cannot stay all ni^ht, because I must ^
out of town on Saturday, and i roust provide
things ne«-es»ary for my journey : Nay that in
not all ; for it gi>ea yet further. Says his aister
unto him, Why do you begin your journey on
a Satunlay ? That if an improper day. Oh !
says la% 1 do it, hecatise 1 am that ni|fht to go
to'my ford Aftlou^s hou.^ in Herttbrdshire %
where I am to raeel with air John Southcoat
and go down with them into the country r thia
doea the mother $wear, and the ai&ler. And
then the maid-servant, and the taylmt'a wii'e,
do give you anotlier token, that it was Satur-
day the 3d of August, l>ecause he had some-
thint; to be mended in hi^ clothes, and staid
for them ; and lie was to go out of tow n, for
he h.id hia hoots on.
There is yet this eireumst&nce further,
wherein those' fuur do all agree, That as be
went out of town tl\e 3d of August, so be did
not return till tlic Uth of September; ibr
they tiay it wa9 the Saturday fortnight before
Miclifielmas, and the same day ot the week
that Miehaeluiu^-day was of* 8o that yea
wilt ^ud, that there is a constant proof, and W&
j>lain a one as any possibly can be in the world,
as to the time of his ^v\u^ out and coming
home; and where he uns in the mean time^
proved directly by a grciit company of wit*
neascs, eJccept one day. For yoii sec the 8d
of August lie weni '\o my ford Arton's at
Stnndtn ; |evf ral ihei*e are "that ^\\ him thero
the 4ih, and dined with him Iheie ; particu-
larly, sir Edward Southcoat. Aud to shew that
it is not a thing they are powtif « in, and swear
it rouudly without consideration, they give voq
an account of the reasons of their knowh-ilg*.
You are to con.stder alsit the lestimfiuy ^ivea
by my loni Aston, a j»etson of gfrrat honouf
find quahty : says he, though I dare venture
all 1 (I in worth in the worlds ujiou the truth of
it, that Ireland did go along with tr^^ all the
journey ; yH, because I did iioi take sitcb
particular notice of the iTst of i\\v time as I
did ot those two days, 1 will not take uih>n mc
tu fiwenr it. If My Gates hud had the tbructli
part of ihttt caution in his evidence, 1 dare say,
you had not hatl the trouble of this dav s trial.
The fifth, you have a great m*uiy wuncwea
who give you an account that he came on
Monday night to St. Albans wiih my lor4
Astnit ; thei^ ts sir Edward Soulhcoat. Mr,
Ji i oat, my loni Aston, the coachman,
ail servant*. Sir Edward tclh you.
!:3
Ik
1307J STATE TRIALS, 1 Jam bs IL l685^7Vui/ of Tilui (hitt, [IM f
that Monday was a hot day, and my lord Aston : child. I mention them but shortly to m
took him into his coach ; but he rode a horse- | because I know you have takm nolciiflEi^
back all the rest oi' the way, and had a fine ' and they are only used as instanceitoMfai
goinff horse, which horse Mr. John Southcoat the intiei^ty of the witnesses, thai tkii wb
bou^t of hiui when the whole journey was \ not a thin*^ contrived on puqMiiet» Hbi
ended. They tell you likewise, upon the 6th .' story of, but did really happen in the orivikii k
and 7th days, tlie very inns they lodged at up- • tell it. And I must remember ;uu of niiv \i
vn the road; and particularly at Northampton, j -' ' '^' "'- — ^ ^ ■^'
they lay at the Geon^, which was sir WiiUam i
Farmer's house, which was then let to an inn- |
keeper, broause of the fire in that town. And, j
which is most material of all, for Mr. Oates's
•atiidaction, you have for these tunes no less
than four witnesses, that are Protestants of the
church of England, who give you the same
account. There are in all no less in number
than fourteen to this point ; and whether you
will believe those fourteen to be wilfully per-
jured, without evidence to the contrary, is Icfl
circumstance some of tbem do iwtir, ^
whereas Oates had a mind to evade thdrlHi»
mony by tliat question ; whether thii viite
same Ireland that was tried ? It was iiiOit»
tainly he ; tor that is made too eridenijy lii^
r»r, by their seeing him executed at T^hii%
am sorry to say, innocently.
From the 3rd of August to the 96tb, ikmi
not one night but you hear where he !■:
And from the 2Gth of August to the Tlhtf
September, you hear where he wai, M lb
horse- match, ujion the bowling-grea,itlk
to you ; and if they do swear true, Oates that , Heveningham*s, Mr. Lowe's, Mr. Gemrfi^
' " * ■ ' — - .- .GifaH
nhlDAi
was yesterday tbund perjured, must be con- ' Mrs. Cronipton's, Mr»Pendrers,Mr.GiM^
Ticted of peyury again to-day : For in short, { and Mrs. Harwell's: And irom the
t perjury
the question is, '>ft'hetber you' will believe per-
fons of credit, that have no stain upon their '
reputation ; or Gates, that upon plain evidence
was found gnilty of peijury yesterday ?
When we come to Tixhall, we have no less
■umber that testify where lie was fntm day to
day, and from night to night, to the 17th, and - sumed, he was either at Tixhall,
from the 17th to the 2Gth. You have fitleen
witnesses more, all as direct and positive, as can
be m the world, swearing whei-c he was from
time to time. It seems he came to Tixhall on
Thursday the 8ili ; tliere he staid till Thurs-
day following, and then he went to Holy-
Well : he lay the first night at Nuntvnch ; tlic
next night at Eloly-Uell, at the sign of the
Star, a notorious inn tliure ; he came to Chester
on Thursday, and some uf the (*oiiipaiiy left
him there, i>ut others came back with him to
Tixhall : who say lio uent away on Satunlay
morning, which liapi)cns to he the i7th. And
tliUK you have, a full acciMint of iiiiii, quite from '
the 3d to the 17th, beyond all controversy,
plainly proved by persons of undoubted cre<lit.
And if he were, whore, llicy say he was, frf)m
tiie 3d to the 17tli, how i*ould Oates swear!
true, that ho took his leave of hiin here iu town,
between the Gth and l'2lh :'
Now, 1< t IIS conn fniiii the 17t!i to the 'ioth, ■
and you have no less than Htteen witnessei, ;
four whereof are IVotestanls ; which I urge
not as a necessary qualification to i»e a witness, i
but to answer Oat(Vs ohjeetion, as though this '
was a popish tie.siL;n to tiestroy him. They .
have given you an account where he was from I
time to time, by convincing eircuiustaiic(«, '
which you h:i\e heard: parli( ularly of one i
day that he went to Litchfield, one of the wit- !
uesses \\i III with iiiin, and a protestMnt witness ' man saw him at his lodging
too that <-aine hack with him again, and supjicd j wondered when he came m, that he hud
14tb, save only one day, viz. the Mh, jn
have a particular account toe ; and it diei Ml
j appear by a rambling evidence, bat t UM
I account is given of all the time, MffC Art
eighth day: which shews the cautioarfii
witnesses. And it cannot but be cttily|»
lall, or thm-
abouts ; because he was at WolverhiuM
the 7th, coming to London the 9th. niv
easy is it to magine him there the 8di; HJI
the rather, because where be was the 8ih ii
not material to the point in questioD bAn |
you, but where he was the 1st and Sod?
And, Gentlemen, if in case you hadiHil
to imagine, he was the eighth at LooikMi, it
must he by a strained imagination : for )W
must take him to l>e at W olverhamptoo ik
7rh, and make him ride post to London thit
niglit, and return post from London thettthu
Tixhall to be ready there early in the monioff
upon the 9th, or take four days journey back
again ; or else you cannot give the \aA
countenance to any other imagination, but thai
he was about Tixhall the tith of September.
Well, at Tixhall you have him the 9th af
Si.*pteiuber ; and from thence, }0u have it tO'
tified hy all the persons that came alon<r«ith
him all* the way, that he lay one night nt Co-
ventry, another at Banbury, a third at AgmOD-
tleshaiu : that he baited at |]\hiidgc the I'ounh
which was the ISth of 8epiember ; andcuLC
to sir John Southcoat's house that night, bdog
Thursday. He staid there Thursday iiighi,
and Friday ; and upon Saturday the 14ih of
September, sir John Southeoai^s man weal
along with him to London, whither h«> mli
upon the horse he sold 31 r. Southeojit: tU
audht;>3>s,thfy
' idktaid
with him at her father\s house. The ap<iti:c-cary so long.
tells you, the iUy that he saw him was a wake- { And when we return to the four witofM
day, which is areinarkahie time in the coun- ! they be;;un with at first, who makeali ihii
try. You are lold of the funeral of one ! teslunony to stand well together ; tliatbevcat
woman's mother, that made her stay away j away the Sd of August, and was nevrrioto*!
frum Monday till Thursday *, oi duoXlhvt luviu'a i lUl the 14th of JSeptember } and e%ery day, M
STATE TRIALS, I Jamrs 11. l6ft5.— /or Perjury.*
[ISIO
nber, which makes nothinff to
particularly spoke to : and he
It day too, except you will put
hard senrice, to ride post to
c again, in twenty four hours
on, hut only to commit a trea-
▼er found out, but Mr. Gates,
if he did, he took a great deal
y little purpose,
have taken up much of your
^ you the longer in this matter,
>t but say, with grief of heart,
0 longbesotted; and of innocent
leen too much spilt, it is high
le account of it. It is a mercy
iSH Almighty God for, that we
*om spilling more of innocent
blessed, our eyes are opened ;
1 care for the future, that we.
ly imposed upon by such pre-
lo.usies, as we ba?e reason to
ns hare too much filled our
e.
is incumbent upon you to try
i evidence that bas been given
ndant be Guilty , or Not Guilty f
bent upon us that sit here as
the law executed, as we will
tribunal of the great judge of
h ; before whom we must ap-
e our trials at the great day.
, but we should use our utmost
inflict the greatest ven^anoe,
of the nation can permit us to
3h yiilains as tliese are ; that
I so much mischief and re-
and so much guilt upon them-
am sorry, I say, I have kept
t is a case of such importance,
but say what I have done it in.
ther circumstances arising from
hich I may have omitted ; but
Uy and fully spoken to by Mr.
itBOCver has been forgotten by
I am sure, will be sufficiently
ir observations ; for 1 know you
of great knowledge andexpe-
1 of this nature.
ry withdrew, to consider their
liter half on hour's recess, re-
bar; and answering to their
d in their Verdict, " That the
Guilty of the Perjury whereof
teil.*' Which being rccor<lwl.
Justice spoke to the gentlemen
bis effect.
k ye, gentlemen, because there
lotice uken to day, as there was
«ming the opinions of Judgeu,
that have been given, I would
two to you : not that I much
^ of it at any time ; nor would
jrour sakes ; because I am sure
iiig to your consciences, and
but bacaoseitmay
be necessary, for the satisfaction of some people
that they should know our opinions also in thia
matter; I miutrtell yoo, vou have given'a
verdict that becomes your honesty, int^rity,
and loyalty. And 1 declare, in the nresoncebf
Almighty God, the (Marcher of Hearts, that
had I been of the Jury, 1 must have given the
same verdict. Gentlemen it is an honest and
just verdict that you have given ; and, by it,
you have contributed, as much as in yon lies,
to vindicate the nation from the infamy it liai
so long lain under;
Just. Withins. For my part, I think, if yoH
had given any other ve'nhct, you had fouad
against plain demonstration ; the evidence was
so full and clear.
Just. Holloway, The court is very well sa-
tisfied with the verdict; and you have ac-
quitted yourselves like worthy, honest gentle-
men.
Just. Walcot, There is nothing can be said
to the verdict, but that it is a just verdict, and
according to the evidence. [And then the
court arose.]
Die Luna, 11 Mail, 1685.
This day Mr. Wallop moved, that in refpLt^
the Court was pleased to give the Defendant
time till Saturday next, to move in arrest of
Judgment, upon the conviction on Friday Iwt ;
they would please id give to the same day, to
move in arrest of Judgment, upon the convic-
tion on Saturday : which the court granted^
But afterwards, upon the motion of Mr. At-
torney-General, they ordered, that a note of
the exce[)tions to both indictments, should ba
sent to the king's counsel some days before
Saturday.
Die Sahhati^ 16 Maii 1685.
This day being appointed fbr the Defendant
to move what he coulil in Arrest of Judgment,
upon the two convictions of Peijur}' ; he was
brought by rule from the prison, to the King's
Bench court.
X. C. J. Mr. Attorney -General, have yoa
any thing to move ?
Att. Gen, My lord, 1 pmy yonr judgment
upon Oatcs, wlio is convicted upon two In-
dictments, for two notorious ueijuries.
/.. C. J. Who is counsel for Gates ?
Att, Gen. Mr. Walk>p moved for him.
L. C, J. What is that Mr. Wallop has to
say ?
Oates. My lord, I desire I may speak ope
word. It was Thursday ni^ht before my attor-
ney could make an end of cxaiiiiniug the re-
cords ; sir Samuel Astry knows it very well :
then I sent] the rule to those gentlemen that
were assigned to be mj/^ counsel ; and the ex-
ceptions were delivered in but yesterday. I pray
I may have a day or two more, that my oountel
may be prepared to argue for me.
L, C. J, We cannot do that ; we gave yoa
beyond tlie ordinary rules, in extending it imtil
to-day.
IMKS II* 1585.— Trifl/ 9f TifmM Oafn,
^
tlie records ; he bad copies of Ibem all this
]ontC vacatiou. i
Oa£a. My lord, my atUimty will be ready I
to m«ike oatiii tbat be 6iuJiiUed tUe exaiuitiing
but <in TUursday oig-bt,
L. CJ. We do all know lUey were pleaded
la the layt timi ; and >ou have bad all tbia
vacaUoii locoosider of tfiem : and we b«ve in*
doiged you beyoiid the ordinary tirae.
Oata, My lord, 1 desire but a day or two
L. C* J. No, we cannot do it ; we bare
doue more already tban we ordioai'ily do* Fer-
soni tliat are ci>n?iaed, useto have but four
days allowed tbem to move in arrest of judg-
ment ; but you, instead of having but four
llftys atier^ bad eig^ht.
'Oatci, If your lordship pleases to give me
lime till Monday.
L. C J- I tell yout we cannot do it. If
Mr. Wallop have any tbiog to say for you, we
wiU bear lum ?
Mr, lVatL>p. I ba^e nothing to say,
Attn Gen* Here are lour exceptions deli-
vered to me last night, as nmde by Mr. WuUop.
X. C. J. But besayi he has nothing to bay.
We know not wbove these exceptions are.
Outei. 1 do deliver in tUo«e excepttons, my
lord, pray let theiu be read.
L. C.J, Read them, sir Samiiel Aitry,
CL of Ct\ Heads* Dominus Rex rrrttis
Oates. The Deiend ant V Exceptions :
1. That a witness Kworn in the behalf of the
king in a proi^^s of hi^^b- treason, cannul be
punished for perjury b^ tbe kingf,
S. That it ilocs not appear, that the Indict-
ments ol Ireland, <§ec. ibutid in Middlesex, were
legally transmitted into London ; and conMS-
quently, all the proceedings ibereupon were
* crorawi non Judice.'
3. That the perjuries assigned, are in matters
foreign to the i^^ue.
4. It IS *■ Resoluiio Signal* in that part of ibe
Indictnif'Ut, that mentions what the ddienthinl
' swore; and in tlie perjurv assigned, it i^i
* Resoiutio Signan<r ;' and tl is no good as-
si g n mc n \ of t h e pe rj u ry ,
Ja»t. WUhim. These are doughty efcep-
lion^ indeett.
L.CJ. Mr, Attorney* what say you unto
them?
An, Cen. Truly, my lord, I tbink I need
not sny much to them. The first exception in
a pluiu mistake of ihe indictment : for bad
Mr. Uat4^ been indicted upon thr* statut*^, it
liad been something ; but at tbe common law,
certainlv be may W prosecuted by the king,
tboui^b Tie was witness for tlie king-belbre. As
to lii'j second, that tt does not appear [relEind's
indictment was well transuiitted from Middle-
sex to London ; that sure is well enough : for
after it is recited, that they were so and so in-
dicted, it doe« set forth, that tlie trials w«re
had upon records there depending before the
commiBsioners of Oyer aud Terminer, and
eoaUdebvcr)' ; and it shall he taken, that
uioy wert vreil brought before tkecD. As to
the third except— •»- ^ \\\e petj^umwi^i
are foreign to r m m^tt, thtf iui
so : for it ib ap^ .:.i..:, uue of tii«
is in the expresn point of ihc mt
charged against litem, that is, ike «i^
tlie 24th ot ApnL And as inihtMni
dictment it appeared iinon the rndnet^i
Ihete was a Ireasonnnle meeting
August; and he swore Irpland wi» ^1
town in the beginning of Aoir
beginning of Seplen»ber, Ai t
fourth matter, that be swor-
sign it \ and tlie («erf urv aasit.
did not carry it to be sfjc: r ^
plain answer : for we al
corruptly swore that he v^ii.-* jmt>-vu. -
be carried the resoUition to be ftii|iMc4f
saw them lign the resolution, K^vr
Iwo things ire have laid the pcnir
say be was not there ; and, ^. fie
such resolution to be signed. Indeei,'
not say ih^t be did not j<)ee it signed,
need noi ; for if he were not iKcre,
rarry it, he could not 6c<* them sign tt
in nothing in the excf^^Kions^ my W
therefore, 1 nrav your judgnncfit.
X* C J. Is thfre any IkmIv of csoiund
Mr. Gates, thst will say' any tbmg to
exceptions ?
OaicM, I pray, my lord, thul I tn^ji
liberty but tilf Motiday^ for fnj «9M
prepare.
L. C\ X No, we CAntiol do it : iniM« I
there bad been any ci>)oQr^ or weurhl m ite
exceptions, it mipfbt have been somilliifS
though we bavc iudul^etl io this cns^ ^SfJf^
rnorf lltan we u^cd to do tii casAs ofthU oalutt;
for it isknov«fi to evtiry body, that
thing of the course Jind [»r»rtice »*
that »*ter conviclion, no nioie than Umt •*•*♦
arc si lowed to move in arrest cf jadj^mfSl
^tnd b^ing ihe pracMce of the cmitt, it ►» '^-^
Iftw uf the court; and I jim fsurr. «^ I lu
favour ought t- '
iu( in any case
l>ecauBe b'''>ih*Mitu nm m uu. i
of the law v> as aiuieil at by i
case, imd be hindered in hi** \
court did induTge him more tij <
gvauled in siicb cuhi^s now, ;,
tioos, certainly thuy aiv very i
For the tirst. It would be" ai :
indeed, in ca»e it should obtain, ili
be a witness in any case Ihr the kn
swear himself, he should nut I>e pr'>>
[*erjnry at the kiug*b' suit : for w r
uo man can l»e prosecuted for I v
be in eases of nppvul) but a J
king ; and io l)csure, all pro^o
son must be at bis suit. Ii
comd and forswt^ar '' ^
men's hves, and t!>
«|UestioD tor it, ctiri
were a line way to
lainy, and makf* tl>^
an instrumeDt '■
the world. I^iil , .„ o— -^
I
STATE TRIALS, 1 Jambs II. l6B5^ar Perjmy.
[13I«
link that an exception fit to pat his
to the second. That the perjury is
in points material to the issue, that
bervrise ; for the time roust needs
iterial, because it was impossible
*1and could be guilty of the treason
ist him, at his chamber in Russel-
eeu the 8th and I'^th of August, if
in town between the 8th and 19th
nor could he be pri? y to the trea-
y Bedloe the latter end of August,
ming of September, in Harcourt*^
he were out of town from the Srd
till . the 14tli of 8epteml)er ; and
th these perjuries were in the very
ue.
for the 24th of April, which is the
S' of all ; it is not laid in this in-
at there was no consult of the
I that day : nor is there any notice
there was no consult at the White-
*n ; but it says on y, that Gates flid
e was a consult there, and chat he
: at it ; and that he saw ihe reM>lu-
down by Mico, if I do not misre-
s name*: and that upon the 24th
le went with it from chamber to
to have them uign it. And then
indictment, and assigns the perjury,
i' be was not at the White-Hurse
day ; and 1 think it is pretty plain
for he was th<*n at St. Oniei*s.
niitting all that matter about the
the resolution to be out of deors, a
*y is assigned and proved. For it
roper for them to lay it as they did ;
IS in the other point too ; he swore
the resolution from chamber to
nd saw it signed. Now, sav tliey,
carry it from chamber to chamber
d ; and if so, then he could not see
and it will all be well enough sure,
one part of the oath he swore proves
B sufficient to maintain this verdict ;
ioriously plain, it was false through-
lis matter he now stands convicted,
I and plain an evidence as ever was
ny case in the world ; and I am
mK thatanv man, who is guilty of
ence, should continue so obstinate
ed in villainy as he appears to be.
ink it not amiss for me to say sunie-
this occasion, for the satisfaction of
hear me ; and for an example for
The crime whereof this man stands
s certainly a very heinous one, at-
;h such dismal consequences that
n it, that 1 think nu man can have a
tian spirit in him, but he must begin
ith the consideration of the great
lis penury has broug;ht upon himself
has brought the guilt of innocent
I inaoy j to be sure it hath upon his
,and I pray God deliver all men
)g uy tiaad id iD&ocaut blood..
And as the crime is great, ao it is to be
known, that ai proportionable punishment of
that crime can scarce by our law, as it now
stands, be inflicted upon him. But that you
may see^we have considered how to punish it^
as such a crime does deserve ; we have con-
sulted with all the jndges of England, tliat if
the law would allow it, tit might have such a *
judgment for this heinous offence, as might be
f»reper to terrify all others from committing the
ike again. For punishment is not intendbd
only for the sake of the offender, to reward
him according to his deserts; but it has a
prospect also of example and terror to all others^
that they should take care how they offend m
any such manner, and that is as considerable
a part of the end of the law as an v other.
Gentlemen, it is known, that by the old lawi
of England perjury was punished with death ;
it grew a little more moderate afterwards, not
to make the crime the less, but because of the
dansfer there might be of malice of tome re-
vengeful persons, by endeavonring by perjury
lit convict others of perjury. But tDe next step
was cutting out of the tongue, to shew that the
Uvv in ali ages had an abhorrency of false
oaths, and punished that impious crime of per-
jury with tne most terrible punishments.
Since that time our ancestors have yet been
more moderate, and have not extended the
judgment to life and member ; but by the una-
nimous opinion of all the judges of^ England,
whom we purposely consult^ with upon tliis
occasion, it is conceived, that by the Uw, crimes
of this nature are left to be punished according
to the discretion of this court, so far as that the
judgment extend not to life or member.
And I tell you this, Gentlemen, the rather,
because, I observe our law-books are more
silent here, in regard the judgments for these
offenres are not so solemnly and particulariy
entered up, as they are in cases capital : But
they are left more discretionary ; because that
crimes of this nature may be attended with
particular circumstances either to aggravate,
or lessen the punishment: And therefore the
punishment might be distributed accordingly.
And for that reason. Gentlemen, it is well
known to us all, that that was the occasion of
taking away the court of Star-Chamber, as the
preamble of the act for taking it away does
manifest : That inasmuch as the authority, for
the correction of all offences whatsoever, was
by the common law of this laud originally
fixed in the court of King's- Bench ; and tlie
proceeding by information in the ^tar-Cham-
ber, when it might be by process in this court,
was looked upon as a double way of vexation ;
therefore that court is abolished, and the autho-
rity of the King's- Bench court left entire.
And it is notoriously known, how punishments,
of all sorts and kinds, were inflicted by the
court of Star-Chamber for peijury, and such
like offences, while that court was up; and
since that time, in Fox's case and others that
you have heard of, it has been according to
the discretion of this c^utt, ^va\s}daA^^ «k ^a^'
4P
I
I
I
I
\'^
STATE TRI AI^, 1 J am es I L 1 6B^^Trmi qJ TitUM OaUM, [BW
now onened ; and indeed we i
incuraUy blind, if tl«* % l^«-< r
first by the contradi*
impossibilities iu ^
Kkeu ise by tb^ plai«, rived, iill
proof of forlT-«H i « •9%1'K U» oiit |
}>tHUt; ai|Aiiist Mrliiiiti yt$ki had 1
object, but they m et^ Pnpr«rt* mad RMWaC
holies ; which it n*^ n at " **""
at the same titn^, ii ^r^ 1
ten oJ' them wci-e Pi -h«<
Ensfland. Th»i \% u - 1 o my ;
bad uot one word toj^i^my vMui^wif iromi
g^reot and heitions perinry you were 1
of. I hoyve, I hare not beeo tlioog^ tflflil
in'natutt< ; aad« I Ci^nles^^ DOtbmg bnki«^
great a rey^tt m hu m mv ^dace sod < '
as to ghv rtmince ibe 1
tence of i ^ iow-»uti
rt^Jluw-creaiiuret» : But nn to you, BlrM
eaiHiot say, my fellow -clirt^' 3^ n, Yf|»'|
case, when t consider \ ot : and lltcl
Dial effects that hare io\U > u it, I (
say, 1 hav«any rcinorse m i^vjag
upon \ou. And tUert^ibre bavinj^ toM jvil
thougliu shoiity al>oiil your criiii«tl
readily I pronounce your centesc«t
novk' ifeclare the jtidg^meni ol* Ibe
vou. And it 15 litis ;
Tert-ly as this court thought iit, m ai the sen-
t«;ncf did not extend to Hie or meral*er.
Now I thoii|rht it prftper <br me^ not mdy
for the sake of the case now before us, but alsu
for your learning sake, to tell you, tl^is was tlie
resfjlutton of all the jud^s of England, upon
conwderation of the precedent*, and of »ll the
rules of law ; which have been fully debated,
and cnnsiderctl of: And thij, i declare, i» ihcir
ununimouj» opinion,
if tlicn this bt so, and it is left to the discre*
tioi) of (he court to inOict such punishment as
they think fit : far be it from this court at any
time, as on the one side to iotlict puui^hment
heavier than the crimes deserve, (no, we would
rniber use commiseratbn, than extraordinary
and extirbitunt severity ;) so, on the other ^*de,
to let go crinie^ so notorious and heiiu>us as
these, without the severest mark that can, by
law, he put upon them. When a person shnJl
be convicted «d' such a foul and malicious per-
jury QH the deff orlaut Lere is, 1 thitik it is ini-
possible for this court, as the law now stands,
lopm a nitnishment upon him any way pro*
rrtioname to the otlence, that has drawn atler
so many horrid and dreadful consequences:
tVe do therefore think tit to inflict an exem-
plary punishment upon thiis villainous j*eijiireit
wretch, to tt-irify otiicry for the future ; wlijch
b not my part to pronounce : But what it U,
my brother will tell you,
Alt. Gttt. My lord, ymi will be pleased to
remember there are two Judgments.
L. C J. There are so, we know it very
well, Mr. Attoniey.
Ati, Gen. That which was tried 6rst, was
•bout the consult about the 24lh of April ; w c
de«tre thijt some (tarticular mark may be set
ujM»n that day.
Then the Judges consulted a little tosfether,
ami Mr. Justice Withins pronounced the sen-
teooethiis:
Just. Withins, Titus Dates, you are convict -
InI upon two Indictments for rerjury ; I say,
for Perjury : J must repeat the word twice,
because you are doubly convicted ; one of the
greatest oflcnces that our law hJis cognizance
of; it is so iu its own nature; But your |ier-
jury has all the ag^g^ravations thai can be
lliought of to heighten it. If a man kills ano*
ther with his sword, and there be forethought
tnaliee in the <^se, he is to be hanged for it :
But when a man shall draw innocent bliH'd
upon himself by a malicious, premeditated,
false oath, tJiere is tjoi only blood in the case,
but likewise perjury, corrupt, malicious per-
jury ! I know not him' I can say, but that the
law is dtfective that such n one is not to be
hanged. For, if we consider tlioie dreadful
etTects which have f« Unwed upon your per-
jury, we must conrlnde our Uw defective;
they are such, as no Christian's heart can think
t*L without bleeding for that innocent htocHl
whidi was shed by your oath; and every
knowing moo believes, an<t every honest man
grifiTts for% God be iha&ktfd, wu eyc» vir
L
'^ First, The Court does onler
*^ that you pay XOOO marks
♦» Indictment.
** SeconiHy, That you be rtripl of (
*' C^anooical Habits,
*^ Thirdly, The Court dneantranl, '
** do stiind upon the Pillr-v * f m
** Finory, here l>etbre ^ 'T-l>il
** gate, upon Monday tj , Wto?*<
** time, between the "i n ; > i ^ 1 ! .
** with a piii>*rii'.tr . M ;
" must fir
•'theCou;
'* log your crime.*' And tbitt t» u^iii*
first Indictment,
** Fourthly, (on the Second I
*^ upon Tues«]ay, you slmn stmid
*' and in the Pillory, at
** change in Ijundon, for
** hour, between the hours ci iweJi
«Mwo ; with the same inserifitkti.
^^>dn«d«|U
. wgate.
V %!bt uiAdt d
•* You shall upon
•* whipped frofii
*• Upon Fridj*y, }
** Ne«^-ate to
•* the conunon 1
Bitt, Mr» Gates, w^ c4iiii<»l but rtmmKk»^
there were severtvl narSitfuUr ttmes too swvf
false ubout' otni thei^nra, ikS aiiQtiat €09^
iiwmoralionai, ih" - ^ b^ known to all fi^
pie as long as v <• ba?e laJrea ipedil
care of youfoi um .*..,. ^yiA pntnaUmmia*
♦* Upon the iS4th of A pri! every y«ar, ftslaif
'' OS vou live, 3 sluid am IM
** Pillory, and • ; ury, ai TylMl^
** jitfl opp^NMtQ tf» ik^ gullawa, Isf ^
teri
»7]
9TATE TRIALS, l James 11. l6S5.— /or Perjmy.
fish
^^ 4iptoe of an kom-^ betweeu the hours Qi^
** ten And tirelre.
> You are to stand upon, »nd in the Pillory,
"here at Weslmitistfr-haU gate, every
*• 9th of August, iu every year, so long &s
**you live. -And that it may be known
*' what we tt»tafi by a, 'tis to rernrruben
** what he swore abuut Mr. Ireland's be-
*• mg m town between ihe 8th Bud 12lh
•* of August.
You «re ta stand mion, and in the Pillory,
•* at Charing'-cross on th« 10th of August,
•* every year, during your 11*1% for an
*• l)Our» lit ween ten axuf twelve.
' The like over-agatust tlie Tei!n|>Ie gate,
upon the 1 Ith.
And upon the 2d ofHeptemlier, (whipli is
** another notorious time^ which yau can-
*« not but be remeuiber'd of) you are to
** filand upon, and in the Pillory, for the
^* spaice of one hour, hrtween twelve and
** twOy at the Uoyal £.v- change : and all
"this you are to do e?ery year, during
*« your life ;* and lo be committed close
^ prboner, as long as you live."
1 1 pronounce to be the Judgrneut of the
upon you, for your offences. And I
tell you plainly, if it had been in my
'to have carried" it further, 1 should not
i been unwdiing to have given judgment
^tf^aib upon you ; for, 1 am sure, you de-
i J, Mr. Attorney, we will take care^
I Clerk shall distinguish the Judguieutii
Intriefl.
hen the Prisoner was taken away.
Ifter ihe Revolution, Oatea applied to both
I of Parliament for relief ngatufit tbes^
DcnlB and the Verdict which bad been
Bed against him by tlie duke of Y^ork :
rtbeCas« atp, V25, of this Volume;) of
cb application!! the fblloiving particulars
ar lu tne Joumab :
larch 2ath, 168P, Justice Dolbeti, one of
Justices of tilt: Court of Kind's- Bench,
unto the House of Lords threi^ Writs
, Rex iTerfitf Gates, Hex versus Oates^
ivrrftti Oaies. Ou the i>th of
iL, tLe House, upon reading the Petition of
\ Ofttes, praying a ^iiy uiay be ajumioted
Iheai'iug counsel to argue u()on ht» Writs
'Srror, ordered that counsel should he heard
It appears by the account in this CoUac,-
I of the Trial of Richard Baxter, on the aoth
[ibis satjie montli of May, lti85i that Oates
I then 5jtanding in the JHilory in New l*ia-
^yard; and in Narcissus Luttrcirs MH.
pt Relation, Siv. it is saiil, under tlute Au-
llib, ItiS^, ** Tilus tiai** stood in the
at Charing-crois, according to auuual
on the 18tli of that mouth, whereof Gates wit!
lo cau!9e timely notice to be g*ven to ihe At-
torney General, On that day the Hmise did
not sit, but on ihe 32d, an order w}>s inadtt
for Ikearing the Errors ar^jiKNl on the Stith,
on ivhieb day is the folli*\ving eulry in th«
Journals : ♦
This day being appointed for hearing
conuseU to argue the errors in Hie writs «>r
error brought inio this Houi^e by Titus Oates,.J
to reverse the Judgments given against hitai
ill the KingVl>encb ; two at the suit of km^i
Cliiuies the second ; and one, a judgiaent at|
the isoitof the then duke of York ; the counsel!
of Titus Gates appeared, and were ready all
the bar ; but no counsel a|ipt»ared on t!i(t {
kind's tiebair', to maintain the JudgineuttJ
against him ;
Whereupon Thomas Bales, solicitor f«ir 1
Titus tJates, being sworn at the bar, deposed, I
** That he had served several orders of thia]
House made in this ca</* upon Mr. Attorney |
lif-oerai, to give hira notice that the trial w^i
to be \ and the last order on Ihe 2 Uh ot thite ]
instant June, for hearing of ibe cause this day :
and Mr. Attorney said to him, that he heliev^ 1
be ©ould not come,"
Then the Ht»Ufte beard tlie counsel of Tiltii i
Outers, to maintain the errore assignee!, ami to \
make good their exceptions ru point of law.
Which ended ; the coonsel for Tilue Oatci ^
was called in ; anil com man (fed by the f louse,
to set down in writing what argument.* and
exceptions they hatl this dav made against tb<
Judgments, and drliver tlieni to the L«»rd
Chief Justice of the King^s Bench to inorioMT
morning.
On the next day the Lord Cliief Justice of |
the court of King's Bench acquainted tbo
House, That the counsel of Titos OUU's bad
dehvered to hitu, in writine, tlie E?cceptiont,
they made yestiTday at the oar, to the writs of»'
error^ between Titus Oiites and the king.
Whereupon it is ordered, That sir Hichar4'
Hoiloway and sir Francis VVithius t)e, and are
hereby, required to attend this House on Sa-
turday the 4th of May next, to give their rea--
sons or grounds for their judgment giveit^j
nguinst Titus Gates in the court of King's
Bench ; and that copies of the points insiste^l
upon by the counsel of the said Titus Gates ba^ I
herewith s€^nl, to be considered of by them ;•
and hereof they mav not fail.
On the 6lliof May the House order, that'
they will hear Hoiloway and With ins to give
their reasons or grounds l<H' their Judgintitt*!
given against Titus Gates to-morrow, Tbia'
onler was continu<^ from tiuie to time till thu
24th of May, uhen it was oi-«lercd, That to-
morrow the House take into coosideratiuo Ti« Al
tus Gatcs^s thr^e writs o terror, and that Hollo* •
\tay and Witbin^ should nttend.
On the mormw a j»rinted Paper was brought '
into the iloijsc of L(»rdv, which was dispprseff^J
abroad. *f itu** G^itc^ being cfdied iri» vvjis a!tked
by the S]teaker, W hKher hednl o\i n this paper f ^
Aiid hctt0swcred« li#4liil own U)is paper. Tbi
»
1319] STATE TRIALS, i J^mes IK i6S3.— Tri'fl/ ^ TduM Oatn, fll
fluestion bcin^ put, Whether the paper owiieil
this morning Dy Titxia Gates, at the bar, shall
be noi¥ readf It was resohed in the aflir*
mauve.
Theo the said Paper was rea<), as follows :
<* The Case of Titus Gates, D. D. humbly of-
fered u* the lentler consideration of the
Ilil^ht llonuuralve ilie I/ords Spiritual and
Teinporal, aud CoiumoQs, in parliament
aaaeinhted.
" The said Titus Gates, in the year 1678,
disGOvei'ed a liorrid l'o}>i^i coospiracy, for the
destrot'tinn uf the lute king Chdries 2, his pre*
tctit tuu^t'^My (then putifH^ of OiiUti;e.) and the
Pr(»tt.-klfiiit (<-li|;i(in \%ttbin titt'^e kingdoms;
and pn»s I vl it s,<i iiiiv, UuH stvtnil parliatnetits
and liouj^^ <d i-htt**!:. ittffuri? whottide tj^ve Iiih
te^timotjv. d"iajt.*»I Ihitr Inditf of it, hy puhlic
Tfiics, mid ihr ciiudeiimijhon of i^^veral of the
roDspiiators, ii€cu!>ef1 not nuly hv turn, li;ii Uy
several other wttuejises who liad ttUo a koow*
ledge of the Kuid nmi»p]ciiry»
'•^ The House o! Lords, heiiitr ^usiide of the
sreat ijefvice of Outes, ^^m; bitii tiieir thanks
m a most pohlit-i mruincr ; aud Bddre-.,s«^d kin**-
Charles the 2d, ti» ^laot liis lo^al prouriiuu to
the buid Uati^s, and lo ^jve Iipui h sidj«isiiuc<*
till the iiarlianicnt coni^id»'red id a revvitrd >«utt-
aldt- lo i»is ^reiit und puUiic Nrrvice to rUt? kinif
atid kingdom ; and lUri't^ ufdenm day** of tust-
injj ivcre proclainitd^ at the r^uest of three
fiucces&ive parkum«fni&f to implore God*s na-
aistanre in the foil ikiid fartlitr discovery of
the villaiuuU5 mac lii nations uf the Fopii^h party .
'* Tlve said Gates di>.Covered ihe traiten>u«
corrcrspoiidtiicc whicli Col(i;man hidtl with Le
Chaise (coolt-ssor tu the Freooh king^,} which
l^ave hotli Houses of Parliament tall t^atij^lac-
tioii of thf L opish pint ; and other tetters were
produced by a person of quahty, by which the
^overmueitt was ^^ilistied of the under hand
dealing^ of a ifi-eat minister of state at I hat time
in order to procure a great sum of money,
toputOiTthe parliament. All which difl still
jusiify tli* said Gates, and verity the truth oJ
jhlb diucovery,
•* He apjiL^ared a witne^is at the GUI Bailey,
against \Vhi«e3>read, Fenwick, Ir.-iand, I'icker-
iug, and Grove, 1? Dec^ 16T8, White bread and
Fenwkk "ere not tben tried ; hut flickering.
Grove, and Ireland, were tried, against whom
the evidence was su J nil and jdaiFi, tliat they
wpre all three convict* d ujio » the testimony
of the b^dd Gates and JVIr. Betllt/c, aud were
executed for His!:h Treason.
" At the trial, two thinffS were ohjt^cted
against Gates's testimony : tirst, that he swore
he Wiu present at the consult ht Id ut Ijondon,
April 24, 1078, when the J e* oils a Hedged he
was ui>t there, hut at St, Gmei s ; hut, nothing
beinjf offered to pruyf iheictif, (his objectioii
was looki'iJ up^Ji as vain and fri»ohiu»»
** Tht* Htn0int ohjectijii was, That Gales
•wore, Irelaod wtis in town l)etween the atb
Aud r^th of August} (uul ilny aUedgeJ^ hm
m^
,^
:<^t
K'^^^
WM oat of town all August : to Chi* Mr i
laod produced EUenor aitd Aam^ Iraiiiidli
testified, he set out t<«r ^tsifiiniihi/rtbeitfl
August llJ7iJ; one Harrii^on tfTitftrrrj, ftr s
Mr. Irebndouthe 5th lil '
aud was m his companv i
fordshire ; and Air. Uimurd %u
Ireland two d«>s after St, Bar
aud the 9th of oepterrd>er» in ^i
** lu answer to which, Gait-. ]
heiog in town gnat |*arl cxf A ^
testimony of Mr. Bedlue and *'v*' ^-
late servant to the atbresaid Cruv r
fied, she liaw Mr, lichmd aboiit th^^\^,
gU!tt at his own door m Rufiseit St«"*^^
upon the jury found Ireland jftL^ -^X'
h»id ehiefjustica^cro^ told ilieii» -^^«
* done like honest geutlemeti m
* lestantH.*
*^ G leu appeared at tlie GW
June, 1679* when Wlntehr^ad, Fc ^
court, and Turner J' ind ^^
tried for the same ^ ; «
olijectii»ns were niaile la ( Ki,tr?ti% i
as at tlie former trial ; vidtUceU
was nut in town at the 'v
167H; nor Ireland in t«>v
8ih aud l2ih of August, n^, *,,^ ^.
her fullowm^*
*• For uuikioe gootl the tinrt oljt^'*'^!
produc«*d a tjreat tmniber of bo^^.*^A
G .era. »s Martin Hilsiev, P.irrv *i^^*A^^
Ciifford Palmer, Cox Bilhiiif, to-^^A/jj^
John Hall the College huiler, d^i^^ * i
of Ihe Coletr*^, aud a lay hrotliet ot tl*<*ii
t!ie?»e all tegiitie<l, that Gate>« w^'tal^Jll
all Aprd iiud May ; hut the «
rnliculoutS, and the w^iie^^ies
uianai^ed aud suborned, (he coytt Jn>4]Ui
no v^iue u|)on thetr te^tin^oay : hui, t
falsehood of their testimony iiuaht i , ,
prove (hat Dates was in ro\in, tlie ctf«ut»^fi
ihe king pro^luced Mr. Walker jin agfd ai»i
nister of the church *X England, Sarah hm^
M\%, Miiyo, l^Ir. Page, sir Hichanl \^^\t*,
John Butler, Wilham Smith, art
Clay a Rouush priest, who were h^i
to Gates's bemg in town, ei^ecpi sir Kj^i
Barker, and he testifieil wliat hi* aen^
Page and Butler had tohj hiiti ; whtchgrn
great satisfaction to the court atid jury, aoiil la
Gates was set right as to that point : hot u to
the second ohjectton, which W3t«, (hat Irrlaii
uos out of town all Autrn- ' ' r.^ ilM
Gaies w as faUe in thai i \ |ir>'
ducetl several witnesses imu nt >»[^Li>>[d»hin|
to prove Ireland there: the Udy Houihcutto*
U tied. That she saw him troo; •»- *»■ -♦ i'-
gu^t to the 16th; and Mt J'
6tli till August 9th; and Mr
cot tVom August 3ril (ill Am,
Mrs. Harwell and her dau^ ht<
saw him on 44ui;ust 17th , but Uim
widiin the compass of the lime a:
Giites. Against ihewe, Mr B
and 8arah Paine. And som*.
txial| in came Mr. JcaatKoiif wAio UfUf'fS
J
STATE TRIALS, l James II, l6S5^/or Pnjury.
[132«
\r* Iff ) And in Aii^ift ftt Lnrnlon ; fttl
ferthroirB tb*f te«tmiony of Mr«> EU
Inil arut Mnt Anne IrrTaml^ iind the
lthc<vt!i« all l^ii(iisti», aiitl leUtious of
ihL Tlie tr^timimy of Sarab Paine
BQCK'cnt, ati<t «%ttbuut uny loanuer of
I that thu couit arui jury set a g-reat
r V- T • jt)ent*e» Thus was that ob*
I of June, 1679, at the trial
irne^ Oatei^ appeared at the OUl
the Hi. Onier witnesses ap*
itn upon that point of time and place ;
court observed, • that they were
in trstsmonj, and had improved
'«;' htit the wtne<*se9 produced
• ! . were so pbin in their tcs-
1 t. Omer boys were not be-
liisiMiuit at all.
tluke of York, Having a great in-
fron kiiij^ Chillies r2, as atsf.t several
r the Popish parly, difl prevail upon
kfforthe «aid <_hitc^ to be indicted (or
in two several indictments, 0 or 7
N 1i* hull gfivfn his testimony con-
i b Plot; and brought the
r I « K Olh and 9\\\ of May, 1685,
^af kiu^ James $ ; and pruduct'd
liesses, with the addition of some
t)t all Pu pistil and bred up at St.
rxceptiog' one, wh^y had his education
M;r*ii ; he was* turned Protectant a» he
1^ and was made a minister of the
!' " ' i! by the bisbop of 8t, Asanb,
Oiites prwUiced tivo, Mrs.
Ml .*tMn» Butter, wbo were positive
ing^ in town in the beg-innini^ of May*
and Mr. Walker the minister (tfie
d oboTc tfO years old)» through
ive of time, could not hv so posi-
the year ; and Pa^e couU not b*; po-
Ih hy'wvj; it) fear, by reason of the lord
t H/s browheatiog Oates^s wit*
I I honourable peers of tbis
a teotify . llie counisd perverting the
Mild the lord Jeflenes appearinu so
li**** enemy, and no counsel daring to
rfHitc^, he wag found g-tiilty of perjury
tir^t ir»dif tmeot^ wtiirh did relate to hfs
bwnui April und May, 1678.
D the 9th of May, J 68.5, Oates was
m a second indict nifut of perjury;
it wa* nlleilired, That Ireland was iiot
Nftwwn thr Bth and 1 'Jtb oi" An^rust, a*
i\\ VII uni It (j or 7 y€s*r« lief<*re; for
* H rd jMrs, Anne Ireland and
/ Ellen or Ireland, who were
iitnc to Mf, Ireland's jjoinj^ out of
m\\ 13th. 1678; bur a third .vjincNs
\M^ did plainly cMitt hIicI ihcir evi-
M her name wu« Utuldle, which was
by the caiiri; then one Mrs, Quino
Ki, antitlirr Papint, ;md the lord A%loi» \
^ ' itive, but only as to I he
Mr. Ireland ; but i»ir
iiir i u.r; positive from thv :J*I to
An^uj»t^ aud several other wit-
nesses trcre produced ; hut theT eomtojr net
withm the com(>aiia of time alledg^ by Gates,
they are here omitted.
*' The distance of lime being" such, that
matiy of Oatcs'i witnesses wei-e dead ; as sir
Richard Barker and bis brotber Mr. Barker,
Doctor Tonjrue, Mr. Beilloe, Harah Payne,
Sarab Ives, William Smith, aud Mr. Walker
the minister, are dead ; Mr. Jenuisnn was force^l
to tiy into Holland, li>r fear of being prose-
cuted *, so that Gates, by reason of the death of
8arab Payne and IVlr. Bedloe, aud the iromg of
Mr* Jeni^^an into Holland, liad not the beocht of
thetr testimony f and was convicted of the seciJod
indictment for perjury.
*^ The aibresaid indictments be hath removed
into the Lords House, by writ of error; and if it
be the pleasure of this honourable House to
examine into the merits of the c«u«te, be can
produce three witnesses yet alive, that willjua-
tify his being in town, at the time the Si, Gmer
witnessrii swore him to be out of town j and be
can produce Mr. Jemiiion, that can prove that
Ireland was in town in August, 1078, which
cnntradicls all the StalTordsbiit* witnesses. And
tbe said Gates humbly conceit es, that the testis
mony oj* 8arah Payne and Mr. Bedloe may be
used on his behalf « though they are dead ; and
also the testimony of those who are dead, iliat
have proved him the said Gates to have bm
in town, against the impudent perjuries of the
St, Gmer v* itnesses, who si wore him out of town
April and .May, 1678.
^^ Tbe Papists themsekes having^ jtistii)ed
Gates's testimony, by their open and avowed
violation of our laws, liberties, and religion, and
fxecutiiig- those tbinj^s in ihe reij^n of the late
kin^, which be did discover tbem to have been
contriving' in the reijfU of king^ Charles 2d,
which was the sum and substance of his testi*
tnony ; he hopes the repnialion of St. Gmer*s
witnesses, who were bribed with places and
offices in tbe army, and had sums of money
£riveutoibem, shall not prevail with thi^ House
from setting aside the Judgments brought
before your lonlships.
*^* All which is humbly offered to the consi-
deration of your g^ood lordships and your
honours of the House of Commons, whether he
oujjfht to have utulcrcrone such a villainous
judg-ment, or been found guilty of the aforesaid
two indictments.**
Ailer a lonjr debate, the question pruponnded
was, ** Whether tliis Paper, owoed by Tttus
Gnres this day, doth contain matter ten«lin|j' t'>
the breach of the Privilejjc of tlu> Honsei'" A
p *ri was put, ** Wiielhcr this
.j (now) put?'* It was resolved
ID iiif aMirifi.r ivi%
Then Ihe main ourslion was put " Whctlwr
thi»» Prtpcr, Mwnetf by Titu< Gitc« tins inoru-
iiiUf, doth contain mutter tending^ lo the breach
of tbe pfivilcj^e of this Houici"* It was resolved
in the atfirniative.
Leave was jjiven *o siirh lords as would^ to
enter their di«ieot»; and accordingly th««
^
^
I
liifM]
lords foUowtnup do eat«r tbc^r di^seotSp in lUe^s^
Teftsoq»e|i8umg:
** Wewhowj onrnp^ arc undenvritten, having
been present at tlii^ cieLatc o\^ the matter men*
tbtied in the vote above wrillen, concerning a
printed Paper owned by Tttu^ Gates ; ajid the
iju^tion being. Whether the same doth con-
tiiin matter in it which is a breach of the pH-
fitege ot this Uousc? Which was resolveu in
the affirmative. We do dissent ftom and pro-
test against the said vole, for the reasonii fol-
towio|^ :
1. *^ For that the matter resolved to he a
treach of the privilege of thii House ii; not
plainly and distinctly expressed in the said vote,
15 we humbly conceive it ong'hl to he ; nor
doth it appear therein what parurular privileg*e
of this House ia broken by any matter contained
in the laid Paper ; and thailhereforc this vole
c^n he of no uae, to support any privileaje of
Ihia House, or prevent the breach of any of them
for die future.
*i, »« Because the said vote may t^nd to the
diButuoQ of both Houses^ which, we humbly
Ciiuteive, may prove of dangenms eonsiM|uence
to the king and kingdom ; ue apprehending
tlie whole lirift of the said Paper to he, in ofder
to huve relief in a legislative way ; and ac*
€ordin£;ly the case and prayer is directed to
both llon&es*
3- " Because tliis day l»eiojar apJ»oiuted, by
prder of this House, to have tlie opmiun of the
jud^ on the writ of error in the case of the
nid Titus Gates ; and the said judges attend -
iiiff accordingly ; ne did think it proper that
this honourable Huu^ would have heard their
opinion in the &au] Uiuse; and thereupou have
(acuordiug' to the usual course of othtT courts
of judicature in such cases), proceeded to sen-
tence before the taking into consideration the
said Paper lulrodueed hut this morning itiiothe
hou^e —Bolton, 1Iacle«(ield, 8tamibrd, F.
W'hartoo, Comwallis, Sydney,"
Next, the two orders for the commitment of
Titus Gates were read. And the question
being put, " Whether tliia Heuse agrees to
these orders?'^ It was resolved in the dJt-
firmativc.
The said Orders tidlow:
** Oi-deredjby the Lords spiritual and tem-
»ral in pailiaiiicnt asspmbled, That the cfen-
llemaa usht r of the hlaek rod attLndin^thi^
Hou^f his deputy or deputies, do forthwith
convey Titus Gates in sate custody to the
prison of the? King's Bench, there to remain
during the pleasure ofthi^H House, fur publish-
ing and owning a printed Paper, con taming
matter in it which is a breach of the privilege
of this Hou!>e.
*^ Ordered, by the Lords spiritual and tem-
poral in parliament assembled, that Titus
Oatei be, and is hereby, cummiited In the
Marshal of the Marshalsea of the King's
Bench, there to relmain during^ the pleasure of
tbii Hou|e^ for publi^iiog- and owimig a printed
Paper eon^"''^''"'^ '^^ntleriiiiL,wiiiichitW«il|b^^-
of the or this house f BQ4^li||pii|in
jyianihal 01 :.„ a^slialaea do (leuaboa»Kfi7an<
cordingly/* ghi^ *'
On ihe amb, Gates pmenid to the tal*"^ ^
of Lords the following Petkioii ; "**
*• To the right honourable the l/mU i
and temporal in the bi(T^h court oif |
ment assembled. The must ^
Petition of Titus Gates, D.D.
" Sheweth ; That your petilKn>«f*t
dioary punish mentx ^'-^ ' ^ '-" ^^tn
heavy upon your p xm%\
mercy of God that ^:.^fi
senses ; and your [ ^ cr ha4 m\
a veueration tor yon •, nitl
so far from saying or do a.
which might in the Ic
ri;^hts and privilege* of i
that, if any thing be iu^
petition which olfonds yaur
ceeds from ignorance or iti
humbly begs your I . ' "
** Your netitionti
}»oor lordships, in ytur
doms and compassion, t
his coufinemeut^ being
under your lord**hIps' dis u}}caittii<
any account wbiitsoevcr.- ^ . Uatls,'*
The House, ui>on this, Ordene^, IW
Gates should he brought to tbe Uit . t;
his siubmission to this House. Ai
Marshal oftheMar^haUva of tJieK I
do forthwith bring Titus Oat*^, t»ovi la 4il
custody, to the bar of tbii» House.
On the 30t}i Titus Gates vras brought ro te
har; and having kneeledi waii tobl, "Tboi
were exceptions taken at bis stUin;; hum^
D. D, in his petition.'* He «aid, *• Tl«u ^
is Doctor of Divinity, and had hi» IK|^ tt
Salamanca in Spain." Ttieu he w«» caa^
manded to withdraw. The Hutt^» iinoa riB-
^ideralion, called him to tbe bftr i^BSii. k^
he was told, ** That ibe House rtjquirni Mmm^
strike out the ti*o D. D, lu his in
said, '* he could not do it out of *
Ui»oci tliis, it is Ordcre<r^ That Titu»
be, and is hereby, rttitandtd tn the cUKlod}
thti mar&halof *ihe ■ > That l^
uiorrow at twelve vi House nA
lake into • ' iL^'sUu^fwiin
of error *'■ "Kue; at »birk
time all tUu Jn ■ rt**ieut. T1at«
Hiehard llollo^ mcis Wilhu»«b
attend this Houni v«^ I livM, ... .i. , ,, .i,_i
upon the occasion of TitT
the three writs of error d*^ J '
On the next day tli' 1 nU i
opinion of all the ju L
gaJity of the two
Gates, upon t!ie poii
he hath brought his viiit* ul tdrroir luto htik
House, to hu%e them reversed t
The House upon con , a»d aAif
bug debatCi had this nia u^TOfimi^
STATE TRIALS, iSAtsti 11. lSI9.-/0f Pirfuty.
ttsi$
10 it^TFrw the iwo jud^eots gWen
Rk TlUis Oitcs, in relation to the
^ Tbo prt'Tlous <}U€Stton uas prif
i
Ifi que
Fil in lljr
ih** two ptrjunts
be tiow nut f It
Then til 0 tnain
I rtverse l!ie Iwn
1 *rUu5 Oaieii, in
U was rc»ohed
ven to such lords sb wtll, to
nts; aii«l accoidiuj^ljr these
iin^ do enter ibek diseeuts, in tbcfie
r that the king's bencli^ bdng ft tem-
!. ttrA*h^ it part ortbejuilgtncnt, that
i clerk, should for his sairi
>ted of hia canonicBl and
to continue divested all his
matter wholtv out of their
toftgiiig to the ecclesiastical courts
r tluit the sidd judgments are bar-
Nuitin, and uocbristiLui ; and theie
eilents to ^v arrant the punishments
ig and committing^ to prison for life,
me rrr. ...."T, . which yet were but
' ptti inflicted upon him.
ir tii~, ;..v. it.irticalar matters upon
t iadietnaents ware found, were the
seied agninst Mr. Titus Uates's tes-
fleferaluf the trials, in which he was
» be a g^d and credibie vritnesSi
ttifiefl a|;j;ikinst him by most of the
^m^ who wtinessed against blm upon
m tbtl tbi« Will be an cccourage-
r ejifingF the like cruel,
Judgments bereai'ter,
ii tie rev Closed.
John Holt, sir Henry Fal>
f justiceti^ and sir Roltert
with six judges more (be-
i.pn f>'*'»-'*f It), for these ami
iurc U9, scilf mnly
, , . ianimously declare,
said judj^ements were coutvary io
Hnent pructice, and therefore errune'
Ujjfht to be reversed,
•cftti^ it is contrary to the declara-
«if February last, which was
I lis Spiritual and Temporal
ri Hsseinbled, and by their
M d ill purthment, nnd en-
./-'tordx of parliament^ and
1 V ; wiiereby It doth appciir,
, ...V ♦ ..,j|^ ^Q (,g reipiired,
nor cruel nor un-
vv^Mirt, Comwallis, H,
by rirtae of their Majesty's writ
Me into the Hou^e of Pecpj in
Ml a re«ord of the court of
Riog*B Bench was bmttght into (his court, Oft
the fourth of April, 1689, witli a trauacript
thereof, wherein jmlgmeut is entered, for and
on the behalf of the late king James the 2od^
ixg'Mn^x Titus Gates clerk, upon a judgment
tor perjury ; upon which writ of errors bein^
assigned by the said Titus Oates, and Issu9
joined by sir Henry Polexphen their Majesties*
Attorney General: and after hearing counsel
for the said Titus Oates, (no counsel appenring-
for their 31ajesties) oq the afilh of April lart
past:
After do^ cot«id€ration had of what wat
ofierod by counsel thereufM>n, it in this day
ordered and ailjudged, by the Lonls Spiritual
and Temporal in parJiaraent assembled, That
the said Judgment given on hi:> late l^Iajesty'f
behalf against the said Titus Oates he, and is
hereby, affirmed ; and that the transcript of tb»
taid record, wherein Judgment is entersd om
afoi^said, be remitted.
The Tenor of which Judpfment followi, to
be aiHxed to the record, to be sent b<»ek;
* Postea, scilicet, 4* Die Aprilisi, Anno Re^
* ni Domini Wili'i et Dominn! Mariae, nunc
* Regis et Iteginie Anjylia?, &c. Primo, Tran-
* script. Record, et Process, prted. inter Parte*
* prad. cum omnibus ca tangen. Prete3ttucu-
* jusdam Brevisde EiTorecorrigend. perpr:E-
* fat. Titum Oates in pripmiss. pitxsecut. dicto
* Dnmino R^ et Reginse, in priesenti ParUa-
' mcnto, a nried. Cor. dicti Domini n«gis et
* Dominjc Rcgniffi hie transmiss. fujt; pned.
* Tittis, in eadem Curia Parliamenti corapa-
' rens, diversas Cau^ias et IVlaterias pro Errori-
» bus ifl Record, et [Voccss. pned. pro Revo*
* catione et Adnullatione Judicii pned.assi^f-
*navit; et postea, scilicet, 31^ Die Mail,
* Anno diet. Domini Regis et Dominte Reginse
* suprflpdict. in prspsenti Curia Parliamenti
' prcEd* visi^ et per Curiam ibidem diliijciiter
^exHminat. et plenius intellect, tarn Record.
" et Process, prted. ac Judicio super ei^lero
* reddit. quam prted. Error, superius assignaL
* pro CO quod ridetur Cur. Pariiamenti piffid.
* uuod Record, ill. in nullo vitiosum autue(ec-
* tiv. existit» et ^juod in Recordo ill. iu nullo
* fuit Errat. ideo adtunC et ibidem conjiidera-
* turn est |>er eandem Cur. Parliameti pr«d,
* tjuod Judic. praed. in omnibus affirmetur, ct
Wbereas, by \ jesties writ of
error, return ■>'■ of Peers in
piirliament . f the court of
Kin;i*s llet), 1. ^... J litis court, on
th{'4tUdiiv of Aju'iJ, t';i9, with the transcript
thereof, wherein judgiui^ fit i^ entered, for and
on the beb rif of the late king Jaim^ the 3nd,
against Titus Dales clerk, upon a judgaifot
for perjury ; upon whinb writ, errors being as-
stl^neil by the said TiUisi Oates, aud issu«
joined by Henry PoUexO-n their majesties At*
torney Uenernl ; and after bearing counsel for
the said Tilns Oufts, (i ' ippeariog for
their ra&jfsti<fk) on the . il last past.
UfT] STATE TRIALS, 1 Iambs II
After due cODsideration had of what was of-
fered by counsel thereupon, it ia this day or-
dered, by the Lords Spirihiat and l^emporal in
parliament assembled, That the said judi^meut
l^iven on his late majesty's hebalf agaiiist the
said Titus Gates be, and is hereby, affirmed ;
and that the transcript of the Said record,
wherein judgment is entered as aforesaid, be
remitted.
. The Tenor of which Jud^ent; to be affixed
to the Record to be senttback, fbltows :
<* Postea, scilicet, 4^ DieAprilis, Anno Rcg-
* ni Domini Guhelmi et Dominse Mariie, nunc
' Re^is et Regime Aii^lice, Sec, Priroo, Tran-
* script. Reconl. ct process, pned. cum omni-
* bus ea tangen. Prsetextu cujusdam Brevis de
* Error, corrigen. per pnefat. Titun. Gates in
* premiss, prosecut. dicto Domino Regi ct Re-
* giuff, in pnrsenti Parliaroento, a pnedicta
* Curia dicti Domini Regis et Reginip, hie
* transmiss. fuit ; preed. Titus, in eadem Cur.
* Parliamenti coni|mrcns, diversas Causas et
* Materias pro Erroribus in Record, et Process.
* pned. pro Revocatione et Adnullatione Ju-
* dicii procd. assignavit ; et pc«tea, scilicet, SI®
* Die Maii, Anno dicti Dommi Ite^is et Domi-
*iiie Regime supiadict. in pnescnti Curia Par-
' liamcnti prsd. visiset per Cur. ibidem dili<
'* center examinatis et plenius intellectis, tarn
* Record, et Process, pned. ac Judicio super
* eisdem reddit. quam pned. Error, supenus
* assign, pro eo quod videtur Curiic Parlia-
* menti pr«d. quod Record, illud in nullo vi-
* tiosum aut detectivum exi»tit, et quoO iu Jte-
* cord, illo in nullo fuit Errati deo ad tunc vt
' ibidem consideratum est per eaiidem Curiam
' Parliamenti pra'd. quod Jiulic. pru.>d. iu oui-
* nibus afiiriiietur, et iu omni suu Uobore stul
* et Effectu.''
Gn the 2d of June leave was given for the
bringing in a bill to secure persons from the
prejudices which may come by the oatlis of
Titus Gates but of this bill 1 find nothing fur-
ther in the journal. Gn the same day atler hear-
ing counsel at the bar, to arj^ue ervon assigned
by Titus Gates, upon a Writ of Error brought
into this House, from the Court oi' King*s-
bench, the 4th dav of April last past, to which
James duke of Albany, afterwards lute kiii<T of
England, &c. was defendant, upon an action of
bcandahim Magnutuni :
At\er due consideration had of nhat was of-
fered bv counsel thereupon, the Lonis Spiritual
and lemporal in parliament assembled do
onler and adjuilge. That the said Judijuient,
given afrainst Titus Gates aforesaid, shall be,
and is hereby, revei-scd.
The Tenor of which Judgment, to be affixed
to the Record, follows :
• Et Posten, seilieet, Quarto Die Aprilis,
* Anno Regni Domini GuiI'mi et Dominie
* Maritc Regis et Reginee Angl. 5cc. Primo,
* Transcript. Record, et Process, piied. cum
* omnibus ea tangen. Pneteilu cujusdam Bre-
* vis diet. Domini Regis at Reginu^^ de Error
. 1685.— THkf 0/ TUu9 OaieM, [UB
* corrigend. per preefat. Titum Gain in Pn-
* mist, prosecut. Domino Regi et Dm'
* Reginae, in prspsenti Parliamentoapud W«
* a preed. Curia diet. Dotuini liegis et Dsa
< Reginse hie transmiss. fuit; pnedictTvta
* Gates, in propria persona sua lu eadem Cv.
* Parliamenti comparens, diversas Cauns A
< Materias pro. Error, pro Revocatione ct Ai-
< nullatione Judicii nnedict. placit. ad quud did.
* Dominus Rex et Domina Itegina per Henric
* Polexpheu Mil. Attomat. suum Geoenl.
< comparen. placitavit quod nee in Remi
< et process, pned. nee in redditione Judici
' pned. in ullo est Errat. ; et postea, icilicft,
* 1° Die Junii, Anno Regni diet. Domini d
*■ Dominee Guliel. et Mariie Primo supitte.
' in pned. Cur. Parliament, prsed. dicianB
* Domini Reg^s et Dominn Regioc siioe,
* visis etpcr Cur. ibidem diligenter cxuakim
< et plenms intellectis tani lUcord. et Procw.
< praed. ac Judic. super eisdem reddit qoa
* pred. causis et Materiis pro ErronbusiupciiH
* assignat. et allegat. maturaque DelibenliiM
< inde habita, consideratum est per Cur. pmd.
' Parliamen. quod Judicium prted. rerooetv,
* adnulletur, et penitus pro nullo habeatur.'
Gn the 6th of June, the House having mt-
ed, ** That an Address might be presentd to
their majesties, from this House, thai tbcf
would be pleased to pardon Titus Gales, mi
discharge uim from the remaining puoishmntt
he is liable to undergo, from the two judijmceti
of peijury against him in tlie court of Kior'i-
Bench,"
The Lord President, tlieearl of Bridffpwatef.
earl of Macclesfield, earl of Nottingham, i»^hop
of St. Asaph, bishop of Sarum, lord ^\|jirtoo.
and lord (iodolphin, were ap{»oi!ite«l t'"ntjHjLi
to draw an Address to this etiect, and re|xvt ::
to the House.
The LonI President repoited the fomi (A u
Address, which was as follows :
*^ To the King and Queen's moa exMlest
Majesties.
** We, the I/ords Spiritual and Temporal ii
Parliament assembled, do make it our bunibii
request to your Majesties, That w!ierea>Tiini
Gates, clerk, hath already received a s«TPrepfl-
nishment tor the perjury w hereof he liaiL u^a
formerly convicted, and that some of the said
punishments will l)e still continued upoo l>nn.
unless they shall be rcmitteil by your Mij<-»i.e4
gracious pardon :
** Your niajesties will ho jri-aciously [>lt**i
to grant your pardon to the said Titus'()altNt'>
disehur«re him from the reniainin«r \ml •'
those minishments, which he wiiluihtrnAa^
be liable to undergo.'*
This Address was reail, and agreed to.
Ordered, by the Lords Spiritual and Ton-
poral in Parliament assi>iiiblc*d. That the lA'i
Pri*sidcnt, the Lord (ireat Chamlfertain, lai
the earl of Nottingham, do attend tbrir Mi'
jesties, with the AddrcM (4' this HouKCM-
cerning Titus Gates.
USO] STATE 'niiALS* 36 Charles II. l6S4.—£. of Mffcc/fff^/ifv.S/tfrftf^. flSSO
ment to tlie king', reauirincf that his tnajestr
ivoulil be graciously |)ieafc'ed to grant him Int
pardon: 2. The king's pardon in consequence
of that address: and, 3. A pension of 5/. a
week in lieu of the scTeral pensions formerly
granted him by kine Charles of 634/. 60/. and
1200/. per an n. which he had been deprived of»
and which he had now again applied for, and
expected to he restored to."
Sir John Rcresby, under date December 26,
1680, says, " I dined with that excellent man
Dr. Gunning, bishop of Ely. The famons Dr.
Gates was ot the company at table, and'flushed
with the thoughts of running down the duke
of York, expresse<l himself of his highness
and his family, in terms that bespoke him
a fool and something worse; nor contented
with this, but he must rail at the qaeen, hit
mother, and her present majesty. In this
strain did he hurry on, while no soul dared to
oppose him, for fear of being made a party of
the Plot ; till, no longer able to bear with the
insolence of the man, I took him to task to
such purpose, that he flung out of the room
with some heat. The bishop told me that such
was the genenJ drift of his discourse ; that he
had sometimes checked him for the indecency
of his talk, but that finding he had done it to
no manner of pur|>ose, he had desisted from
any farther effort to set bounds to his fini-
lence.**
On the next day the Lord President report-
ed that the Lordf^ bad attended the king with
Address, and that his majesty had given
' for issuing out his I'ardon as desired.
Od the 11th of June, the House of Com-
noiis came to this resolution :
" Reso1?e<l, That the prosecution of Titus
'•* Gates, upon two indictments for perjury in
•• the court of King's- bench, was a design to
*< stiOc the Popish plot, and that the veniicts
** ffiven thereupon were corrupt; and the
**iiidgment8 given thereupon were cruel and
•-ill^al."
On the 2d of Jnly, A bill was brought into
the House of Commons to reverse the two
rncnts ag^nst Gates, it was passed and car-
onto the Lords on the 6th, on which day it
I tnere read a first time, but it was uerver
into an act, the Lonis having made
i amendments in it which they would not
jetinquish, and to which the Commons would
not agree, notwithstanding different conferences
hetneen the two Houses respecting them.
' for an account of the procee<iings in parlia-
ment, respecting this Bill, See the fiftu Vol.
-cTCobbetrs Pari. Hist. p. 289, 386.
** Upon the whole matter," says Ralph,
^* Oates, by the dint of the struggle, made a
Aift to obtain, 1. An address from the parlia-
'8fi4. Proceedings in an Action of Scandaluni Magnatum, between
Charles Earl of Macclesfield and John Starkey, esq.
36 and 37 Charles II. a. d. 1GS4 — 1685. [Now first printed
from tlie MSS. of Sir William Williams, in the Possession of
his Descendant, C. W. W. Wynn, esq. and the MS. Reports of
Mr. Justice Street, in the Possession of Francis Ilargrave, esq.]
and for thirty years last past was a i>cer of tho
realm, and a gentlernau of the bed chamber
to uur sovereign lord the king.
That tlie Defendant nialiciDUsly devising the
honour of the Plaintiff to lessen and wound ;
and to oaus(r him to be reputed and taken for a
Kbamles Earl of Macclesfield, tarn pro Do-
mino Hege quaiD pro seinso, Plaintiff;
John 8tarkey, Ksq. Defendant.*
JN an Action bron^ht by the Plaintiff upon
fte Statute, 2 Richard 2, De 8candalis Mag-
."^lAtamtf against the Defendant : Wherein the
^Inaintiff declares upon that Statute, That he is
* The M8. of this Article appears to be the
liaod writing of sir William Williams.
f The law Dc Scandalis Magnatum rests
> M three Statutes ; viz. Westminster the First
is Edw. 1.) c. 34, (as to which, s<*e loni Coke's
Hecond lust. p. <2li5, and Harrington's Ohser-
irations on Wextm. Primer) ; H Hie. 2, c. /»,
(as to which, see liarr. Obs. thereon) ; and
18 Ric. *2, c. 11.
The Stat. Wes<m. 1, c. .')4, commands,
** That none be so hardy to toll or publish any
lUae news or tales wliereby disconi ur rx^casion
•f difOoni, or slander, may grow lietwe<>n the
luoff and his people or the gn^at men of the
Tteloif and he that doth so Nhall bo taken and
bpt in priion until he hath brought into the
VOL. X.
person ilisaffected to the government, and a
disturber of the |>eace ; and to cx|»08e him to
court him which was the first author of the
tale."
And by Stat. 2 Uic. *2, c. .'», " None shall
devise or speak false news, lii^s, or otli<,T such
false tbiu'^s of the prelatr-s, diikc-i, earls, barons,
and otbir iioldes and ^'I'reni mrii of ilx* realm,
aiKl of the ehaiiccllor, trtasmor, clerk uf th«
Privy S(»al, fcte\v}>rii i.f lli«^ Kiiiif\ House,
jnslitrcs of the niie beiirli or il)i>f)tlier, and other
gn'iit (>lfi«'U's of i\w ri'uiin, anti lie that doth
.<»hall iiirui' t!iL- pai'i of the stat. Westm. 1,
c.;n."
And by Stat. 1'.' Kir. Q, <•. 11, "When any
snrh" [|jns:iii : '. i ; dt-M-riiHMl in the foregoing
"itatnt'.-si " is taken imA impriboiu'd, and cannot
lind him by who:u the sp'.u'j^ be moved, he
4U
1331 ; STATE TRIALS, 56Chablbs II. i6M^E.o/JILK€lufidiT.SUrbg, [ISSt
\vs TDajesty*i di«[ilcasiire and (lift rust. 17 8ep.
.1:3 Car. ?.'at IVaijU^'c in iltecoun'v of Berk?,
hy coiiftj'irary bet'.vci-ii Liui ar.fl sir Thc-iuai;
Grosreacr with seven more Bused in tlir De-
ri aratioo. did f&lselT. pr.d m»LcicusI%. witiooi
aoy lauiul or r€a£<:i«&b:ecaii£e, pcu«ib auu-
may be |;>Kii>hed \f\ titu a<hicf- ot'ihc roimcil,
notwitlisundint^ tin s.'atutes it Wcstiu. 1, c.
S4; and 2 Kit. CJ. c 5- '
'I Uun[;U the U.i*x-in-j Statsites lio .ret ex-
|irtn»NK L'^«:^a'i "fli'-n, _\i t it I jus bctrii U ifkii,
titat :lie|i;iii\ ir.jn.td ii u\ can. tain uii actiun
(:n Mat. U Uic. 2. c. .5, iipiiD (iie firiiiiiple n)'
law that UII nrfi'.n li(> di a statu'.p Mhich pro-
KiliiJs tisc ♦'■*i<:ir i:u ifl i.» Uh- jir« jii'iice ot'ai.o
t:.f.r, Tli«ii:;itj thr* dit^nily •»! Viscount was
not enact f d ui.c:i t)if-:»e Matures were inaile,
\it it lias iii'<rj Iiri<!< n tLat such disunity 'i< .
uiiliinthc ^taiutts, aiitl si:.<:t the Union a p<fr
of Scotland also iii-*y t4';ke adianta^r; of tbeiie
fctHtutes. See S:-;v*u»Vi Al>rlH;^niierii of tiift
Jaw of Nisi l'iiu% i:ii.\ »* Siander,' !.tc. 1.
Kmlyn in UU Ifrurnc-d Preface to the Second i
Kdition of the State Trials ^lisrhtly n:cDtions I
casc-s of Si-andaluiii 3Iai2rDatuiii, fSce in this ,
l^olltction, vol. 1, p. x.wij and Mr. Chri»tian, |
ill a Note to :} lilack^t. Comin. 124, (i:>th j
ifiition) makes some otseriatioriS upon t!iei:i.
He enters sf^mev^hat inUithe distiuctioiis be-
tween Hcandaluni Masfn^timi uiid slander of
ordinary persofisi, and hr notices that the ac-
tion fu/Scand. .^laqf. is nr«iv seldom or never
resorted to. Under ti-.e title *'Scnndaliiiii Ma{^-
nutuni," some I'-arnint; on the sidijcct is i^l-
lectcil in tlie l^u* Dictionary, edition l(i09.
tk-ii in thiri Collection soniC pi-neeediiiL'-.s in au
action de Scaud. Mc^ri. the duL^ of ^'ork
airnijist Titus Oaus, June li;tb, Uoi, p. 125,
ol' this voiuinc.
Thevt- actions vhiili lord ?T;:ri leslicld
hroii:^bt fii;.tiii.st tho CiicMiiio (ji'ui.ii-Jiiryiueii
ior pris. ijj.lij'j' liim as a s;-<litii.v- .\.iniesscr,
^c. were ji'irt ol' t:,?:: s\ stern o;* nniiual hiiil
perst.-cutiiMi by v. Itiili tlic* \> bius jinil Tciii >
torni(:nt».i' each otl. r, a:id ('i.iia^iM! ti:.:;-
coiiniry ilurij.i,'- ilif l;ii:;:r \tar.s i-f ilic uii;!. of'
ki|j;;j (.harlcs llie .Second.
liishop Burr.et tells us liia%
«• Tiic duJ:.' of liiai.r.M i, 1 rd I\;. il.-ironrrh,
and some «»ii.i is, bioi'ulitf.ci.nns otScr.i.'.lalum
Matrnaruin .'t^ain^t those \;!.o in ili** time of
our ;^ieat lu-at hiul sprJie foul thi;;.;-j of ilii m :
and y;i«*at «lain:*tre.'j iM ;c jfi^en I>y (i'»v.e(iui.'Us
an«l /.t':i!ni:s iMric:.>. An inlornijition of a lii'jfiier
iiatuif vvus :*ioui;!jt ai^:iiii>t Williams, \-i!.o,
t!io(i:j[h he was a voiibless man, yet v, r.s litr
his Zeal cboM-n .Sj,r .i;.-r<»f the Ho:lso of (Sim-
mons in t!ic t*.v<i la>t jK-.:'I.:uii(.'iiis. fie liati li-
ci-nsed the printin;^ tiiC votes, \ li-.cb Inid in
theiu Miailci-s of scandal reruii!!:^ to mnuj
Lords. Soaii intorii«ation ivas brought against
hiiii : and he upon it deinmrLiI to the juiis-
diet'on of tli*- Court. This was d'iven on pur-
pose \.\ the duke's party, tocutolftliethouifhis
of -mother parliament*; siriee it was not to be
S!ippos<:d, that cr.y lluuii" of Commors could
h:ar the puuishin-r thi- Ni.caker for obtyint;
tkeir orders.' 1 fJunict, j:m.
^.Sic- b.v Willi; ii: W aiian^s's Case ia ibif
C«j I ic t tir^n , % . D . i c: r 6 . J
I have not Ivcn ^il!«. ic- meet irirh a rtpwtof
any cf ibt*e 'ihaU. ! ut the t^!lowii»g Lctr-ti
wliicb occur in ihe Ccmmcrs' JoarcAlsshoTuT
afier tiiC Keioiutien relate lo <>ocic of tfacro.
*•■ Vcutr.s. 22 die Noveml ris 1 Guiitlniicl
Mariif. On!ertd, That lea^c be given to bho^
in a Bill to rt^irse fi o Ju' 'crnicBts oUaiDfd bj
the dnke of Di^ufuit :U ti« o cctions of Scabda-
lum .^lagnatum, caie in the Common \%m
ae&iti^t sir Trevor Williams bart. for K'.iidO/.
damages, and the other in the Kin^'f-bKich
agzinst John .Arnold, esq. lor 10,000/. ilaOMgn."
** Ordercil, That there be also a clai»e la
the aforesaid Bill, to disciiarge an actkm for
Scandchim 3lasnatuin now depending betvcvi
the cuke of Beaufort, and John DuttoD CoU,
esq."
Ii appears that the Bill was read a fir4 tinw
on the 29th of the same month, and a fccw4
time on the SrJ of January following. It «ii
then refeiTcd to a select committee, and. oo tht
24ih, Mr. Christy rei>orts from the Committee
to whom the Bill for reversing of two Jnd^
mcnts in two actions brought by the Duke sf
BoRufott, u|ion the statute of Scandalis Hag-
natuni ; one against sir Trevor Williams, bail
and the other a^inst John Arnold, esq. tod
aUo to discharge an Action df|)eudinfr bet«cci
the said Duke and John Dutlon Colt, *«^
upon the>a:d statute, was referred ; **Thilth«
Duke ln:l 'jivt-n sirTn:>or W illioms a relca«,
under hisl.aml n!ul seal, (f the Judcmeat ob-
laiL«d against him; and tl«:il >Ir. CoU wtf
contented to vididraw his order, and n?lertbe
niaiter 1=) the Diike's honour : Aiid thatlbere-
[ fore the Comnsitter hid ajjreetl to leave out of
the ];ill all matters rclatiu-i^ to sir Trevor WiJ-
iiams and Mr. (.'olt : and hadatrreed toamefid
:ho sa'iiie ac»"ordin';l\ ; an I i.tade it to r*4iic
to -If. 11. .old only: which Amendnient* be
lead in his place, vfiih the coherence, aoH din
deliveit'd the same in at the Clerk '» TaWf :
when ;ltc same were onct^ read throughout;
and al'Jcrwr.rds a second time, one b} oce;
and, ii] ()!i the question severally put thefcupoo,
ai;:iTed unto by the Itou<e.'*
' " (>nIcred,*That the Bill be ingrosscd."
Three days afterwards that parlianieot vii
proroi,^u<d, an.! it was nevtr ai;'ain confoked.
On the ,M.lh of iMarch (bliowiiii; a new par-
hamf nt in<'t, and, on the third^ of the n€Sl
month ; leave was given to brin^ ihto the
iFousc of Commons " A Bill tor revcrvD^
a Jiid:;mcnl obiaiufd a;;ain>t Jtdm Arr.o1d,
eMj." and th«' Jiill was prcMiutiil to ihe Hook
and received. Ou the 4th, it was ordered '»
bu rcaii on the morrow morning ; at whirfc
time, ho\^e\cr, I do not find thatanv tbuf
was done upon it. On the 7ih the bill vm
read a first time, and the House rettltc'i
1S3S] STATE TRIALS, 36 Charles II.
dalous definDfttory and malicious Libell, bv
them falsely and maliciously devised, traiuetl^
mod written against the Plaintiff.
The tenor whereof follows in English in the
Declaration :
' We the Grand Jury sworn to enquire for
* the body of the county of Chester at the as-
* Mzet held in the Common Hall of Pleas in the
* castle of Chester, upou Monday the 17 th day
' of September, Anno Domini 1683, having
* heard his M»esty's Declaration, &c.'
The Plaintiff avers he never was disaffected
to the ^vernment nor a disturber of the peace ;
nor ffuiltv of any of the matters contamed in
that libell against him :
Whereby the Plaintiff is much wounded
m hit honour, hath lost the grace and good
opinion of his majesty ; And by reason thereof
divers false rumours and scandal Is are stirred
and divuli^ among the nobles and commons
of the Plaintiff, and many discords may thereby
arise :
Contra formam Stat ad damn. 10,000/.
The Defendant pleads the Plaintiff ought
not to have or maintain his action, < tjuia dicit
Vi|uad ad sessiuncm Cestr' tent, apud Cestr'
'in comitat' Cestr' in Communi Aula placit'
That il should be read a second time on the
Borrow uioming. I have not found in the
ibomalsany further mention of the Rill until
Thmadav the first of May, when it is entered,
that " Blr. Arnold desiring leave to withdraw
Us Bill for reversing the Judgment given
•ninit him in the King's Bench ; Ordere<l,
Aalhe be at liberty to withdraw the same
•ooordingly.*'
The second session of that parliament com-
menced on the 2nd of October fuUoiving, and
Qa the 18th of November, the House of Coin-
I Oidered, That no more private Bills be
_lit in to this House Uiis session until such
are already brought in or ordered to be
Bronrht in be dispatched, except a Bill for re-
t«rang a Judgment against John Arnold,
mq. in the King's- bench." On the next day,
** A Bill for reversing a J udgtnpnt against John
Arnold, esq. in the Court of King's- bench'' was
preaeoted to the House and received. On the '
Slat it was read the first time, and ordered to
be real] a second time.
On Saturday the 29th it was ordered to be
read on the Monday following, which was ac-
cordingly done r and, upon a division, the bill
was ordered to be ingrrwsed. On the fillh of
December the Bill passed the Commons, and
was ordered to be carried to the Lords for thi ir
eoDoarrencej which was done. In the House
of Lords the Bill was read a first time on Sa-
torday the 6th of December, upon which occa-
non a debate arose whether the Bill should be
vneoCcd. This debate was adjourned to the
mlowiDgTueadav, and it was ordered, That
•D the Lords be then summoned to attend. On
that day the debate was resumed, and the Bi|i
iGSi.'^/orScandaiumMagnatuni, [IdSl
* comitat', prcd' 17 die Sep'ris 35 Car. 2.
* coram Gcorgio Jefferys mi lite et baronetto
' uno servient' dicti domini regis ad k>gein
* justiciar' diet' dom' regis Cestr' et Johanne
' Warren, armicer, altero justiciar' dicti dom'
' Regis comitat' predict,'
The Defendant and sir Thomas Grosvenor
and (he rest named in the Declaration with
others, ' debito mo<lo secundum leges hiijus
' regni Anglite,' were impannel led and returned
to be Jurors of the great Inquest at the said
session*!, nnd were then and there sworn and
char(^(>4l to iiicjiiire for the king, and for the
body of* the county of Chester, of certain-ar-
tides to til em there delivered by the said
justices.
And that they with the rest who were of the
sai<l inquest, * Secnudumjuramentisui debitum, ,
' et secundum evidenciam et testimonium eis
* cxhibitum,' of the Plaintiflf, and acconlingto
their consciences, and to preserve the peace in
the said county,
Presentaverunt (did duly present) in the Eng-
lish wonls in the declaration mentioned as was
lawful for them to do ; Absque hoc, that tjie De*
fendant is guilty *de premissis, ^c. in narratione
, predict' superius npecificut, et ei ini|>osit' in
, predict' Comitat' Berks seu alibi extra predict'^
There is in 3 Mod. Rep. 41, a short Note
concernincf a collateral i)oint which arose out
of an action brought by lord. Macclesfield
against sir 'I'homasCirosv'enor, foreman of the
Cheshire Grand-jury, by which the present-
ment of the earl had been made. The ivord
* tedious' appears to be twice printed instead
of the word ^ seditious' in this Note, which is
as follows :
" The Plaintiff brought an Action upon the
statute De Scandalis Magnatum against sir
Thomas Grosvenor, for that he being foreman
of the Grand-jury in Cheshire, spoke these
words of the plainliff, ^* He is a tedious man,
and a promoter of sedition and tedious ad-
dresses." *
«The Plaintiff desired that the Defendant
might put in special bail ; but the Court would
not grant it, and said it was a discretionary thing,
and not to lie demnndul of right : it was de<
of Xortblk, unless oatu mad<
nied to the Duke <
of the words spt^ken.
** Tlir Court therefore ordered common bail
to be filed."
In the MS. " Hisiorical Account," &:c. by
Narcissus Luttrell, in the All Souls' Library,
is the following £ntry :
'< 1683. Oct 4th. The Grand-juries at the
Quarter Sessions for the county of Sussex,
held at Midhurst, and for the county of Ches-
ter, have presented the mottt considerable pf
the Whig Party as dit>loyal and disaffected ;
amongst whom are some m)blemen, divers
knights and - esquires, and many gentlemen^
who any ways faror the Whig Pftrty."
I duke of Monmoutb ;* that he is no favourer of
Fanatics, aud iion coiifunuisUpreachers: tbfttbe
13S3] STAT£ TRIALS, 36 Charles If. l6S4^E.6fMaccIe$Jleldv.Sm'key, [I33S
' comitot. Ccstr'modo et forma prout the Pluin-
' tiff declarefs vel aliter vel alio mudu f|uaiii
* tlie Defendant liath alledged, et hoc, etc'
The Plaintiff demurrs specially : For that,
1 . This Plea amounts to the general issue
only.
2. Thai the Defendant ought to hare plead-
ed the ^neral issue.
3. That tlie traverse is inirnaterial, repug-
nant in itself, and argumentative, etc.
4. That tlic Plea doth not auiwcr the De-
claration.
_ rn A -4 I *i M. »i_ A .1 ^A 1 -f*"" »r II Willi urar |Hr>3«.'9s>ii*u wi <s t:iuv«u.
5. That It doth not a|.i«,r that tbo matters t,,, ^i,„i,- croud are d^zzl«l *ith >^
pWled were retord«l, iior .loth the I'ltacon- ^,„, „„ ,,i^ ^„,„ , f^.^ ^^^i, ^J
elude' prout pateti>errecorduni.^ i -,. . « .. * ! .« -. »
The Defendant iiath joined in Demurrer.
The laiv hath conceiixd such an opinion of the
peaceable disfKisition of noblemen, that it hath
keen thought cnous^h if one of iliem pr4»ini>«^
upon his honour, that ho would not break the
|)eace against u uiiin. Hrotike, Tit. Contempts.
«». 2+ Ed. 3. JO. 1? Ed. 4. 4. DallouSunly of
the Peacf, cap. 117*.
17 lid. 4. 4. If a pereon %vill demand sureties
for the peace ni;ainst a {K^rsun fur no otiier
I'ause, but that Itn is in do:;ht, that that other
^rson will take him and imprison him, the
peace ought not in be granted by the court.
Dr. Coiitcmpts 6. AVheiieas other persons are
imprisoned or bound to the peace in tlie same
rase, the peer's Hord passeth, thai he will not
* The motives, circumstances, and coose-
queuces of Monmouth's progress (a. d. 161%
in quest of popularity, are related by did^erent
authors with differenlt degrees of niinuteiKsi
Drvden thus 8|>eaks of it in the Absalom lod
Acbitnphel :
" Surrounded thus with friends of ev'rj'soit,
Delnded AI>salora lorsakes the Court;
impatient of high bopi's, urgM with renown,
And (irM with near possi'h>ion of a crown.
" surpiist,
II V person ft-**n tneir eyes.
His joy concearif, he sets himself to show
(hi each side bowing |>opularly \o\\ :
His locks, his gestures, and his words he frame?,
And with familiar €»asc» repeats their naro'-s.
Thus formM bv Nature, furuishM outwitharii,
He glides unfelt into their secret hearts :
Then with a kind comp.issionating look.
Anil sighs, iH^speakinjf pity vxv he spoke,
Few wonis he said ; but easy 'those and fit,
More slow than Hybla dni'ps, and far UMt
sweet.
1 moum, my countrymen, your lostesiite,
Though far unable to prevent your-^aic:
Behold a banish'd man, for \nur dear cause
KxposM a prey t<» arbitrary laws !
Vet, oh ! th:it*l alone could be undone,
Cut off from empire, and no more a son !
meildle whh the party, though he had menaced ! -Now all your liberties a spoil are made;
to beat him. ' ' Euypt and Tyrus intercept your tra te;
1. This way of presenting is a now coui-pp, ; And Jrbiisites y<»ur snered rites invade,
and will alter *ihe old methods i»f justirr, in a | My iJuher, whom with rev Venee yet I Dtmf,
iMJitterso iiiirhly iieeessary to ilio !:<iinini>.tra-
tion of !M.<iifi', « s[)!-eiaily Ly t,r;'ril j'ui*-.'*.
'i. Thiswu\ all<rsiii»* uiLtu;)' olprev.iiiJnur.ts
nn»l tln.ir I'ornis, and inny niahlc juries Id write
.'•ny i\iUv. and malirioiis iKin*:, and iliey are
exempt froiii actions I, c it never so iUlse, m-ver
60 uiaiiriou-^.
.'}. The injured hiUli no other way to aequit
hiniself of such imputation bnt liy action : he
rannot tmverse such presentuient, shall Ik
traverse their apprehensions or th»;li iiarj»i*
the\ affirm notliin^''|)Ositi vel}, shall he traverse
their jud;;nicnt that ho ought not to he honi.d
to the p< are ? Don't this presentn.eht eoi,elu.!e
him, that lie must he bouml to the peiu'c upon
thtsc surmi^ifs :' Is the court huuiiJ hy ihis
prescntmeiit i' ran he try [<iu. trr.vi is.'/] tha: l.e
was not an athhesser tn^lr. iJooth and Sir Uo-
b(Tl(.'olton ; [that he] was notoi'thr Itrnornmus
.Tury ;t that he w:is not at the reetipt of the
* See, too, La:ii!ianl, rn, o'i.
•| See the C'ase ol" h)r(l SlialU'shury, vol G,
p. 739, of this C»)Ile<tion. Of tin: reeeption
ghcnhy juriis to kyai (hiOtrines wliieli aredis-
aureeahle to them, Dry den, iu the Medal,
thus w rites :
'J'iie luau, who lau;;ird bat once to see an arts
Atumhling t(» make the erobs-grain*d thistles
lliglit laugh again to see a jury chaw [pass,
The pricWles of unpalatable law.
(liaiiiiM iijt«» lusf, is t.-arelcw uf his fame;
Aiid. hrtijM wiih pi'tt\ sums of toreigo ^j^old.
Is i;[it\% n in lSath<h<rha\ endirnees old ;
K.xalts his enemies, his tVifuds dtMP.^;,
Am! all his pow 'r aj:iins! himself unploys.
He ;:ive-i, and let him v:>^e. niy liiriu away;
linl why shonlfl he hisuwn. and youn»lietrd\'
He, only he, ean mak(> the nation bleed,
And he alone tVoui ni} rev enj^t- is freed. [t\ts-
'i'ahetlun my ti-ars. (wiili that he v^ipM liii
'Tis all the aid my present powV snpplits:
No citurt-inlormer ean these arms aeeu^;
Tilt se arms may sons ayfuinst their fiithors im :
\inl 'lis iiiy wisih ihe next siieeessor's n ijju
May mr.K.Mio other Isiiulite complain.
^'rluth, heiii.tv, graeelul action, seldom fail;
Hut eninnion mtVe^t atwaxs will provad:
Ami pily never eeases to he shown
'I o hiiii who makes the jieoph-'s wnmgs hisoirn.
The erovvd that still believe their kmg»oi»|irK>i*.
A> ith lifletl hands their young JMessiah Ii|l^'>:
\\\u} now he;rit»s his pwgirss to onlain
AVitii ehaviots, horsemen, and a numerous train:
From ea'l to west his tflorit^ he displays.
And, like the sun, the Promised land surveys.
Fame runs before him as the mominsf-^ari
And shouts of joy salute him from afar :
Kach house riTeives him as a guanlian god,
And Cf>n«:er rates the place of his alMNlp.
But hospitable treats did most cotnniend
Wise Issachar, hi» wealthy western f '
kTE TRIALS, 96 Chables II.
I at any riotous assembly ? these are
so as they are traversable in this
is a diflerence between an action
se for a false and malicious ^rose-
person by indictment, and a con-
piracy many thinjB^ are required to
hicb are not necessary to maintain
Kin the case. As that the party is
odo acqoietat/ inde, that the indict
nd, that the indictment be sufficient
(e ar(R not necessary in case.
id Crashaw's Case, 2 Roll, 268.
I. Palm. 315.Cro.Car.l5. Latch.
!S03.
rin^ Report of the Argument of
d (probably the same who was
s Lord Chief Baron) for the Earl
afield, and of Mr. HoH (probably
who was afterwards the admirable
tice <<f England) for Mr. IStarkey,
article by way of Answer to some
t by Holt, which, I apprehend, re-
this Case, are among the MSS.
•merly belonged to sir Wm. Wil-
d which have been very obligingly
by his descendant Mr. Charles
i^illiams Wynn, for the improve-
lis Work. In the margins of se-
the pages containing the report of
gument, are Observations in a dif-
l much worse hand- writing. These
ons are here printed by way of
th the designation of * MS.' Home
kce may be noticed between the
»f these marginal Observations and
Dts of the Answer to Holt. The
he MS. Report is here retained.
r court, that caught the people's
es,
but pomp, did other ends disguise :
1 bad form'd it with intent
be depths, and fathom (where it
ent). [foes,
s hearts, distinguish friends from
eir strength beibre they came to
ows.
coloured with a smooth pretence
love, and duty to their prince,
id retlress of grievances, [please,
I that always cheat and ahvayg
rg'd ; and good king David's lite
by a brother and a wife,
ageant shew a plot is made :
tself is war in masquerade."
irol. 9, p. 395, of thisCoUectiou.
l684«f-/or Seaudatum Magnmtum, £1^38
The MS. of the Answer has no title or other
account of itself. Some passages in it might
excite a conjecture that it was a speech of
the Plaintiff. It appears to me, that there
is not any retembhuioe between the band*
writing of the * Report,' * Obser? ations,' or
< Answer,' here printed, and those of other
Manuscripts belonging to Mr. Wynn, which
bear satisfactory internal evidence of having
been written by sir William Williams.]
Term, Mich. Anno xxx? i. Car. 9. Ree. Martisy
Nov. 35, A. D. 1684 in Scacc\
Earl of Macclesfield v. Starkey.
This day was argued the Cause, befiyre the
Barons of the Court of Exchequer ; by Mr,
Edward Ward of the Inner Temple, for the
Earl, Plaintiff; and by John Holt of Grays Ina
for the Defendant.
Mr. Ward's Argument.
Mr. Ward. May it please yotir lordship,
Charles earl of Macclesfield, viscount, and
, baron of Brandon, is Plaintiff, and John S arkey
esquire, is the Defendant. This c<MT)es before
your lordship upon the Plaintiff's Demurrer to
the Defendant's Plea.
The Plaintiff hath in this case declared, * tarn
' pro Domino Rege quaui pro Seipso.' and iiete
forth, That by the statute ma«le at Gloucester
in the second year of king Richard the 2d, It
is (inlei-ed, and strictly pruhibited, lliat from
henceforth no one should he so hardy, as to
devise, 8|>cuk, or relate, of tl>e prelatts,dukeB,
earls, barons, an<l other noble and ^re:ii men ef
the kingdom of Ent^Iand, i<or of the chancellor,
treasnrer, derk of the pi ivy seal, steward of
the kind's household, justices of tlieone l»enoh
or other, or ot an^- other g^at officers of the
kingdom aiiy Ihise news, lyes, or any such like
falst hoo<ls, uliorrby scantlall or discord might
ariNO within the realm, -and that he that sfatraM
do the Same should incur the pain erdaincd m
the statute of Westminster the first. Then the
Plaint iti'sheweih, That for thirty ye^rs last past
he hulh been and is one of the nobles and peers
of this realm, and has for that space been one
of.the gentlemen of his majesty 's hed-cliamber,
and in all that time hath demeaned himself
in those places and honours with all faithful-
ness and integrity, and justly and tkitbfully
serve<l the king : Vet the Defenihmt the afore-
said statute little weighing, nor fearing the jpain
ortlained in the statute of Westminster thenrst,
but maUciously contriving thf ^;oodname,etate,
credit, dignity and honour ot the pleintiff to
hurt and blacken, and the plaintiff as a person
disaffected to the covernment of this kingdom,
and a disturber oi the peace, and public tran-
quillity, and state of the kingdom, to OBase to
be esteemed, and reputedi ami to «Mite the
toe same uoeii wo iutoiicu cuorrivcu luiu wnv-
ten to divers noblemen and peers of the realm,
and other honourable and venerable persons,
aubiects of the kiny^, then and there did openly
and publicly affirm, speak, relate, publish and
, divul^ Xnd that the Defendant by the said
conspiracy between him and those other per-
sons, in the same libell divers false fci^^ned,
and contrived and invented scandalous words,
lyes and falsehoods of the plaiatiif, \%ith a fa!se
and malicious mind to defame and scanil:;lize
the plaintiff, then and there falsely and malici-
ously, and without any lawful or probal)le
cause, to be written did cause, ami procure.
And then sets forth the tenor of the libeli in
hfec verba. The effect w hereof is, that the
persons therein named, (for it begins thus)^
** We the \rmnd jury sworn to enquire for the
body of the county of Chester," and the effect
of all is, That having heard his majesty's De-
clarati(»n concerning the late conspiracy of his
life and government read at the sessions, and
in their parish cliurciies, they conceived it hi^jfh
time to manifest their separation from such
persons and princi|>h*s,as are therein mention-
ed,, and held themselves bound in that dt«tem>
percd juncture of atfairs, to present, that they
nad strong apprehensions of danger from a dis-
affected party in that county, that is such as
did present a Seditious Address to Mr. Buoth*
* This Address is printed in the second vo-
lume of State Tracts, 8cc. from the year 1660
to 1689, and is as follows :
The Cheshire Address.
" To the honourable Henry Booth, esq. and
sir Robert Cotton, lit. and bart. being
uie piiunua, liDU uiTcn
ed. Then the Declar
that this writing cm
scandalous matter, the
with the said other jjen
and maliciously, read
to be read and publish^
plaintiff the earl neve
government of this n
the peace or public trai
nor any ways guilty <
against him in the said
those things the plai
honour and diij^iity, is
dalizcd, and lost the ft
esteem of the king,
great men, and by ret
divers false rumours
many of the peers and
and other the king's s
plaintiff have arisen a
great scandals and dist
premises, between the
men, do arise, and da
arise, to the great distu
public tranquillity of t
tempt of the king, anil
never to be forgotten) a
promoted the union, su|
true Protestant reli^u
and the only expeilien
tuate these to our pm
what the late parliamen
the duke of York, and a
provide for the defence
jesty's person ; vigow
tHjvery of the horrid Pt
TATE TRIALS, 36 Charlbs II.. l6S4.^/or Sitrndaknn Magnaimm. [15iS
fCftiMfail and gTie?ance of the earl, the
•gainst tlie form of the statute, and to
^e of the plaintiff ten thousand pounds.
8 declaration the defendant pleads,
, because he saja, that at a sessions of
boklen io the Common Hall of Pieas
wunty, the day in the Declaration
ifore sir George J efferies knight and
iistice of Cheat(»r, ami John Warren
nother justice of that county, the de-
rith sir Thomas Grosvenor, and the
•sons named in the Declaration, and
le others, * debito modo et secundum
hujtts Refirni AncMtc* were impan-
1 returned to be of the grand inquest,
« the said justices were sworn and
lo enquire for the king, and the IkmI^
•unty of Cheater * <le certis articulis
m per prefatos justiciarios traditis,'
ae the defendant and those other per-
the rest that were of that inquest,
m jurameoti sui debitum ac se-
evidentiam et testimonium eis ibidem
m de prspfato comite ac juxta eorum
tias ac ad conservandam pacem, &c.
nodo preseo tavern nt,' in the English
the declaration set forth, ' prout eis
uit,* and then he comes and traverscth,
ab»qu€ hoCy that he is guilty de prm
be declaration speci6ed, * in predicto
I Berks, seu alibi extra prsedictum
im Cestr' modo et forma prout,' the
as declared, * velaliter, vel alio modo,'
tiefendaiit has before . bv his plea al-
d prays judgment, if this action can
ined.
plea, the plaiatifT hath demurred es-
and shews divers causes. As first,
lea amounts to the general issue, and
:eneral issue in this case, ought to be
Hecondly, that the traverse is imma-
mgnant, argumentatire, and wants
hirdly, that the plea doth not answer
ation, hut is also argumentative and
Fourthly, that the defendant doth
rtb, that the matter hv him pleaded,
cord, nor doth coucluJe as he ought,
tet pel Uecordum.'
efendant hath joined in Demurrer.
his whole record, I humbly conceive
iiisaion, my lord, that there appears
Uration that hath been thus opened
ise of action for the Piuintiff, and that
cause of action is not sufficiently, in
I or substance answered, denied, tra-
avoided, by the defendant's plea that
likewise opened, and consequently
ought to be given for the plaintiff to
8 damages.
1, there are some things that I desire
0 premise in the case, and I shall
mention them, and the first is this.
t this action here brought, is an action
Domino Rege quam pro Heipso,' and
to the oninion, 4 Co. 13, in all these
i king bimidf is intertytsd mod osO"
ujiif ueciarauon sei ronn u
son, both in dignity an<l ofl
First, in dignity, he is a |
it is set forth in the dech
3. My lord, this action that ia grounded
upon the statute de ScandalisMagnatum, is an
action very much favoured in law, and deserves
so to be, as being tor the punishment of such
bold persons as raise and publish fiilse things
and scnndabi of the noble men, and great offi-
cers of the kingdom, whereby discord anil
scandal may arise between the king and his
people.
3. That a lesser thing in the case of a peer
will serve to ground and bear an action than for
the case of a private person, and there are great
reasons i'or this; the ereatoess of their per-
sons, their nearness to ue king, and the con-
cerns they have in the affairs of the Jcingilom,
are so considerable, that^n their case, ^unde
* falsi Uumores oriri poasint' this action will
lie, when it would not do so, in the case of a
private and ordinary subject.
4. Another thing I would premise, is con-
cerning the quality of the plaintiff, who is by
this declaration set forth to be a very great per*
* '* ' " * office.
peer of the realm, and
declaration, that he hath
been so for the spac^ of thirty years past and
more.
Secondly, in office, for it is likewise set forth
that be is and hath been so long a gentleman
of the bedchamber tp the king, aplace of thn
highest trust that I know of. These things
appear in the declaration, and are wall known
and not denied by the defendant.
5. The next thing that I would premise is
this : this case as it copies before the court, is
before them upon a speirial demurrer, wherein
all advantages of exception to the defendant's
plea both as to the substance, and as to form,
are saved, and to be alk>wed to the plaintiff.
These things being premised ; now, my lord,
I shall come to the consideration of the plain-
tiff's ctfuse of action, and the defendant's de-
fence ; where I shall desire leave to go by these
steps. ,
First, I would observe the nature of the plain-
tifTs action.
Secondly, the nature of the defendant's plea.
The plamtiff in this action, my lord of Mac-
clesfield, charges the defendant by the declara-
tion with these things:
Furst, that by a conspiracy in Berkshire with
other persons he invented, writ, and publistied
this scandalous libel.
Secondly, that all the matter in the declara-
tion is charged to be done falsely and mali*
ciously, and with a malicious mmd, without
anv lawful or probable cause.
'riiirdiy, that it was done on purpose Id
scandalize and defame the plaintiff, and.
Fourthly, the consequences of it are in the
close of the declaration recited (viz.) that the
pUintiff suffers m his reputation ; discords and
scandal have arisen and more may arise to the
disturbance of the peace, in contempt of the
king and the great scandal and grievance of
the plaintiff.
My lord, I shall observe this upon the matter
8
is pi rue V ; It i!> a^ a netnLli^us '
ilrvaser li» tlie it ujtx'. It ctolh |
charsj^e him Rs u tiutmij^, luuntUiious, receirer
and entiMtnitier of the duke of ^loninoulh, who
is therein »aui i* be one of tUe conspirators
•ffninstibe kiug's Viie atifl ^^oreronienti aad
Inen liti<>wisc it tloth charge him ii« a frequenter
of conventicles, and a harbourtT of ntm-con*
IbrmifltA. Tli«*!*e are tlie tiimg^s that tJiis
writtner (which the defi-ndant in charged hy
the declanilion to have nivcnteil, written, and
published) dolUcs^rry in it, aud thai in a special
DianncT Lave inrtuence u\nux tlif idiiutUF, the
earl, vvho is here liefore you* «^eking a
f etucdv* by this action, for i i i and pre*
j 11 dice beh;«s incurred hy it.
I do not «ay, that in thin case these thitt^
directly and in ttrmtnit m'e cliarged upon the
plaintirtl But L humbly cuuceiv*? ?l is worse
ihaii If it had tio done ; because if this had been
a direct and pi>sitive charge, there liod been, a
way to have put the fact under its due exami-
nation, which noiv, as it is tlius penned and
mapaged, cannot be done. If dierelore hy any
fiUional and arj^^umentnti^e cniificqiience or in-
ftt^nce, that cajn be drawn nr u^adc from thk
writuijgf as tUuA framed, it can be concluded that
ihitse are wordswhicU carry reflection iind dis-
honour upon this ^reat jK^er, tbouj^h thei'e be
^ot dir«€t and pneTtlve affit'm&tions, yet cer-
tainly they aressucH cahuiiniaiinijf and reproach-
ful reflections as will support tiu9 action : ii is
not, 1 c<inceif e, necessary titat tljtre should be
aliirinative wortk but any oblique scandal in tbe
case of a peer will bear an action.
As In tny lord of Feterbui^i's case *, as it l&
feportcd in ftlr. Htderfin*^ ReporU, fi>. 434,
Micb. 21 Car, 2, JJ U. where nn action w^
brouifht au<1 adjudgeti maintainable for these
G.*iUui trudti by whirfl
and so to caune the pi
ao^aintii the fanners a|
forendeaTourinsf by ooi
todc j
case I
upon iLie iriai tiu'V
thin^bnt only a coi
tanners of the
fact ol'«g;retit]
laid in (he tn(
court held^ tli
or agreeraent
sucb things )
and they were
The statute of S^
laws that hare
able in this case,
laWf wherever an indie
racy will lie a^iost tm^
the* case in the uatiiN
aglUn^t any one of th
ooneelve thWe w a sufi
forth in the PhiintitT^s
Now, I come to a
Defendant's Pica ; a
answer fully the Pku
excuses, justifies, IN
cau^e of acticin !iet fort]
1 coticcivc with sul
not.
I shall not take;
what a juryman
sworn in a com t of
eonusable by l'
ai^iosi such w
books that hu}4 Mum
lort]
]
f»'
■ STATE TRIALS, 36 Charles II. l684.— /sr Scandalum Mttgnaium. [13*6
Declaration, for ivbicli this mctioD is
^ by the Plaintiff'.
I, then* th«^ Defendant says, tlmt thnre
Ikssions held at Chester^ iu the I In It of
Uiere, the 17 tb clay of September imbe
ition mentioneil} Wfore sucb and such
•f naming tbcnn. Then he says, that the
lant and others by name were there hc>
f to the laiVB ot this kingdom, in due
irapauDelled and retunied to be of the
Inquest, and sworn, and charpfed uith
articles which were delivered untothem,
B said justices ; and npon eridence and
^ny to tliem i^iven concemiusf the Plain-
id according- to the duty of their oalhs«
Dcording to tlieir consciences they did
Ibe presentment, in the £nglish wor<ls,
iBeclaraiiofl set forth, as it was lawful
m to do.
\ tny I^»rd, I conceire this jastification
fpfeaded h not suSicient cither in form or
Hot sufBeient as to form, for it hath nnt
I of pr^entmentthat is usual m atl pre-
lis of Grand Juries, for it doth not say
He persons did present this matter upon
l^s. The settlerl forms of law are to be
I, and these are the settled forms la all
s, * Jttratores pro Domino Rege et
Sacrament urn snum prt^sentant.*
b, my Lord, I conceive it doth not ap-
l all this Plea^ that this preseolment
feftdeci by the Defendant ist the Fame
rttlilbehbell or writing set forth Ju the
tion. And there ure these differences
p them.
il, that which is ict forth in the declara-
r alledged in itself to be at the assizes
kt Chester iu the casile of Chester such a
but that which is in the plea, is said to be
" sesaions nf Chester in the count v of
in the Common Hall of Pleas of the
inty. Neither bath the Defendant in
plea said that this is the same "Wrilinef,
for which the action is brought, for be
have averred that, and said it was the
And there is not so little in the former
!, as at first perhaps may lie thought,
bath many jurisdictions, some by
imon law, others by grants from the
and others by statute^ and it doth not
r ihat this court was held particularly by
f these, for it might as aforesaid hafe
^ and different jurisdictions upon various
ifferent titles, it might have ita asr^izea^
t one placCf and its sessions at another* i
the paper in the declaration liaving set J
brth to be lit the assizes, and the pai»er ,
hplea, being said to be at the sessions, \
the one and the same, and so the plea
not answer the declaration as it ought to
Ktly and in terms.
lord, I humbly conceive the plea in this
oes not answer the plaintitrs cause of
f a» to the matter of it. It is true all pre-
cuts of jurors arc, and slumld be of such
in a court of justice, as that court where-
in the presentment is, has conusance of, and in
such a manner as that the party accused may havo
rec«itir«ie to tlmt court in defemlhimsctt^ by ex»
arainatiun and trial, whether the things charged
upon hint in such a presentment are true or not,
othenvise if it shotild not be so courts of jua-
lice if they should accept of ejttraTagan! pre*
sentments may he a means of obstructing jus-
tice, and of casting illegal and unwarrantable
aspersions upon men, and those reflections bo
put upon them mustremain there for ever upon
record, the worst and longest way of scanda-
lizing a man. If wards will bear an action, and
the party of whom they arc spoken ought to be
vindicated from such* aspersions, much more
ought he from that which appears u|)OTi record
if there be not a sufficient jusldiable cause.
The Plaintifl" here batli hatl a reflexion and
imputation put upon him, and is, and was very
desirous to have had the truth of this case,
escambied, whether he be guilty of the matters
charged upon him in this presentment or not. The
things are very heinous in their nature byway
ot* reflection, and if true are very ill things as
to the consequences that may attend them.
If^ indeed, persons may be admitted to pre*
sent thin<;s not properly* ejiaminable in inost
places where the presentnvent is made, or thinga
that may not, by some method and course of law
be brought into' a way of eiamination and trial,
it would cross all the* administration of justice
which proviiles means and remedies as well to
ac*[uit the innocent as to piniisb llie guilty.
For the jury ai^ highly to be favoured, and
protected by the law^ wliile they keep within
their due liinii*; ; yet if by a confederacy » or ill
practice, they do any thing that is not waVianted
by their legal poweV, they lose iheii" privilege
of favour and protection that the law give*
them.
I Will suppose with yoarlurdships' leave, on#
thing in this cose ; suppose the grand jury
here should present a thmg of wbicla tlicy had
ni> authority by the taw to make a pretj«iitnient,
would an action He against them for it, yea,
or no ? I oonceive it would lie in that case, for
the law takes no care to protect any pcrsom
from actions for what they *'o by colour of
their office, but those that Iteep within ihe li-
mits of that authority which the Uw givea
them.
As for instance, if they present their opiuioti
of things only, as that they conceive !.?<, and
1. N. enjoying such an Otiict? U) be altrkpfcther
unfit for it. This sure would be ouiti> Intsule the
office, and nature of a juror, this beiw^ out of
the limits of their authority and iminiry, and
though this should be aniong other Ibln^
which ibey might lawfully eTMiuire of and pre-
sent, that would be no excuse tor this extra-
vagant presentment which they had no autho-
rity to make«
In this case, ray lord, 1 muNt coufesa 1 do
not find, but hope to hear something from the
other gide aliout it, what article of their uNual
charge, the iinitterof thin yrracntment liflongi
unto in reference lo my lunt Mticcleiifletd ine
4R
1347] STATE TRIALS, 36 Charles 11. {6M.^E.ofMacch9fieldit.^arhq,[
plaintiff, and the rest, unless it be, that which
IS endeavoured to be intimated about their
havintr rid armed, and that iiuleed tliey had by
several laws power and authority, to inquire of
ashy a Ed. 3, c. 3. 7 R. 2. c. 13.and20 R. 2, c.l.
But even as to that I must say as I said be-
fore, ill i^eneral it is not directly nor positively
afErniud and charged upon the pldintilf thathe
did so, and tiiere we say lies the reflection, being
an oblique calumny and accusation to insinuate
as if iny lord did so and so, but doth not down riglit
say, that he was guilty of any of these things.
Now my lord, i must confess, upon looking
into the matter I conceive that all presentments
ought to be affirmative and positive as to the
charge, but this is not any such thing, but they
conceive it expe<hent to declare their separa-
tion, and they hold themselves bound in tliis
juncture of aflairs to present their apprehen-
sions of danger from a dissatisfied party in that
county, and then again they conceive it ex-
pedient that such and such persons do find
security for the peace, and the plain tifiTirst.
It is the end of all law to bring things to
judgment in a due sourse, and nicthoil of
examination, and trial, but now such a pro-
ceeding as this upon wliich this action is brought
is not a legal course upon which a formad in-
dictment may be raised : and under favour, my
lord, in all criminal accusations the course of
proceedings should be such that the party ac*
cused may put himself upon the trial of his in-
Docency,whereby he may either be found guilty
or acquitted.
And besides, my lord, this I have further to
say, as to the martcr, that I conceive the parts
of the justification the defendant hath very
inucli failed in, ami that in many particulars.
First, tin justification is made of a presentnit nt
made at Clicster in the Common flallof IMoas
then* at the sessions, and the declaration is for
a libell and conspiracy at AV'anlai^e in the
county of Berks, and it dutli not appear that
the tlmig justified is the same with the thing
charged. Nor doth the pica say by what au-
thority this court at which the presentment was
made, w.is held, nor by what commission. 1
did mention that Chester hulh various and dif-
ferent jurisdictions, some by common law,
others by statute 32 11. 8, and 33 11. 8. c. 13.
Now it is necessary in sucli a case that he that
Mill make such a justification, must justify in
such a manner as to leave nothing out or un>
alledgod, that makes any thing to the com-
plotinj;, and perfectinjj iuch a justification,
ibr by his justification he acknowledgeth all
the matter of fact allcdged in the declaration to
be truly set forth, but only justifieth the man-
lier of doin;^ that fact, witluMit which justifica-
tion the same matter would be u fault, for which
lie must suffer.
Again, the Deft-ndunt in this plea doth jus-
tif}', that he was among the rest swoni and
charged to enquire fi)r the king and the body of
that county, u[ion certain ariicUs delivered to
him anil his iVlluw jurors by the justices, but doth
jiot lucutiou \s but tUostf ui ticlc:> were. Now as
this is alledged in the plea, it shoold semtW
tlie *• Articuli per Justiciarioa eis traditi,' «m
articles delivered to them in wntiiig,iBda
bein^ certain ought to have been partKoUr
set forth, that it might thereby have appeudl
that this presentment was in pamuDcetf
those articles. For in case of a pleaiaiiiriC
and to avoid such an action as this, be mhIi
thus as 1 conceive to have justified. Icodb
I did such a fact, as in the decUratioDiii|-
ledged, but it was at that time givoi neii
command and charge to enquire so and so, «i
for that reason, 1 did make such presentmoi;
and so ought to have set forth what theulieiei
were, or at least to have said they vm aA
as did contain in them matter upon which thii
presentment might be grounded and fimndid.
Another part of this justification isthilb
says he did it accordint^ to evidence, and te^
mony there to them given concerning Hkm
earl. Now that 1 conceive to be too jfoffli
and therefore naught. In Bnshell'i C«ii
my lord Vaughan's Reports, fol. 137 *,
was a jury fined because they did not W>J"*
verdict according to evidence, and ^ ''Jj
committed to prison, thereupon broagbt tw
Habeas Corpus in the Common Pleat ;ud0
lord chief justice Vaughan who ddi^ertdttj
op'mion of the whole court, in that ciieii
take exception to the return of the Bikil
Corpus, which set forth that matter •o,"'
cause the court that made the rcUimoigMii
have sett forth the evidence given beii|*tj
that it might appear to this court here wMtt*
the verdict were according to evidence or oC
My lord, I would borrow a reason ftwaw j
case ill Vaughan to use in our case, and ■8'
it thus. I conceive that he that will cliii«»
plead specially and not gt^ncrdlly, «»g» •
make it so certain ami jwsitive, thaluoeXttf"
tion may be Uken to the generality andmef"
tainness of it, and surely 1 think ^^^^^"Jj''
sion, a barr or a justification in a pka ottgw*
be more particular and certain than die rtW*
of a writ from one court to another, which n
the return of a court they ini^iit wth id««
reason think fit to give credit toandconswi
more largely. But this, as all pleas, niu^
taken moststronglv> against the party plw*^
who is presumed liest to know his *>*°^
and to lie best able to set it forth, and them«J
it will likewise be ]>resumed that he has***
forth all, and if then it be too general and «»•
certain it must needs be naught.
1 have this further to say, ray lo"^».*f!
the form of this pleading,'! coiiceiTC it ">•
failed in many particulars, lor
P^irst by this plea or justification ^^ ^^?[
fendant's, the plaintifl'is streightcned, andtbi
traverse taken in the plea is too narrow to W
this matter to a fair trial. .
And the jurisdiction of Chester, whithiftf
defendant bv the plea would draw thecxa»"
nation of this cause, bfiinga li?niied andcuc^
* See the Case, Tol. 6, p. 999, of thiiO*
lection.
STATE TRIALS, SG Charles 11.
jurisdiction, is not large enoniiU to carry
mailers^ charged in tii€ d^elaraliwn Rfid
or justified hj the plea, iLitber to be
I deteriuined.
plain tiff declares upon a conspiracy nnd
\ wriUen, and pullrislieil at Wantage in
ity of Ikrks, the delbiidani juiiitfies
impauBeling, sw earing and charging^,
mlmeui in the county of Chester, and
iverseth, absque hoe, that he is guihy * Je
win narratione' in l\ic county ofBerks^
where, out of the t'oiinty of Ciiester,
to this, my lonl, I lliink 1 have two
ions. Here ai^e many ihiuj^s laid in the
jtioD ; as a conspiracy, the w riling- of the
and the pnblistiiag, and these may be
^ so laid in this action as distinct crimei
ifelres^ anfl I conceive are to be en-
iiuo distinctly by the jury, that should
cause upon issue joined. And ihat ar-
f ground upon &!)iiiLth and Cras havoc's
dmer 315, Tlie eas« is t^vice reporte«l»
ipon an action brought in king Jameses
"^judgment was arrested, by opinion of
res in tliC King's Bench. Palmer iH5
ff : and again its it t»taads reported in
ir, fo. 15, v^ha*e judgment is given for
tntifi*. But there it is agreed that %vhtTe
iracy is laid in one place and the fact
hd about was in another, though in the
POOty, there ought to be sereral viiJncSj
irtffes them to be distinct crimes.
Iifisides, my lord, I conceire with sub-
the traverse ought to bare l»een * ahsi|Ue
kiod est culpahiliii dc pre missis nee de
fc uliquo/ ti>r it is suftictent ibr Ihe plain-
ecover if he make out any cause of ac-
aoy one particular. Now how can this
^9 that confines all to the cxjouty of
r, be good or large enough, for they can
king hut tvhat htqipensto be within (heir
r^iadiction, and tlie plea which grounds
^rse goes only to the making of the
tkient, and answers not at utl to thecon-
^r writing the Ubell-
icrtainly the last words of the traverse,
iter vel alio inodo qnam' the defendant
hie plea before allcdged, will not make it
for these words answer to the writing,
conspiracy, and I shall compare it to
' in Cro. Ehz, fo. 433. of Askne and
r*«on, trover for sheep, 1 Dec, 36 Eliz.
^tendant pleads he was sherrlf of Lin*
>e» and J. S* recovered against the
*^ 100/», and had nf-fa, returnable Craa-
imaruin 35 Eliz. which was delivered
3 Oct, 35 £lliz. to be executed, and he
5t» 35 Ehz. took, &c. which is the same
iott absque hoc^ that he converted them
vd olio raodo ;* and the plea was by
Me court held insuificient, because it was
leering to the time laid in the declaration
% that were a transitory matter and the
J things of the action were answered,)
: answering all comprizetl in the decla*
kt was ill in all: 8o here this plea hath
twered the wbol« dedaratiooi for tho
1 6S4.— /or Scanduhm Magnaium. [ 1 330
conspiracy might be in Berkslihe though the
presentment wtre made by theiu as a jury th
Cheshire, and therefore fs ceriatnly njiu*iht,
because both may be true, the decluralion und
tite plea, and yet not ansucr one another, be-
cause tliey speak not of the same facts«
And i conceive the general issue ought to
have been pleaded in this case, but of that I
shall say somewhat more presently.
Anoifier exception, my lord, that I take to
the pleadingvis this, thiit the defeialant Imth
pleaded maitt-r acted and dependtag in a court
of record, and yet halh not pleaded it ' pro ut
* patet jK;r rccordum.' E^cry plea must have
an apt conclusion to bring it to a proper issue
or judgment, if the plea doth contain matter of
Ilecord, it must conclude, * prout patct per
* recordum,* because that proves itself, aod the
repJication must he * null tiel record,* and there*
upon it shall betryetj by I he record vihen pro-
duced, or jodgraeat upon failure of the rccurd*
And so is the book, of 30 A^sis. pi. 21, In a
like matter as this it is said if tlie defendant«
ma writ of consptrucy will jus«lify as jurors or
indictors they tnubl uiake it apjfrcarby record :
that \n to he way and method of trial io the
case, and bo it must here be»
So f VI. -1. 31. There was an action upoti
the case |ijr a conspiracv ; tlie defeudanls plead
their imjiunnelling before a justice of j,>eace,
and an indictment of trespass was found
by them aad demandeni judgment, * vsi action
* ace :' thereupon * Null tie! record' is replied
and upon that issue jofned, and upon failer of re-
con], ju^lgment u given for the plaintiif.
These two cases prove clearly that the trial
mu?t be by record and therefore, * prout paid
* jjcr recordum/ should have been llie conclu-
sion of the plea, ami the plea not having coo •
cludetl so, and that being specially assigned for
cause of demurrer, the plea is naugiit. Our
iitst exception is that instead of selling
forth this special matter as it isi here pleaded,
the defendant ought to have pleaded the ge-
neral issue, aod could mil plead it thus ; for it
is' a plain anil known rule wherever a jiivtiQ-
catiora doth amount to a lisr, not guilty, thai
is cause of demuner. la such a case 1 Deed
not cite b<joks, I am sure, for pitwf of ihis» it
is •© well known anri so plain law, Cro. Car*
737 Lynnctt and Wood's case, * and abund-
ance more are expressed in it.
And the reason of law is plain, l>ecau«e s[(e-
cial plemling tends only to intricate antl in-
veigle the court m such' a case when matters
ought to come to a prO|Ker issue ; so it %vould
in this case: whereas all advantage of this
S[iet!ial matter, if it amounts to a good excuse,
would have been sav^ to them upon the ge-
* The case here intended seems to be that
ofLynner v. Wood, Cro, Car. 157. One of
the nrsl general principles in pleading i» that
nothing may be pleailcd specially which
amounts to the general issue or a total defiial
of the charge, See Co. Lit« 303» b. 3 Blackst.
Comm. 309. Com. Dig. title (Pleader £. \\.\
1351] STATE TRIALS. 36 Charles II. iGM.S.ofMacclesfiMv. SUarluf, [m
these matters that are therein mentiooed ki
Dter judicature before proper judga M
conusance of the cause.
Secondly, as it was made before pnye
judges, so it was also made by proper penw^
such as were vbry fit to judge ot ibeflHttr
given them in charge. And
Third>y, That the causes and matteiin»
tioned in the presentment, are ?ery goodctM
and grounds upon which these persoBi DJ|hl
request that the persons therein Dimedn|ll
find sureties for the peace.
And I conceive, my lord, that if I makeirt
these things this action that is thosbnodl
upon this ]iresentment must of neoenityftlli
the ground. In the discourses of these hail
I shSl answer Mr. Ward's objections m I p
along.
First I say that this presentment for «liiA
this action Mas brought was made in a prt|tt
judicature and before proper judges tuthii
conusance of the cause; and ueing tbcs nie
in a course of justice, I think it will be fM
me that the action doth not He.
Now that it is maile in a proper jodiatai
and before proper judges, I think irillte
neral issue, but^his special plea would intricate
the court in disputes between matters local and
transitory, and oetween particular and general
jurisdictions, and a gpreat many other questions
arising upon it. So that both for the substance
of the plea as also for the form in which it is
pleaded, I conceive there is not matter suffi-
cient in it as it is pleaded to preclude the
plaintiff, from his action, and therefore humbly
pray your judgment for the plaintiff.
Mb. Holt's Argument.
Mr. Holt. May it please your lordship, I am
of counsel in this case for the defendant. The
Record hath been already truly opened by
Mr. Ward, and therefore, I shall not trouble
your lonlship to repeat the particulars of it,
But the general question of the case is,
Whether this action as the matter appears
before you upou this whole record doth he or
not against the defendant.
And with submission, this action 1 conceive
doth not lie. And next suppose that action did
not lie, in case a proper plea were pleaded,
then the question is whether this plea dotii not
sufficiently avoid the action, and with submis-
sion I conceive it is a good plea and doth well
AToid the action.
I shall then in the first place consider whe-
ther this action upon the case, in the nature
of a conspiracy, for this matter, doth lie as
it is set forth in the plea, that is the main ques-
tion, and as I saicf with submission to your
lordship I Ao conceive the action doth not lie.
Mr. Ward did indeed premise several things
which I do admit, as
First, that the action brought by this noble
lord the plaintiff is brought as well for the
king as for himself u\)on this statute, and that
the kii)^ is concerned in it ; all this I do admit,
and yet I conceive that will be no ingredient
into the case, nor will affect the case at ail one
way or the other. For I do not observe that
hetiath inferred, nor indeed can he infer any
consequence thence to maintain this action.
Secondly, I do admit that this noble lord
the plaintiff is a person of great honour and
dignity both by title and office, and in lain-
Kelfofgreat worth and honour, and I conceive
the integrity worth and honour of my lord of
Macclestitld arc not at all concerned in this
case. 1 would not be misunderstood : thou;^h I
shduld justify and maintain the presentment of
the Grand -^ury, to be a good |)lea in law in bar
of this action, yet 1 would not be thought in
the least to make any reHexions upon my
lord's honour ; that wnich I stand upon and
intend to argue is the law of the case, not any
thuig of that tendency ; and so I desire all
along to be understood.
A6 to the causes of the special demurrer, 1
shall consider then by and by, but that this ac-
ti(»n as it stands before vour lordships upon this
record is not to be mauitained by law, I shall
propose to prove by those three grounds and
reasons.
First, that this is a presentment made of
pretty plain if we do 'consider the j[umdicMi
of tlia court* in which this presentuKStfV
made, which though Mr. Ward bath madefltt
of his objections that it doth not appear vtat
jurisdiction it is, yet with submissum I tih
it you and jail the courts in Westminsier-kil
will take notice of their jurisdiction being ii i
County Palatine without its being particuBl]
)dcaded, for it is the king's own immefiili
Court, the County Palatine having Jura Bt
galia, and the judges sit ther^ by thekiv
immediate couunission, and patent from i
king. It is then like the jurisd lotion of *i
Court and the oilier Courts in Wcstniiustt
hall, and I think it always has been taken Doi
of as such by the Courts iu WestmiiBtt
hall.
If a Writ of Error be. brought of ajudgSM
given in the County Palatine of Chester, as '
have precedents of such in Co. £utr. tit Err
they do not set forth that it has been a Coui
Palatine time out of mind, they do not set fo*
their jurisdiction to be by prescription, leU
patents, or act of parliament, but :^enen
use their plain siilc as it is set forth in i
plea.
But now it is true in cases of judgments:
proceedings in inferior courts and subonlin
jurisdictions, there the title of the Ctmrtm
appear in the stile, and it must be made out
what authority they hold plea, by prcsciiptt
or letters patent, such as these, or act of p
* '^ This is fallacious, and begs thequesti
presupposing the libell to be a lawful preM
mcnt, that being the only question. £n
false malicious lye pubhshed in a Court in h
a manner as no issue can be therein legs
joined, is not made a lawful prescntmeDt* I
cause done by a jury, and because they ssyi'
present, &c/' MS.
STATE TRIALS, 36 Charles II. 1 684.— /or Scanddum MagSShm
leot, ami iherefore it dulh noV tieed to set
its authority sj>tciaUy.*
|ji<i I remember there was a case of a Writ
-iTor of a juilg:airnt in a Counly Palatine^
i% was assif^i'iied for Error tliat die cause
-5*<»t» in the declanitjoii was not alled^cd lo
*^t ra jurisdietionem* of the Courti but tlie
"^ lield it n«?ede4 not be so alledged because
Motility Pa I alt lie wa* not such an inferior
■"•iiuatc jurisdictioD as must be particularly
■^t-ili and restmined to such limiis, mn\ tbis
*^He case of one in the Petty Bag-*
^*?*l tbe reason iif tbe law is the same, with
I ^^tbe Friiice^Case, iii the eig'bth Report ;f
'^i,^^ it is heltl that an act of parliament coa-
^*Ug the Dutchy ui' Cornwall, and which
"* a special manner of inheritance to the
Es eldest son, was a public act of parha-
^md not such a private one as need to be
iailj set forth, and your lordship as all other
tint's Courts oiight to take notice thereof
Th' fi iliiij beings in a County Palatine which
I power, and this hcinjjf the King'^s
lumiedlate commission from the king-,
^lis junsdiclion tloib comprehend within the
JDty Pablinc, the same authority as tbe
j's-liench has in other parts of tbt king"-
\ aod therefore it bnib power to enquire of
„_ .flfences committed williio the County Pa-
- Id title tbut justices of Oyer and Terminer can
'^ ^Boquire of, nay more than ordinarv commiff-
•-' ^Offers of Oyer and Terjniner, and may exa-
. Vnitie the Errors of other justices of Oyer and
L Terminer, and enquire of things they cannot
«i]C|^uire of,
. Siow it being- so, pray let ua a little consider
"^^ bat is mentioned in this presentment but what
f. tbe judges there had power to * enquire into
, * and ejKamine hear and detennine.* Thoy by
their commission are to proceed ag-ainst all
thot frequent conrenticles or unlawful meetings
under colour of the exercise of religion con-
trary to law, a^ain^it all that g& or ride armed »
rbich is an offence in tinw of j^eace^ and
UDst those that unite and as^semble iti unlaw-
n umbers, and in a tumultuous riotous
jiner, so that there is notbiti^ mentioned in
I presentment but what is proper for the
pi^aoce of that Court before wlmm it
I made. |
■• So in the Original*
-f- a Co. Rep. 14.
% ** This ia fallacious, for a crime whereof a
[]!ourt btith coTi usance may fie maliciously
__ 'in ijueh manner that the Court
. "cannot legally hear and determine tbe same,
oor brintf it to any issue, nor gi^nt any process
upon tbe aug^eiition. Ererr Court (except
parliaments) in bound to legal forms, as well
UM limited to the matters whereof it may take
conusance, but the Court could not hear and
deteriiii tie any of tile matters in this libell in
lite manner these are set forth, and therefore no
lawful presentment, nor to be deemed a v^erdlct
4»ract of a jury as such nor could the Court regu-
larly lake any •onusanceof tliai libell," MS,^
I
Now my Lord, I would desire to consider
this declaration of tlie plaintiff in ibis mutter
which seem^s to comprtbenii these sorts of
actions-
The first is an action grounded upon the
■tntute de Scanclalis JUag^ntum, and that I do
acknowledg:e to be favourably taken, being,
grounded upon an act of parliament.
Secondly, another sort of action setmi to
begrcmnded on the common law for a libell, and
that action any man may have, as well as a
nobleman* And,
Thirdly, it seems to be a kind of action of
conspiracy for to indict or accuse tbe plaintiff
of these mutters in tlie presentment without
probable cjiuse.
Now, as to the first, though it be favoured in
law as an action grounded upon a statute
and for the preser^atiuo of the dignit}^ of peer-
age which bath so great an intluL'nce upon the
gorernment, yet even in tliat case a proceed-
ing according to tho couri»e and method of
law,* shall take away the action of a peer upon
this statute, for such -a fact ; for a peer is cer-
tainly as liable to the justice of tlie nation, and
matters done by him as inquirableof by a grand
jurv Utibre a proptr court as a privalc subject,
and if the court nave jurisdiction of ihecuuse,
a jury may enquire of that matter of which
the court bare jurisdiction. And for such an
enquiry he cannot have his action, ami that is "
not a suggestion of mine, but grounded upon '
a full authority in point, and that is the case,
1 1 Eliz. Dyer. SftS.f A fieer brought an ac-
tion upon the statute de Scandal is Alagnatum,
in the Common Pleas, against a man for ac-
cusing him for forging a deed (which c&r*
tainly is a GT^ttt oflenee and di-aws with it a
great deal of iuiamy and scandal) the defendant
nejustitied thus. *• I brought an action agdiast
* this peer,* the pdaintiflT, of * forger de faux
* fauts^ which is the same uiatt^^r upon which
this action is brought, and theimpon the plain-
tiff dctnurrsy Tliis was held to bi: a gtHtd
justiti cation, and that tbe statute, de ^an*
dalis 51agnatunir did not extend to give an
action for such a matter though false, though
malicious, and though brought for vexation
without reason j and why, because it is a pro-
cectling in a court of justice, and wherever a
* '^ This is the vaiu lallaey that rmis quite
through all this Argument, that he supposeth
the libell to be a proceeding according to the
course and metliod of law. If it were, nu ac-
tion would lie against the detenilunt, though
all tbe matters of the accusation were false.
And it may be, the law won hi not suder it to
be deemed a conspiracy,** M8.
f Lord Beaucliamp v. €mi\ et al.
II ^^ All this Argument is triilmg and beg*
giug the question » taking il for granted, thai
the writing thii» libell wns a legal proccediii|p
in a court of justice, which is utterly deuie£ •
Tlie action against the peer was u legal process
against tuin, for which do maui shall siifier,*'
I
I
I
I
1555] STATE TRIALS, 36 Chaslw H. i684.— £L p/ MaccleMfield r. Sferhy, fiS j
man, doth proccci] in a proper court that bath
proper jiiriscjiclioo, and for crim«a that the
court liath coDusa^ice of, be is under the pro-
teclion of the Inw, fur thai pn>secutLOD| and oo
action will \ye agaiost him for it.
And that, roy lorti, is the difference taken in
the fourth Report fo. 14, Cutler and Dixon's
imse, Tvhich uas thns : Divers scandalous arti-
de» ire exhibited to justices of the peace,
ftgpainst certain persons. Some of those thingrs
the court had jurisdiction of, some it had not,
but though they were scandalous and without
reason exhibited yet for the tneer scandal I, no
action would lie because defendant had pursued
the ordinary course of justice**
It is true my lord, a special action upon the
case will and may he afler the matter is de-
termined, for pn»ceedings without a probable
cause ; but ihtn the action must he special,
and the plaiuliff must declare that there was
tucb a pra«^ecution upon vhich he was ac-
quitted, and that it was without any probable
cause.
But, my lord, the Declaration in this case
now before your lordship h not so, settinj^ forth
that they proceeded in a court of justice where
the matter was examined, and the ptaintif!*
acquiUeil, and that the prfveecdint^ was without
any probable cause; but it supposeth a hbell
rnada hy the defendant in conspiracy with
others in Berkshire* and then sets forth the pre*
sentment in hn^c vcrha, and then a publication
of it in Berkshire, tatBe scandall of the plain-
tiff.
Now 89 this Declaration is made, prima faciei
no question hut the action doth lie ; bui then
takings the whole record tog:<4her, and as the
matter is thereby disclosed to the court, it ap-
pears to he quite another thin^f : if so be these
things bad been done in Berkshire, as the
[ilainiiff has declared ; without the methods of
justice, tJiere had been nothing to be said to it,
but beings hy the plea shewn to \)e in Chester*
before a proper court in a le|fal course ; and
not any ihinif shewn hy the plaintiff to deny
the matter of tlie justitication,f I think it eou
ncTcr maintain this action, to make this a
tibell, made by conspiracy and publisbetl in
Berkshire.
I come, then, to the second ground of my
Argument, why this action will not lye, and
♦ " If the libel! be no prosecution in judg-
ment of law in a course ol' justice, then this
Argument is rain. The matter of the libell
could never l>e determined by the court to
whom it was offered, nor the plLuntiff ac«jmtted ;
and therefore it is U* be judged a libell, and the
plaintiff must hav« his remedv now, or else be
ran never have any ; and so he shall receive a
great injtiry, and he without possibihty of re-
lief if this action do not lye, and that is against
the known maxim of law, nemo rec^at a
Curia regis absque remedio.*' MS.
f *♦ This ought to come into the evidence at
the tnai. The plaintiff cannot give evidence to
the court upon the DemuireT.'' MS,
I
that is this, this presentcofiit ii atn^l
proper persons, for it is made by i (nad^
of a county who are by their osthrtop
all offences that the court batli sulk
hold plea of.*
I think it will be easily agreed towt^i
is not necessary for the grand jurj, biM
an indictment lie drawn up by in ciar|
other person in form, and in Lalioi intf li|
their inquiry to confine themhtltes vtf I
such bills of indictment as ane prfpani ^
presented in form to them ; but UvfT » •
eufiuire &nd presentment make of w ibic
that are given them in charge, and ibt oid
they present unto hath conusanoc of,t)uildl^ '
have any notice or knowledge of tin
or, are informed of by any person, | lail
without doubt they may do : auti U tslbcQ
slant universal practice of grand jamll
they huve thsp^tched thebmsthali
to them in form, Uiey go and coninit s
tliemselves what they Imow of thm on
ledge, or are informed of, conceminff 1
the matters relating to the businoi^ 1
county within their charge ami auiIi.MiU
according as upon enquiry (
to present, they do present it 1
that very ofVen wiUiout the strn:t U>-
and in English; this is clone by l
assises and sessioDS,|{
And what is the effect of this T whv wM^
double, the officer of the court recii't/ik t
presentment and draws up a bill upoti iW i
ter pre^ente*! into forme, whicT " fmJil
an indictment, or else it is us* i»ot|
aDOlberojand jury, the next awM
to find a bill of indtetment upon, aiul <
ly indeed this latter \«ay is taken :
of tiie assize, or clerk of the peacv,
these informal presentments sm e« i<!. nrr u •
!^ueceeding grand jury, to find h
drawn up ihereujKm. Noviv. li.
being' the practice all over I kur*
not why it should come to b*. m oar
case, to do it here.
Then in the next place, my lord I wmH
desire that this may be a little ooosiilece^ A
Grand-jury do apprehend the peaee of ar
country to be In danger, they do oUcf*t
many meetings of susj>ecie!d pecsoas, o^ii nk
* ^* This Argument is sick of tbe same ilK
firmity with the first,** M8.
f See the Grand Juror's Oatli, vol, S, ^
759, 772, 773, of this Collection.
II *' Yet if they will become acjcusen thef
must do it in the course and fonu uf lt«,
whereby the parties accused may Uavt ^&aam
in law to acquit themselves, and d«?af tbct
i n noeency . The law never did i nipower a jorf
or any other, to blast any matins reputainfS
Without possibility to clear it; iho jury nay
present defaults oi' all kinds, but tbey may odi
rayse lyes, or maliciously acctise persons mi
ot the course of justice, and be free from rf
punishment for abusing such an Biidiocit]f iij
the law hath placed in them.** MS*
^] STATC TRIALS, 36 Charles II. l6S4.^for Scandalmm Magnatum. [135$
if it be considered it will appear to be a Terj
mercital presentment to desire only securitf
uf the peace in such matters as are therem
contained.
That comroissionehs of Oyer and Terminer
have power to bind persons and take of them
secuntvof the peace is expressly held for law**
in Fitzh. Nat. Brev. fo. 28, where speaking of
justices of peace how they come to have a ^-
neral authority to bind persons by recognizance
to keep the peace, the nook says it is by Tirtu*
of that special clause in their commission which
gives then) pou er and authority, * ad Aadiend'
' et Terminand' et Inquirend',' of ail things
done against the peace. If then, by virtue of
that clause, in the general commission of the
peace, justices of the peace have power and
authority to bind to the peace, surely the judges
of Oyer and Terminer at the assizes at Chester
have likewi^ an authority to bind to thepeaoe^
which is all the end of this presentment
My lord, Mr. Ward hath made some sort of
objection against this manner of presentment/
First, he would have it to be so scandalous
to my lord Macclesfield because it doth unporl
in a mannerf that he is guilty of treason, of
great breaches of the peace, of going ' toooii*
* venticles, riding armed, and tumultuously,
* &c.' and this he would have to maintain this
action. I think it is not so, but if it be so, no
action I conceive would lie : for if it be true or
they are so informed,|| the Jury ought to
present it by their oathi, but if you take it
the other way, and my lord is not thus scan-
dalized but by inferences, not by positive and
direct charge ; then I hope you will not let
such inftirences construe a man into an action,
when my lord is not accused of these offences.
Will you bring an action tor an accusation F
No, yon by these inferences yourselves scanda-*
lize my lord, and certainly never an action was
maintained upon such a ground as that.
Words are not to be strained i in any case
whatsoever to make a man liable to punish-
ment or action for them. These words I conceive
ought to be phun, or no action lieth, so that
take it either way this action must fall, if it
doth, or doth not accuse my lord of Maccks-
field, If it doth accuse my lord, the Grand-
jury have ,done it upon their oaths,^ who by
d in gn>at numbers, and the country terri-
by such tumultuous assemblies, shall not
drand-jury endeavour to preserve the
i of the country? Shall not these men
nt their tears and apprehensions to the
. of justice,* to desire the aid of that court
e preservation of peace and prevention of
lief? Shall not a private man that is
ited and apprehends himself to be in dan-
flife or bodily hurt <x>me before a magis-
and declare his fears,f and desire the
ity of the peace from him of whom he
a in fear (nay though it be a peer) and
not a Grand-jury. that are sworn to en-
of all breaches of the peace be at liberty
sent their fears of a public jlan^r ? Cer-
r the law would be defective if it were
o as I say, for all will ag^ree that the
il-jury represent the country in, if not ip
enquiry about, all matters about which
Mintrv may be or apprehend themselves
in Clanger, and in this case that is the
done. In this presentment they declare
apprehensions, tney give reasons of those
apprehensions, what is the cause of their
and desire that their fear may be taken
by a remedy provided by the law and
awful way.
r hntly with submission it is not necessary
istices of Oyer and Terminer to enquire
rs by indictment.|| They have another
and that by the express words of their
limon * per sacramentum proborum et
alidtai Hominum de Comitatu ac alijs
Modis et Medijs quibus melius sciverint
qnos, rei Veritas melius sciri poterit,' of
sffBooes of which they have conusance so
: it not necessary, that the proceedings and
ions of a Grand-jury to all intents and
y should be by indictment, ibr the very
ion gifes autnority to make inquiry as
y other means and ways whereby the truth
Kot be known, as by the oaths of honest
awfbl men. If then they have authority
IQtre by other ways and meaas, surely
ay of presentments, and desve to take
i^ of the peace as occasion shall be, is a
and legal way of proceeding : and surely,
* A Grand-juiy may inform a Court of
natters of fact, but their fears or fancies
0 ground in law to deprive any man of
bsrty, unless he finds sureties for the
. ff any one Jury-man will swear he is
1 of bis hfe by any man or men, and ex-
yoa causes upon oath of his fears, he
hsfS him bound to the peace in 40/. re-
ssnee, and two sureties in the like sum,
tti is not as Jury-man. If the jury will
tbeff fears of their lives by- auy man,
natt proceed as other men do, and that
laot to the point to justify them in this
» MS. .
* Tilers must be just cause of his fears
;ed and he must not invent lyes of the
kefeais*" MS.
TUsii not to the purpose." M9.
♦ «« Not to the point." MS.
t «< The libell expressly saith that the plain-
tiff is disaffected, a caballer withSchismaticks,
a frequenter of Conventicles, Sec, and being so
charged in the declaration, none but a juiy
can try that matter of fact." MS.
II ** The matters criminal in the libell are
not so set forth as the Jury could have oaths
made of them, nor could they in that manner
depose or know them, and therefore now ne
matter for a presentment." MS.
§ ** The libell is grossly scandak>us without
straining one word in it." MS.
^ " Our law does no more admit anr
man to swear another to be disaffected thaa tt
admits him to swear a aiaa is a fskm er e
tloD^ doUi excuse llietn of «J1 ihmg»4m\
tbem before.
My first ftulhtv
of Cfinspirftcy is i i
datil jusititletb thai hv was au ludnAuti
Olbers wlio \rere charerinl to jirr*!<rt i
1SS9] STATE TRIALS, 36Chahle9 IF. \6B^,^E.0f MaccieffiddvA
Uiat omh are answerable to God and their own
consciences for makitig* such pr^scnimenC, but
not \v* any person by action. If it doth not
accuse my lord then there is no scandall,
nnd e«iise<iuently no ground to support the
aetion .
In thificase, tny lord of Macdesfipld is only
de^reil to fuid sureties for the peace, and if ao
action of Srundulum l^[ag;Tiatum liclli for u
peer's bein^' ih:»ircd ta be bound to the peace,
that 1 tiiink vw>iild be pretty hnrd| that i$ a
chance that raay bei'all any persoa whatsoever*
The tnost innocent pti sou m the ivorM may he
required to tind sureties of the peace, and no
man's greatness can exempt fi^m it, for a nmn
ia not to refuse tu keep the peace« nor to give
caution so to do. if a man theo be presented
under auspicious aod danirerous circuin-
8tanee«i (I say not, my lord of Macclesitehl i«
under any such, but only sjjeak to ihe matter of
this preNentnient) and desired to be bound to
the jjeace, there is reason he should ao be,
hecauae it doth legally and fairly appear that
he hath giien cause oi suspicion to ttie king*Ft
ministers, or pcO[>le,* of some danger from
him, though he hath not i;one so far as to
commit any act whereby a breach of the peace
4loth actually appear : lor binding to the i^eact*
ia for prevention ot' breach of the peace, and
aecuring from the danger ihreaicned or teaied,
and not for a punishRleot of an offcoce past.
Now, my lord, this being, as 1 hare already
•aid and proved, proper for a Grand Jury to
take upon them to do, I will cite to your lord-
abip two or three authorities out of multitudes
that might be brought to maintain the asser*
tion that in any case whatsoerer a Grand Jury
if not 90 much as to be cat led in question, or im-
peached by action or otherwise for any thing
they do by virtue of and within the limits of
thetr aathorityf ; nor indeed are they to be ques-
tioned for any thing whatsoever that they have
done l>efore the time of their being upon the
jury, because they once having l*een upon the
Grand Jury, and thereby being to enquire of all
ofiTences within their knowledge or intorma-
tray tor; the matter of fact ought only to be
aworn, and the law or a jury must judge what
crime was in the fact, so that this ItbeTl is not
a thing done in the course of a Graud jury,
wherein the law protects them, but it is a scan*
dall maliciously a^d by conspiracy done to
icandalize anil defame the plaintiff." MS,
♦ " HUs subverts (if it were Liw) all the
liberty of Englishmen, and subjects them all
to be sent tt> gaols without any olfence sworn
again!;t them, from which tiiey can be ac-
quitted ; and when the king^ii mtaisters shall
, aay a whole county is under dangerous suspi-
cious circumstances, they ma>' scud them all
to gaols if they cannot or wift not find sure-
ties,** M8.
f ** This ought to be given him without his
authorities, hut ih nothing to the point. This
libel] is not done by virtue of, nor is it within
the limits of tbehr authority." MS.
an oath wi to do, . \ ilir^
of murder, and v^
and concludeii thai r
the action could not t
menl v • - - ■ '
oneol I
him fit ^\ . ,,.,..,.
action, nor was any u
what was done by hi
service, 8 Hen. 4 to. o. Pi
c4*Dspiracy tlie like plc4i
former that the ilctVudaut tiu» m\ i\
then Ihe plaintTff rc'iH^^th jou wrmt?5'
indictor» but
pauncUtd ^i
met together, :i I id il.%
there conirivt d that i
and V-
purfH'
liereU|.MjFij imrt/ l"»a.> a vt^'iimn t i, 'iii: ' ••"
held to be no good replication si all»f(*r«^
ever he did before, whaterer rowtinD*'^
Mpiracit^ there were, ypt^ if ontebe opt
be a Grand Juryman and tob^ upcmliii^'
present, and he doth thereupon i«l«l •F
sent, the provision of the la* far t«if<f
tion is su great tl»at he shall not be ac™^
any thing done by him before that uwr m
in that case judgment was given for ^^
fendant. •
So Fit2. Nat. Brer. tit. r
Lit. 0. if jurors are sworn i
afterwards any of them Is
jastice€>,heshal)notbe puui "^
he did when he wajs swoni, inn \i iw '^^
after, &c. he may lor that be charfd ^^
spiracy.
Again Slamf. PI. Cor, fo, 173. If"*!
conspiracy iheconBoirator^'n'^-^ cv»rtmiifl*»
inquest aiid indict the par t v -^
in that ca&e no writ of eeubt-.a.., .s^
them, because it canni^t be intandfli ^ ^
uialicious when they do it by rirtuf^ ^
oath and with other juronr So thsti
the coBspiracy before, there was a
tion, yet their coming once to Wof
Jury purgeth all.
So 12 Report t3, and Bi „
ports ISO, Agard against Wyld m
An action on the eaaefbr maltdootiy'
i« .Aif%&M\
* ** They are to enr
the oaths of good met:
sent alloflence«, hut ili^ « ^
ters which cauuot be sw*Vrii.
another to bedisafiected, 6fc
f »» This is a mistake of
is the same case tuentionti;
IT.*' MS.
II '' All aiese cases are taflduogtot^l
for the reasons befans giveiu** KSl
p ^ATETRWLS, S6 CBK^h^s n. l6U^^forScanda!umMagna(um, [t
ftimifrto be iodicted of banmtry, iUere U
e |ilea pleaded with ours, ihat iheDcl*?n-
K^'lilttitd another were iiiipanneMfd Lijiim
nd iiMjdcst and swiirn, uinJ Imvtii'^^ evi-
^iodicteff tb<? Plaiutittaslhi y wellmi|irht
Ddjud^Tdieiit Ibr tlir Dtlemliint.
I so 1 tliink 1 \mve iJiajmtclieil the second
Tiat I jirojKi untied tu si*eak ro, ami that is
t w»s a ct»un and judi^-t^s tttat had conu-
&f the iTiatters preseiilfnl, so ihh p resell t-
is made b^ propt-r persons, tiie? t*^i»g
el led and tirfurn upon the C/ratJtl Jury,
15^ upoji tlieir oaihii to jircaenl r*' they
ended da fisher*
to come tci the third thrn^; 1 t^ke it
•entmfnt doth c mi lain iii Ltielf auffideut
► justify the making ofiti and the de
is LQ it.
II not, my lord^ eotrr now upon the
^ at nil, whellier it be true or not, tor that
ffrt kaotv thuC made it^ and the truth or
iKi ut" the charife is not enquii-abte now ;
Pltnutter of whether itiief aal thitik it ts,
I is sutticieut for them to raake tit»a re*
^oDit, tlial the jiersons therein named
Iftnd sureties fm the peace.
l«;re 1 will suppose thi&t the ^^nd jury
N^nty apprehencts dang-er from several
■ jiersons if they obsene some persons
Miy li\ e in known disobef hence to the
siantly fret|uent conrerttides, and such
forbidden places^ and never come to
rn and estabhihed p1iict« and way of
• ihey ohfierve others to meet and Cfui-
tl»er i'u an extraordinary manner, and in
I tubers. Then the tjupstjon to \ye asked ,
ber this he not la\\ful for tbcni to pre-
Siirely my lord, it iis» tor the law do«b
Liee of these thioi^s us breaches of the
t' It takes notice of ecmventides as
HB and unlawful, and dangtirons to the
■i^nd tliey are, hesicks otiicrs, so declared
r «ets ot jiartiHinetit made since hts ma-
fcLppy restoration, the one made Ititli of
, cap. 11, and the other made '22 » f
ttgf, ch, 1, They declare that these have
mmttd to be the grounds of reb«flUon, and
Kschterons to the ijfovemment.
p^fot obliged to present their apprehen*
W- fancies, hut oHVuces done, if any
f MS.
pfevery person ouj^ht to be presented for
■everal oBenee only, unless some be
' nders in any ca^, and the otiences
> be so specified, tliat they may be tried
nurse of law, wheihcr they be guilty or
le would have the jury present breaches
Hfteace; and nobody denieii it ; luit to tdast
^Viftmea when they have not broke the
mnd to take away their liberty w hen they
tjot otfended or are not convicted, is
^t all the law of the land; and if juries
I that manner, the law will not protect
but they must answer damages to those
bey so wniu^* ' * M^ ,
And if other persons, that do per1ia)»s tltcn
selvefi conrorm to the established worship of tfi
ehiircbi dn liarbnur siK h meti us the leachiTs
and leaders of such daniferoiis nie'etin^s, surt ly
the pHifd jury m<*} present their apprehen*-
sion<; ot tiaiig' rljoni Jiueh person**, e?«[teciaHy if
the presentment as in this ra«sc is not upon any
positiveas^ertion, oraecusatlmijiut only iiilheir
prudence they preseJil il ns expedient* *
llulton 4>lf^ lust. l*eitce, cap. 67, concernrn^
suteties, IW the peace, tells us ii ii^callel KUret5'^
of the word '*t'<uri/</s, because the |jarty that
was in fear is thereby tlic more secure atid
safe. fc><» that is trrounded upon fear, and be
says'afteri^ards in ibe sanu,' chaplert if n utnn
hath a tear thiit another will kdl, maim, beat,
assault, or hurt turn in bodVf or burn bis houses
ibou^'h the mao Imlli no actual « routjf dooe
him, yet that very fear of his, is. a g^ood cause
of him to dt»sire, nml of the jnstice to require
sureties for the peace. And is not then the
fear of a whole county, c«nse to have sucli
persons, as they apprehend danjjer from, bound
to the peace. And is not ihfi fcRr of a grand
jury that represents the county * declared in
ttieir presentment upon oath, a lethal ground to
demancl security tor the peace ? If private men
upon their private fears mny ilesire and ooo^lit
to be s«cured, f ibtnk the cotinty upon their
public fears much more.
My lord, in the next pluce the juncture of
lime is to be considered, f What time wna this^
that these g-entlemen came to he upon this jury f
j There was a plot, an horriil conspiracy aeTiinst
the lives of the kinj*: and his brother lately
discovered ; a plot.tbat was published by the
kingf's Declaration,']] and made judicially toap«>
* *' The law never yet deemed a grand jury
to be the county ^ nor any reprt*sentative of it ;
their pretendetl Jears may he only malice or
faction. The const^quence of this assertion
woubl destroy all jtsstice in the course of the
law, if this doctrine were true." MS.
I**- Voio and foreifju to the question." ISIS^
Tilts Declura ion v^jis as fidloivs :
** €1. R, It hath been our ohservittiony that
for se\ eral years last past, a malevolent party
hath made it their hu^mess, to promote sedi-
tion by false news, hbellous |»amphletii, and
other \vicked arts ; whereby they eudeavoure«l
not only to render our government odious, and
our moHt faithful &tib)ects sus[)ca'ted to the
ptjople, h\ii even to incite tbem to a dislike ond
hatred i>f our royal person ; whereu[)oii it waa
evident to us, that the heads of vhis party
Gouhl have no other aim, but the ruin of us*
and our government.
** And whilst, by our utmoiitcare, we mani*
feated to all our subjects, our xeal for the main-
tenance of the Pn>testant relif^^iwi, and our re-
taolutions to govern acconling to law, it wna a
great trouble lo us U> find, that «vd pereoiis,
by mLsrcpre:>*^ii'ii>'' ooi aiijon^ fo the people*^
sfkould m> f(t] r'i into the
afiections of s that they
lyoked upoH tUviii as tb» uniy psitriotft Mid a**
4S
1363] STATETRIALS, 36Chari.es11. lfi84^£*^/i>focT/c{^</rfr.SlMi».
I
pear by the iriaJ of scvcnl ofUte ooofpinitor» ; a
plot that was etiilcnl to hwc h^en carrttd on by
«erters o( iheir reli^fion amJ liberties, ami gare
therustrhes up ffntirely to tbeir conduct.
•* As their numbers iiuTfasetl* bo tliil iheir
bohhu^s to that heijrht, ibfU by often shcwitiaf
Ib«ti|^e1\es in tumults and rints, auU imlaMl'ul
mntl setli'ious convenlicle*, tbey not ooly en-
guiTisi^ but procbimed an iinpuoity lo tbcir
otvn jmrty, wtTo thought tbcmsehtrs alrcatly
Uk) strong ft»r the Itiv^ « ; nml they seemed to
believe* that in a short time thf^y shrndd gain
upon the people^ so aft to pri-^uade them io a
total defection from the government.
" But it plca^t'd God, by ibe^^e ihvir violent
wayi, 10 open the eyes of mir good subjects,
who easily foresaw tvhat trtHihlcs tbc*«e nsr*
tbods would produoe, antl ll^ercnpon^ vith
great courage t as v^ell aa dnty and ;tnVclioo
towards »% upon all occasiousi did manilr^t
their resolution and readiness in defence 4>f our
person » and support of our guvernment, and
the rehijion rBtalih^ihcd ; and did Ukew■^^v run-
*ince the common people of the villaiuown dr
signs of their factious leaders, and llie mi»ie»
ries that would befal them in pur^mug sue h
courses.
" liy the«e njraut the factious parly lort
ip-ou nd daily, and ftudiut; tiiat it was inipofcsi>
bic to keep up the spintu nf their folhrnerfs,
«|j;'atn«tthe rehgion e«itabliMipd, and the laws^
t)^hil&t we were Meady in the maintenance and
ffjcecution^of them, became despoi*Qte, and r€-
«oh ed not to trust any longer to the sbiw mtf-
thodsof seditioDt liut to betake themfieUcs Io
irma, not doubtiui^, but that they r<;-mait)erl
stilJ strung enough, by force Io overturn (lie
|Overnraent, which they could not undermine.
It is hard to ima|^'ine, how men of so
oany difl'erertt interests and opinions, couhl
join in any enterprjze; but it is e^rtiun, they
readdy roneurred in the rejuUition of laUin^
arms, to destroy the s^overnment^ even lK*fore
they had agreed what to set u|i in iJie place
of it.
To which purpose, they took lereral
iays ; for, whibt *H>tne were contrivioj^ a ge-
erat insurrection in this kini^dom, and like
lee iu Scotland, others were cons^iiring' to
sinatc our royal person, and our dearcvt
rother, and to massacre the maflfist rates of
pur city of Loudon, and om* oHicei-s of state,
"that there might be no appearance: of govern-
ment, nor any uteans for our subjecis to unite
for their defence.
** In caiJc it had pleased God to penuit these
^ti'ickefl- de^ii^n^ to iiare tnktn cifet't, there
ould havQ beeu nothing: in pnjspect but eon^
fusion ; for, instead of the relbrmation they
preteutled, their success would havr produced
iivjiiions aud wars amnn«^ ttiemselves, until
the predouiiuani party could have cnsluve<l the
rest, and the uhule kjntjdom.
** Hut the divine Providence, which hath
preserved us through the whole coui<s4e of our
lifei halli at thii tioie. in Ui e^lraordisary
persoDS of iboce pfttici{ile« thai wtm ^tilt|
preached al cotireobclea, and £i*ha] I
manner, shewed itself in the 9*>
Gracious deliverance of n» awj t-ar '^**li^'^
brother, and all our loyal ^ubjecftf, *^^|t^|J
homd and daoMlli^^ ' -^am
*' A^ it is i hi ret'
loving subject- '
thanl^ to Ahtr
I ho IT-*' '' "
suit I
bet Hi ..,...;, . . .L., u. .
the rontc-^sion of •'
tills cmijipiracy, w h <
as yet pcrlectJy traced ail th*
pnnci{»al and main dr?T[Tn> rif
have apjieiiretl to h<
** About thebej^ii.
the htadti of the tat uu4i
our eity of Ix)ndou setii
principleH, they b^
nnmi'flfarely lo con^
wUu « some thoui^hi im u y^
parptl, that they ouutd not fail of*
ein\^^ ^vfiencver they iihoald *
9f>en torce*
^^ U1>ereupon there was & metl^'*
oi* the principal conspirators, *' ^"
the best means to master our i
seize our person; but, upon
ibey found it necessary to prt^nretl
in the several counties^ as alto tb*
party in Scotland, to join with th*^'*
which, any attempt in our >=
our guards, ap|»^^red too r
taken : 90 that they lai^l
a present rising, and \\
find, by acorrtspcis '
with several parts n
iar they might bciia.i^tvM ^-v *^ i^^i
rection, no th^t they might ^ot, iu bui(*tf|l^ ^
liabihty, fail of succe^siS.
*^ Whilst this fimlile^if^ii wat 1
villains were likewise carry itig i
and execrable plot of asaassinati
person^ and our dearest brother, in o«i
troin Newmarket, and money it^i
for tluit purpose. Bitt by lhi» sl>ad»
time, (we being thcti tmnieiliaiclf
return) and for waat of iieccssavy |
ihey were forced to defer this csec
till further op(torturuty.
" It V- ' ' luang t
ther the; same
goin^f (it i\...r ....!• JVC >.. •«• .t««fcb last
objected, that our guardsi, wlftiHi uaoiMi
main hire some time af^er oor dmi
wouiJ be capable of tnaking' a grr^^mm
upon the arrival of tiie ni*«fa. For wwdi
son, and because tbey wtrc tmi tlittt iaa i
cictit readme^, it vrut n^reed !• ba dnar ■
return from ^s
^'Tbepbct I, wmatliebatMei
Richard Hunibold, a itmlster^ called dia J
uear Ho<Ulesdon, in the coua^ of i
&ud it wai reiK»Ued| that 40 tmrnmsm
.TE TRIALS, SfiCoARi.KS If, }6S^.—f&r Scandnhmi Afa^atmm, [1368
Had n<»t t con$ifI<*rittive consi^ientimis ^jmnd !
i jury then reufcon to l»e uppK-hensive of danger ]
fhim tbosd^tat did ailLiert to such pei^osi'
" And thot they nitgirt be the better pre*^
pnrctl, tnrheo there sh)ul»l be occusioh, hy nAv- '
u\z « certain nntohtfr of ftrnis lyings uftrayij
..-i.iv tor that purpose^ armvlnr furry men wci-n'
ke in all hai»te, fiz. Thirty carbincfi wiiK ^
- jud $wiv!es, thirty cases of pistols* tinijj
ten hiuiHlerbiishea, which were uccurdiiigljr
made a|id paid for.
*' And for the more easy drawing their pari j *
to»v<^heT» against the liraeof ejctHulion, ihvf^
ctintrived to divide our cities of London and!
VVestminstCft and the suburbs, into twenty^
partii, from eaeli of which they expected SOd J
men to be ready at the first on^el ; and eomij*
HqrilatofB wereto gire an act-ount of the meal
to be furniiihed in each division, and to ^^e*
out ordt-rs to them as there tihoiiid be ocoasiou, ,
** And to the end iheforeeslhey should rttisa'l
mijarht be the soonei^rtifKlelled into the form of^
an army, there were lOO old ofticers, who haif
been eot^ai^ in the lale rebellion, ready ia-1
town to take the command <if them : iti ^9j
pupsnit of which project, they continued liltjf
they knew that a discorery hid been mad
unto us.
** During' alt this time, the principal con«
ffpirators were manajring^ their other dc«itgn fof ^
a geneml insurrection in both kingdoniB
** The late car! of Shaftshyry, \» ho hftd
Brst pn'fised them to sudden ri^in^, which h|
would have had befrH^ the ITlh of Nov em her
Inst, or n|»rm that day at the farthest, sent to^l
ihe conspirators, at a meetinj^ appoinieiJ by*l
them« to know their resolution ; tind ttndin^J
they nould not adventure without farther pr*«, I
tmrwiifm, conreytfd himself i»ecrclly into Hol-J
and^ to avoid the danger be might be iu by i
discovery.
" UiH withdrawing^ himself from their couti* |
iels, ilid not discouraj^e them from pursuingj*
their design; only ^ade th^m more C-autiousi
whcH'tipon a new couucd was appointed ofsijCiJ
peihiuiH^ that hereto have the chief manage-* |
nu'iit of affairs, ia order to a ueuemi insur*J
ri'i-rion, hy a cnrrespundenty iTith their partjj
in Sciiibud, and «(e?eral countit'^ of xim oui
kinc^ilom : and because a coney's pondenoy by
letter* w ns Ihonjjht daojferous, it was* held ne*|
c«*8Miry that Kome penwin should be scat int*
Keotlarid, to invite the heaiU of iIh* dittatTrcian
party in thut our kinj^dom, to come hither^ I
under pretence of purehaiiing lands inCart»lina*
but, in uulh, t»i concert with them th»j be<
means for cnrryinu on the design joyntly ill
both k»n«rdfmi*( ; nnd a treaty was thcrf urH)iA|
h»d with V : <;ainpbid late earl of t^J
j^ylc, wIh ed of tn^aton, who \l^4
mttndcd yt^inf ' II tirht, but i*ti * d|
to ucct'pl ot t0,O('ij/. li>r bu^ I
MoiUnd, and in»ikiti|^ Other pti»i.?.ivMi.. t«ir,
nary tor a rcbellton, withim our kingdom (
Hcotland.
. ««|iitlie«aMooiiticil ofiiXi It fv> T,
1^ "some of whom were^ m a courae
irtod and «ceculed, and
be ietors in this assassination,
-^— T'^ <f theuaid Richard Hum-
maelves in or near I he
< our coach *ilin.ii.f <vm,i.^
n three or
') V 5eSt ar the j
d, if they should fail of kiliin^ the
m<mw wc!^ to be ready in the wny>
^ of Ubourera, '^honhl tr*i^'a
» '^^'■^j and !»o stop our c<ifich :
to shoot into the conch,
, and our dearest brorher
i to lire upou the i^uards that
lendm^ ua. And it was fur*
^' nit' day, many
I ■ , whom thvy
i.nr iM iMvu .;.-ifc;in, should l»e
line in our city of Loudon, that they
n^re readjf' to appear amon^ tlie
l^iirival ot the news; the actors in
■miation having contrrveil (be
tbeir escape, by a nearer paasasfe
ke M«itml r<md ; by which meanis tliey
i M to lAunioti, as aoon as the liewa
i Kr»4»tr*»t thither.
*t it would be easy, upon their
liornd fact, to posse*'^ tbem-
t I fktf pn^uniing upoD the
k I retl.
! of such an action
114- with them, they
I. ,1^ liir as they eonld, by
I I for declaration, which ua«-
> ,1 un-l ili^u^Tvi I in that eon-
1 le^toiirofli'
s of otir ^:iid
^ if, and other our
■ r t0 put some stop
liSaR^er, iht?y rt**ol*^d lo^>Mow this blow
bA^*^t*tt\ wbPTf^'n they purticnlurly d«?-
" ' ^iier, om off! cer« of
r, and aberrirH, mid
[i^lrai!y ol our ^ ly » and other our sub-
It hftd been must eminent for their
\ it pleased Almighty GihI, by his won-
^... ..t^«M,. ... -i.,|;.oi ihe^e counsels, by
•t, which n<'Ci*ssi'
I . ..L before the lime we
II were nut Ihei'eby di«-
;„'■ the sttrae blo«idy de-
i ke thf first on|K>rttinity
»»+ii,< t and ptiip*»«e«l to them*
ti^hr lie done eiilier in our pa*»'
t Hampton 'Court, or in
st4ir, or wh(*n wrHhi>nM
' Iktlfofd
w ^y, or aC
' III fv^^l-lyon*
we and our
u•^i i.H^.<..o.i, vfooiulng till*
1S67J STATETRIALS, 36 Charles II. i6M.^%o/Maecle»JUU9.Simbg, [ISfiB
auil frequently were in their company ? havinjf dmce, at fir as in them lay to prevcnl ii ftr dM
faa<l su mucli expericucc of the uiisiliif^f, (li«l it future?
not lie upuu them I:) cxin-ess their care audpru-
wbctlier the risinsr in this kingdom should be
first in our city ot London, where, by reason of
the vast numbers ihut might readily unite, they
thou{J[ht they nii^lit easily master the guards;
^r ni her in some remote parts, whereby we
should bQ under a necessity of sending our
CSuurds to suppress theqa, and thereby the
rising in our said city Would become more
secure and effectual : but at last it was re-
solved, as roost convenient, that it should he in
all parts at the same time, lest our city might
be defended by the Militia thereof, without the
help of our Guards, which wc might send for
thesuiipressingany insurrection in the country ;
and they did all dispose themselves accord-
ingly, for the compassin:>^ their design, which
was very near taking cifect.
'* But, such was the abundant mercy of Al-
mighty God, while the> were yet meditating
their execrable misehiels against our royaJ
person, our dciirest brutlier, and the govern-
inent, a discovery was made unto us by one of
the accomplices, on the ]!2th of June last, since
which time we have used the best means we
could, for the «ietecting and prevention of so
iiellisli a conspii-aoy.
** But soil has happened, that divers of the
•conspirators, haviu^r notice of wan-arts issued
•out far their apprehension, are Hed from jus-
tice, \ix. James duke of AJonmouth, the lord
Alelvil, sir John Coeiiran, sir Ttiomas Arm-
strong, R<.»beit Fer^-uson, who was the com-
mon agitator entrusud by all parties in the
several conspiracifs, liu'hard (ioodenough,
Fiaiicis GiiOiIi'ijoulHi, Uicliaiil RuniboUl the
maltster, Uilliani Uiim.IjoM his bn»iiier, Rich-
-ai-d N Ithorp, NailianucnVade, William Thom-
son. James iJiir'.on, Jo»ei.h Kli»y, Samuel
Gibhs, rrancis C harlfltMi, Jo-ic|»h 'i'vley,
Carstairs, Lol»b, both noneoiil'oi mi.>t
preachers, Mduard Norton, John Uow, Juhn
A\ lief, ami J«>iiii Athpfton.
** Ford lord (jray hv'w.ix apprehemled, made
lijs esca;»e out of il:e hands of a Serjeant at
Anns ; ami Arthur lale tarl of Eisc\, iM-inpc
rommitfej to the Tower foihiyh treason, kilkd
himsflf.
*' OthiM-s have been taken and (•ojinisilied (o
custo'ly ; MKue of uhom, viz. the h.nl Will.ani
Russef. Thomas WalcoiK, William ILme and
John Rouse, have, upon their trials, bien con-
victed, attaiiilcd, aiid exei:uted aceoiding to
law.
** This we thought fit to make known to
our loving subjects, that they biding sensible
{as we are) of the mercy of God. in this gn.al
Ueliveraj5ct\ may cheerfully and devoutly joyn
xvith us, in returning solemn thanks to Al^
mighty God for the same.
** For which end, we do hereby appoint the
9lU day of September next, to l>e observed as a
day of thanksifiving, in all churcfaea and
<hap«ls witbin tbi^ our ikiujj[4oiB •of Koglaodi
if a grand jury have not this power and ao-
domioion of Wales, and town of Berwiek npia
Tweed, insucb maaner as shall bo by as di-
rected, in a form of prayer with thanugiviaf^
which we have commanded to be prspared^
our bishops, and puUtshed ibr that purpose.
'* And it is our plosure, that this dfclsn-
tion be publicly read in all the said churchM
and chapels, as well on Sunday the Sod of 8e^
teif4»r next, as upon the day of thankigiTlBg
aibresaid.
<' Given at our Court at Whitehall, the S8&
day of July, 1683, in the 35th year of «s
reign."
Somewhat earlier had been poblisbcd is
Scotland the following Prodamatkm for a
Thanksgiving:
Proclamation for a Tha?iksciving, Augur 7,
1683.
" Charles, by the grace of God, kinfp of
Great Britain, France and Ireland, defender cf
the faith : to our Lyon king at anus, and hit
brethren, herakls, * macers, pursevaots asd
messengers at arms, our sheriHs in that putt
c<uijunctly and severally , specially coMUtute,
greetmsif T to all and sjndry our good sob^erli,
greeting : Forasmuch as Aliuiglitv God, ishii
great mei-cy, and by his wondertul provideooe,
hath brought to light, defeuU*d and confuunM
a most unnatural. tratten»u«i, and dtabolicil
conspiracy, contri\e<l and carried on by penosi
' of fanatical, atheistical, and repubiiran prin-
cipus, lor taking away oursacreil lil',aDdlbe
' lite of our dearest brother James duke of Al-
bany, subverting of our ;>overnment, aud id-
' volving these kingdoms in blood, c^'dIimoo
and miseries; concerning which treasonable
. eonspiraey, we have emiitcil niir ro\ al IKctara*
lion, to all our loving suhjecls, at our conn at
', Hhitehall, the 'iiitU of July last, in this 3. Mb
year of our reign, which wc have unkMCtltDbe
, reprinted here : and wc U^Jng deeply senwWe
of the hiiinbie and grateful praises aud ad'^ra-
tion we owe to the Divine MajeMy, for diii
. great and si^:nal instance of his waichtui cart
over us, wlioiii he hath so long prese >ed,aod
so often delivered by miracles, have, outof onr
religious disposition, readily approven ot aa
humble moiiuii made ti> us, tor cummandio^a
solemn and general thanksioving, to be religi-
I oiisly ohserted throughout this whitle king-
I dom, to oHier up de\out |>raises aud thaab-
! giwng to Aimight\ God, 'or <hi> eminent and
! mii-a.-ulous delivenuiee granted to us, tad in
1 us, to all our loyal anil dutiful subjects ; ai
also, fervently to* pray, that God may coouav
his gracious care over us, aud his mcrciec la
these kingdoms, and more and more bring lo
light, dHeat and confound all traiteroiis oos-
spiracies, associations, aud machinations agais4
us« our dearest brother, and gofemuenl : wCi
niih adficeof our yiiwy ctmcd, have ihor
rr win want ft siiillciviit iwi^ani fur
to kee|i the peace. Ulh Iketlar
fTATE TRIALS, $5 Charles IL l6Si.— /or Scundalum 3fagmhm. [1370
certainly to |irevent a miiichief before it oniea'
tbao to lie to look for a remHy when it htp- '
pens : ami tltr^ Inw pret'en prerention beyond
tijeremtcjy.*
If a jtiry <lo enquire of the crimes of male-
factors and bring them to ptinisKmeni, it is not* 1
fio much in the eye of tSie latr tar the correC'-
jcrr u
by this oiir royul pri>clriHia-
jctict 0 g-enefiil and soJptnn thmnks-
► be oh<''r- f-* 'I 'Mit^hual ihis krntr
ttU our !'• * ts may oflVr their
|ii«eft tinci j-*^ and tlieir fer-
rr« and its, to Aliiii^hcy
K'|»o^ lit and we strictly
chat^, that the saift nokrun
rcUtifioiisly and dcTOutly |>er>
11 r subjects and people within
,tng>loiTi. upnn the 9th of September
111 Ui the end this part of ditine wor*
Sand necfs^ary, may he uni-
tlie satnetiine offered'^ by all our
ill nubjei'ts, we hereby require
r<!idibhr>fis and ht^iliops^ to g'ivc
reof to the nuia^tors in their respec-
that iipmi thf* l^rd^s diiy imme-
'n*^ thf «iiiil Oth day of St^pteujUer
l^tipon the said 9tli of HcptemUer,
read and intimate thi^ our royal
tn, from the pulpit, in every parish
bgeth^r with our foresaid Decfarationt
our Court at Whitehall, as aaiit is,
they exhort all our subjects In a
itnl devout perfo nuance of the »aid
l^raitics, afid thanksgiving, a^ they
p favour of Alnn^Hity God, and the
I prcseriratioti of our sacred life and
^nl : rertifying' all such aa shall eon-
Mfectthis fHi reiicriou<tand important
^■fthaU l»e prfioteiled a'^oinst, and
H^tHJUteiuneriK of our authortty, und
B highly disdH>otf?d to our person and
rut ; and orduin these presents to be
Eler our signet, at Holy-rood'house
r Auf ustf 10tl3^ and of our reign
m Dominonim Secret* CoMCrlJi.
^* \Viu« Fateuson, CI. Seer. CoocilU.
^^ ^* God save the king*.^^
PBler, Fountainliall, (t DedsiojiSy
1^ Qoder date,
^«t 7th, lem. At Prii V Council, his
» printe<1 lleclnnuiitti aiwnt the phana-
I is read, and a T)ianks'»'ivin^ ap*
Upon the 9ih of Sc-pttmher, 1583,
lui all Scotland fiir itii dii;corery% and
laratiou to be re^^d through all the
I They would nut make it no a \^vrk
nil the jieople mis^ht hatre withdrawn
»ted ihetnselves from it.'*
rmojf tlie two, Wodrow writes thus i
L^ 1683. The touneil [of 8<^t-
Hnp a must flattering Addri?ss to the
B|Plit(ll«ttn(? hi« nii^enty nfH»n the
y of the Ptot, and ucquaintintf htui,
r were apiioioting a Thanks^iving^ for
» Aiigiait7th, before thttt Proclamatioo
^»gififi^ t^ ioMift in the Avconlii and
it is 8epteiTiber 91 h, l>elbre it is kejit. The oc<-
casion of this dt^Uy seetns to hare be^ to keep'
pace With England in theirs. The trials ^JT'I
the excellent h»rd Russel, captain Walcot, Mn]
Rou^, and some others, are in every body's
h.indii, aud their speeches and lettent in print.
When those were dispatched under colour of
law ; and the j^pivemment^ or rather the duke
of York, were rid of some whom they were an*
wilUnij sbouUl live, a day of ThsinCsigiring^ ig
appointed for his majesty ^a merciful deliver*
ancc, in Ensjfiand and Ireland. The Eoiflisb
Declaration w p etty large, and alled^sa ge* I
neral ioiiurrecuon was' desij^ned, and that m-'i
correspondence was established in 8cotlaod,'J
and that the earl of A riff vie, lorl Melvi)^ air
John Cochran, Mr, WiJIiain Carstairs and
others^ were concerned in it. This Paper was
reprinted with the Scots Proclamation, and or*
dered for solemnity's sake to be read twice>
from every (lulpit, to impress the people tbo
wore with ill thou>^hts ot the Presby tenaiiE^ on
whom they u ould i^x the Plot. There are se*
veral matters of fact in it, whidi, I doulit not, ,
were laid before tlte king* and council, but alter-
wards were discovered to be soundless and
false. It ii dated July 28* lt>H3.
** The 8ooUj Proclamation i«d:ite<J Anpf, 7th,
To throw an oiliuiii upon the Pre^bj^ terians
in Scotland, it is intituled, * I'mrlamation in«
* dieting- a ThanCsj^ivinn^ for tlie deliveranc
* from the Fanatical Conspiracy ;* and ♦ fana«
* tical,* the ordinary term tor expressing^ Pres-p
byteriaus, is i^nned in the biidy ol the Procla-
rnntion, with athHstical and republican prin«
ci(>k»s, and named in the fir»it rcmm, aa bein^f^
in I he sense of the penuers of this Proclama-''
tion, the worst of the three. They Ukewiae^l
make tbe kiiijf t<i say, * Thnt Providence had"!
* oHen delivered him by mii-acles ;* and in % I
fetv liiie-^ again, His termed * a miraculous de»
* liverance.* How well this came from lh**|
ii-ifu of court- parasites, and flattering ministen^'j
[ shall not dt'tennine ; but 'list plain, commoif (
dec!ency mii^ht have kept theiu Irom putting' I
this in the kii>|;'s own mouth, especially siuo^'l
it was not true.**
♦ ** Pitiful ar^iment. He fancies that
the oflirtTi of j inlice and other men are xmH able 1
Iti keeplhtf (leace, and therctorv th«f i^rand juryj
must have pow er tc» scandalize men m matterS|«|
from which tht*y ^h^ll Imve no means to jui>
tity 1heni«^lveK; and to d^iire thnr liberty 19' j
be taken from them, whiUtthey arc innocent tai
the eye or the law. Tlie pcatie halh l>ren wevl
kept many hiindred years, yet no ^'ranrt jnr^j
limilleil the peera^ and called tbem praiMat*
ments." MS*,
1371 ] STATE TRIALS, 56 Ch ae l bs I f, 1 684.— i?. of MacclesJUU^. Slmiiq, I
tlm of the persons that have oflWoded, ha fnr
pivventlngr tbe spccftdlug of the infectioo^ and
Ki caution o< hers that they do not o fien iJ . Now
this bc'iDg the e&d of tbe lau\ mi their loqaifjr
(nlncBna ad paucos met us ad omucs perfcniat)
ahull ibey have a power to brin^ 99mdeni 10
judgment aod not hare a power to prevent tlie
rotnniTssion cif the ofli?Bce9 ; and by declarmg'
llw j^u^ds of their featn and mffehenaoiis,
of^tein what help tliey cait have Rom tlie court
to prereot the accomplishment of their feare ?
Tiiat sure was Defer denied to any grand jury in
ibe world,
Tbeu, my lord, » to tlie next thiog' which is
' — i m this presentment, the tumulttioua
and entcvtaiianeni of the duke of
nth, 1 cannot tell whether this noble
I the plftintiff-did or did not appear at that
cUno acnoogat *■ those that met tumulluouidy .^ *
Hkit I may lay a» thin^ then stood upon 'this
discovery, suen aasembiiet of armed men ini^Ut
give ffeat umbrage to a grand jury. The duke
of Brtoomouth waa by his majesty *s prodama-
tion and dei-laration Eneutioned as coaeorBed in
the design: he i^-as under the accuaatiofi of an
iadiciiueot ; and was at tbe exigent ; fttid that is
here declared to be the reason and ground
of their apprehensioQS of danger from those
meetini^s.
And whether the thingv be true or ^Ise in
fa«t ia aU one upon the matter in this case, be*
fore your lordship ; though upon this present-
ment by the grand jury, who were all men of
good ouality, knowledge and fortune^ primd
Jiicie they ought to be presumed to be true.
B«t that 1 insist upon is that these are good
oauses of presentment, fkllint; properly under
the conusance of a c^rand jury in such a court of
judicature ;t and if these be not such, there can
certainly be nothing that can proj>tf Hy fall
under tbe conusance of a graiul jury of a
eounty.
M hen there hath been a liorrld eoospiracy
and treason discovered, of which j*onie that are
accused are atraintwJ and ei'ecuf«^d, othera lied,
and among them the principal person, wha not
long before had ivith a very great number of
gentry and oibers come into the country . mid
Uiero had been upon that account a turn u I-
loous diaopderly assembly^ why should it not
be rational for a grand jury in such a jaoclure
to apprehend those things might be dangwt ous
to the country ? And if they do apprehend them
dangerous » they are obliged » by their oaths,
and bound by the duly they nwe to God and
tbe king, ami by the"triist ihat is reposed in
Ibem, tm iiwjuisitore for therr country, lo make
•uch prudent ami discreet representaiiona of
their fears, and thegrtMimls and reasons of them^
• ** Was there any such meeting tlaund by trial
to be riot, or i-out, or Unlawful assembly ?" MR
t ** If the matters scandalciudy suggested
kad been ia due course of law presented, there
iiad be«^o no cause of action.'* MS*.
1 /* VVho said it waa a tumuit before the
law bath judged it?" MS
lo the court, beforo wIkmb tbcy m
that can apply proper reotd^; ioi
semrity for the preservniop of tlir
therein as far aa in tbem Qss, mo
Tentueot and prevent the dangm,
apmhensiotis threaten k.
My lord, I muat obterre ihiitUi
first action that efer wasbroagbtiilbl
1 will not say, the larst actum tint 4
brought against a grand jorv bsdwf
The anlhorities [qu, that] 1 UtetjuqWl
lordahip, that have been in al! iimt^^
dieot and modern. Grand jurrwi^
itied, but always protected oy lb*
those suits. And as those aetioo^ ^^,^
explcHk^ ia preceding ages, so 1 W^Jk\
see tbem take eifect in this; for ti ^^i
most dnugerous thiog if tbe lair i ~
theiD to actions for what tktf do
No mem would serre thie eo
freedom or cheerfulness^ in that
ever did Berv^ mued do it by <
not dare to do Itis duty, lor fear
erery man of quality would cOli
i^our lo a?oid it^ and lo the king ^^
want the service of the beat men ii '
My lord, to turn the tnUes a
consider the conseouenoea of this
gramtjur)* shall be liaMe to every
for what they do aa a gmad jur^<
be grouted that they mast be In
formation, for if an action will ho ^ ^
fof ntisdemeoning themselves a^n^^^
person, much more should an
agiiinst them tor their mtsbehavi
the government, which 1 bateirbt'
This will be to take away th^
the hiw and infringe the pt i
English people have by Ma|p<i
have grand juries lo accuse them, ^m^
enquired of by their country ai»d ^
bemre they be tried for their or
the Jaw will never auppooe thai _
thst which tsluirtfulaud pr^udieiil ^^
ple^ II as thotte auihorilies that I hi
your lordship do prove. But this ts
their great prejudice.
Notv then, here is a grand jui^ ll
pauueletl, and swom hf il*rr anA^ttm
thot have muile a prcs- i sui
as are within their en4< ^ :he c
of the cmirt iloniring oaiy td pcei
dangers to tlte government, by h%\
« '' This is the first libel of this I
a presentment- * MS*
f ** Vain, Vain^ if o man supers fr^ 1
out of the course of a grao«i jurvt
nunc uill be of a grand jury/* M^.
II '* Htrauge doetrioe of ik#
of grand jurte?, and ia only i
that whereinsoever a crawl jtinr i
of, and within the iaMtt of Ui^
rity , they cannot be <|ocrtioifcgj 1 1
any other lavifully authorize ia
Lt may be said of a ootkaUibAe, vet if I
hie eiUbdrity » he myal iotfar m ati'*
??^
i] STATE TRIALS, 56 Ch aelhs IL
Ibe pc*oe : if fW M 4otog ui ihctioii will lie
liaM tlM3ii, ihm liQiioiir and refutation of the
\ lliat rejiottth Mich « 4ra«t in gnitil juries
1 be i]]al»eacli««it and tba ptivile^ ^ uf the
( Uft iitTe llie itAU: of their country en-
«|aired of hy gentlemen thc-ir neigbbonrs, jn^
imkfl and in efieol dcitroyetl ; in regard none
I bt! iA illitiff to serve in the oflice, or dare to
lorm tlie duly of it ; therefore 1 hope ymir
^ibip and the coun i^ill take care of llie
r and kia people ; that neither the goverii-
iwantdtie ftecaritVi nor the people have
"|i MS intrioged^ especially such
%u al ones as these, -I*
i fur these reasons I conclude, the finit
fal point or question in this case; that this
|d ' 'r for theplfiiutiff, agaioRt the
u3 merits of ihe cause as tlicy
;iuacti^ iu the matter and i»ub«tance m
ije record,
Ddiv, then ai to the plea; I come next to
r that as it is here pleaded ; and as I
r«j we have a good case of it for the dc-
laot« upon the merits of the fact ; so 1 hooe
tbave by our plea, suiEciently and lei^lly
IkflMl, and Tindtcated our right to that fact :
truly, hotter we could not hare pleaded,
I I can apprehend ; thooeh these gentle^
I W0tild have bad us indeed pleade<liu aome
r inaiuier,
1 1 come to speak to the main matter o£
ill endearoar 10 answer Mr. Ward's oh*
I that he has been pleased to make to our
Inil,
1. First, aayshe, as to this matler of
tbe defendant hath not set forth the
[ibil he says were deUverevI to tliem hy
k to eni^aire of, To thai I answer*
|iti With submission, it is not neeessaarj
us to do so. And for the case h no more than
It ts the oath of a grand jury-man, * you
ddij^rotly eoauir*5 aij<l irae presentment
oi all such tninf^'s as shall tie p:iren you
tiarge^* hc> hut I think it is f;ddom known
\ all tl)e articles of wlticli the court hath
nri't or th«* jury power and autliortty to
It uj»on» are given in charge ;
<(' judge gives those in his
thui ari' Ate most material,
|[ihecase cotnt*^ to tlii^i here is perhapa
I i«,.. .,i.«»|^^ i,„t that 1% a
|ci 1 hath coDOsrance,
^uirahle of by tlie
' do enquire upon it^ and prtsetit :
rihts ? Ve«» sure* and it is done
ouahly rvery day ; if it bean ar-
lie judges power and rommiaaion
Brand dctmnine, thry ought to do it by
r oaths, and it inn k nu sattpfHction to the
Of integrity of a grand juryman^
iwse the judge omitte<J to give that
in charge, he should neglect tlie trust
1 It ie a aad privilege to he accused and im-
1 wjibout being heard , or possibility of
»4>rr<perition»,*' MH,
^ Ueekeiy." Bid, ^
l€^^-^for Scandehm IWagtmim/K £J
reposed io him to present mischief and da
to bbking and country « It ia juetifiabk cer^l
tainly to present in sacli a case, aiid therctorti]
the i>articubr attioles need Dot be set ior tb, I
if thfiy were, perbapa the lbui|r pfeaeoted i
not one of ihem, and yH tne
might be If'gal.
Oij, Sod. Next, it batb been aaid, the d^^
fendaot hath in his plea, alledg^ that
warn proof) concerning the pbdntifi", and
the presentment was made, * sectiiiduai eri£
^ dantiam ac testimomum eis ibidem exibiL* d^
*■ prcsiato comite/ but he balfi not particulsrlWl
set fortl}, what that evidence was as he ough^
to do, they say ; and Mr. Ward quoted my [
Vaughaa's opinion in BusholPs case.
Am. But I hope there is no great matter ill I
that ohjeclion^ nor in tliat authority, for ml
Busbeirs case that was a return made from m\
court of justicei and that was of an act of that ]
court to a superior court* The court of stfa# I
aioui} in the Old Bailey, did fine Bu^heli imd j
other jurymeJifor fiuding a verdict contrary]
to evidence and against the direetioo of tligi
court, but did not return what the evidence wip.1
thai the court might judge of the cauae nFl
commitment Is the cose the same herelj
We say and stand upon it, that we i
our oaths to present, we did it aoconlifigf t^l
the evidence ; and that evidence we by the es^l
preas letter of our oath ought not todisoo? er, for ]
we are bound to keep secret the king's coni^^l
nnd our own, and our fellows/ and would jom]
have had us break our oath upon record ao4
shewn openly the evidence, which is our oouii» I
sal, which we ou;(ht not to do? That therefore^]
can lie no ohjecticin in this case ; but the pic^ J
will be well enough, though we have not saii ]
ivhat the evidence in particular waa. Ttt^J
jury theuiselves are judgei of the efidence i j
ana take the preaenlojent or iadictment la lie I
well grounded upon their oaths ; then saith Mn. ]
Ward, ^
Obj, 3, fit the next place the traverae 'm ]
naught, for here are several matters cootaiaed ia
the declaration ; and though one sbnuld tail, tb# ]
other or some one of them would support the ac«
tioo, and yon have answered says be to thai
presentment, but not to the coaspinicy. Td
this I answer.
Ant, The meeting together, that is tbf^.
conspiracy, * I suppose ; lor they could noi j
cen^inire together unless they met togeihorf
the drawing an the present mem thai is llt#J
writings and tno m axing of it to the court.*]
that I take to l»e the puhlicatiou : but now w% 1
ae I conoeivtf> by thi»i plea do cvulevi and avoht
it^for \\o say we did upon our impiuiclJiiig la^ '
onr lieiuk togetht-r and so we met alKiul it, aa4 i
that aniewfTs the couwpiniry : indeott if ir did ap« -
pear we had met and done this, after the* cimm4^^
ntid discharged usi from the duty of grand jiM
rytneu, all this hsd inaiutaioed tlie cbarge^fl
* ** There may be another kiadof mtbdoot <
eeospirtcv prave<l upon trial, and tberelbve if *
opf hi to bare bt«a ptead«l unto.'' M6.
1575] STATE TRIALS, 36 Chaklbs IL
m oonspiracy. But being met to^ifetber apon a
Iftwial summoDS, and impanelled, sworn and dis-
chamd [tfx, charged] as a grand jury, and so
makmg this presentment, we have purged that
meeting* which otherwise wuukl na?e been a
conspiracy, and justified it as legal.
Obj, 4. But, says Mr. Ward, the traverse is
naught for another reason, you have not tra-
Tersed the whole and every part, as you should
have done, and said, < non culpabilis depreemis-
' sis nee aliqua inde parcella.'
Ant. But 1 hope, that is not so, for T desire
to know of Mr. Ward, did ever any body in
pleading not guilty, say * de prsemissis nee de
* aliqaa inde parcella ?' I never saw any such
plea, it is always taken for granted that upon an
action brought for divers things, in a chain,
which each of them are act&oni3>le^ * if a man
pl«ul not guilty <de prsmissis,' it is of the whole
and of every part, and if upon issue joined be
be found guilty of part, that b enot^^hlor the
plaintiff to mamtain his action. •
But pray what is it that is the main matter
upon which this action is broui^lit ? (t is tlie
preaentmcnt which contains this matter that the
plaintiff [alleges] to be a scandal to him ; tor 1
must crave leave to differ from Mr. Ward in
dial matter and take the law to be otherwise.
If these gentlemen had met together to consult
and contrive such a presentment, but bad not
ynade it or framed it, I conceive the action doth
/lot lie: for I take the law to be plain, no con-
epiracy doth lie, without some act doth follow.
Indeed an information would lie as^ainst tliem
at the suit of the king, if so conspiring, as an
offence, if they had not sufBcient authority to
justify them in it : but an action u|)on the case
would not lie for the party, lor it is the pub-
lishing which is the defaming upon which I
must ground my action.
So it being a coniplicati'd action, thnuirh it be
made up of many particulars, vet uiie liatii ile-
Ecndance so much upon another, tliat ull make
utone cause ot'action together ; and then, with
submission I take it we have as well ausHcred
the whole as can be.
Obj, 5. But then, it is further cbjecteil that
we do not conclude our plea, * pruiit patet per
• recordum.'
Ans. Truly if \^c had, [we had] done ill, and
put ourselves upon an issue wliicti we could not
well have maintained, and yet our fact ne\ rr-
thelessjuFtifiible ; tor this preaentment is nut
m record, neither is it necessary it should be so.
Suppose a man were for his ju(»titicution to
plead an atfidavit in court in an actioi: tor words
for saying he [the plaiiitiffj was per{iire<l. inusi
be alledge, * prout paU't per recordum,' is that
a record? and yet it is u ^ood justiiici.iou.
Can a grand jury make no prcMiutuicut
but upon record ? The piaciicc and the law i%
certamly otherwise : they doit eery day in
paper, in English, and not u|>on rcconl. vVliat
then is this preseutnienti:' y- u will say, it ma}
be, it is a warrant to make a reconi jy, if'tiie
clerk of the assize, or cierk of the itcace will
\axm it into Latin, and form an indictment by.
l684.-«£. o/Mdcckifiddw. Siarkeg, [m
I and when it is formed intu an indKlmeni itai
record; and then it not being a record, sam
the party bring his action before thecMea
put it into the form of a record, shall Ik m
justify by it without alledging it to be apos
record when there is no such rroord?
But my lord, this is that which 1 nr
for a plaiu and full answer to this obwcMi';
! though it be not upon record, yet I rely spi
\ it lor kw, they may by their offiec, asd hy
Uieir oaths are bound to prrsvnt te ik
liurcb [qu. court] such matters as tbcym
in their own comciencea and judgments as-
vinced are for the security of the peace of ik
country* though it be not Ibrmally upon r-
cord, a[iid then it needs not be alledged ' piM
* patet per recordum.'
Obj. 6, But, says Mr. Ward, you bare sH
answered our whole dcelaratiuD, tor part rf it
may be true and out of Chester, and so ant jai-
tifiaUeby this plea, that reacbetb ouly to wbtt
was done in Chester, for it may be the awip*
racy was in Berkshire. To this I answv,
Am, Besides what I have aud aboot Ibt
point of law tliat the conspuracy akme aoiU
not bear an action, I say that their meeCio^ n-
gether upon such an occasiuu is tbe ods-
spiracyt t ^^ ^^^ ^c have solely csa(iaBdi9
Chester, for there we say we were impH^
swoni and charged*
Again, we have given them as full a trafctve
as can be absque hoc, that the defradml b
guilty < dc premissis in com' Berks,' ur ote-
where out of the county of Chester, sod so «t
avoid all places in the worhl, but ouly Cboter
' vel aliter, vcl alio modo,' than as we bireil*
lo<l»ed by the plea ; so that 1 know out ho*
tjjere could have been made u plea murveuiu-
prehensive <»f the matter chari^l in tbe fiec!a*
tion. It' Mr. Ward wouhl liave tukl us hi*
to do it, we would have taken notice ofiiati
precedent for another time; but I laoR Boi
I 1 must confess how to mend it: as it now strati
1 take it to be as full as can lie.
I Oij. 7. lie next objects that we do DOtitf
I or aver in all our plea, that the presentueot ii
I the plea, and the libel! in the Dcclaratiuo in
I the same.
Jns. Surely, my lord, we do suffiriciitly
niake it appear to be the siime; for we ss\.lbs
is all we di.i; and that we are not iruihy oiaf
of their cliarge in Berksliii-e, or out orc'bt^ii^
or any otherwise than as we ha^e alJtti^'e'li
then it mu?>t be the same, if it be all weiini.if
they do not like what we have said in uiir bar,
or II ihey do not think what is there allMlirt^l »
be truL-« iet them if they can tjke issue ujks
our traverse, and prove us -ruilu m u"\ «f.h«r
plate but in (.-heshiie, whitluv w..- i'V ojf
pifa hi.e broiiMlii and coutiiu-d it: iI ihei^*
* *' l>ut aiwavs with this pr..%:so that il't-v
injure no persons nor go out oi the legal tnMJse
oljuslice." MS.
f *' That is giatis dictum only : There na?
be another sort of conspiracy and ai^iveiiNil
proved." MSS.
F] STATE TRIALS, 56 Charles IL
I not let llitm i]o that, J cannot help it. If
itf ^re think* I hope we have
<1 wiiui they «ay against us.
'&^. U4 Ai» U iUe initt matter that they «av,
|l It amounts to the i^eneral isi^ue ; and the
^um€nt ihey jj^mimd thereupoo :
fni. Truh% 1 will not much contend with
Bb<»tit it : J do think aJl this mutter mij^ht
rn giveo in etidencp -upon not Csuilty
; and yet I thiuk »t the sjftinc Uum that
iot any cause fd* Demurrer, But not to eu*
ripon thni point I would only urge two
ig^t, ihrii A man is allowahl** to ple»d spe-
ll j rrheic he may plead the (general issue
1 give the special mutter in yvitlence, iti two
when a defendant by bis plea dotb
ttnn colour of action to be In the fdain-
It she wet b soine special matter of fact to
it,
idlyj w!>ere a man pleads matter of law
admits the fact but is nut proper for a
r :' ' jch rul(*5 dit ti raided in
pb^ se, andso ly »hcin,
ftn 41H' iifit, when tin- ti. )viiij-int by hi»
fkitb admit some calour of action to lie in
I pl^ti, lirf 1.1*1 sheweth sume speciul matter
W€i li, tliere he need not jdcad the
, j ii may plead specially, not to
Ibe tvbole matter at large before tW i\hole
rl iind a jury.
in the tenth Report, lb. 88, Dr. I^ev-
*ti Catc : Action of tresjiass is brought by
' ifamt B* B, pleads that queen Elizabeth
of the Rectory of Clee^e, and de-
to C. for lite, hut* setts not forth the
Putents, who demised to D. for vcars,
Fo lort^f and B. as nervant to 1>. did
»; what is this to the purpose ? It
iea for that reason, ibr not seitiug*
t!i« letters Patrnts. But if he catnea
uys C, seized in Fee made a lease to
^for hit! «nd afur to A- Tor liic, nod B, made
a«e for years to D. detcriuiimide upon his
B,dyes, A- enttrs, D. brimxs trespass; and
allow H a good tttle and cati^e of action in
If it were nut for this sufficient matter : In
sh p case the plea is j^ood, it is not indeed a
title Qgninst A. because I sbtv? that the
of B. on whose title D.'s title doth de-
ts ii ined, and my rig;bt and title
h I iiy lord, in tbis case be might
rivtn uiv matter tu evidence upon the
I iusut ; htU in rcijard he gives colour
's uctif»n in that case, it is.a good
denmrrnhle to, as aiDOUDting to
issue.*
This is not very clearly stated. The c^se
10 Co. is thin;
^ J4>bn Lf>vH?*Id, f>. D. brought an action of
I in 111" IJench, Hill. 8 Jac. lic-
it 1 '? J M <>n ry 1 1 illary , for com
I Iway ul bid Clete,
i. The defendunt
tii» m:m\ Ukui i^ij( r tj i!^haGabc:th wasnei/^l
- Rectory of Old Clev«, io the matv
l584.-^/or ^candatkm Mitgnatum*
*
That is in flic case of an express colour
given, now Jet us see bow thu law stands, in the
case of a colour implied ; as in some cafce» ih«_
books speak of a colour implied us well as c
prest*
As if a man brings an action of trespass for"
tnkin^ away so many shcafes of corn, th© de*
fendant comes and justiJlcii;, and says I was
parson or rector, and those sheaves were s«>,
i»ut for tithes, an<l i came and took them t hero
needs no format colour be Cji* en, but a very
f^ooil colour of action is implied \ tor be admits
tlic sheaves gf corn were the pIuintifT's anil in
his posBe<;sion, but now hn sets forth a right
in the diJVndnot to have tlicnv and take ihcm.
The plnintilf had a riifht i\£fainst» flU the world
but him, and nguiust him tooil he bad not such
a ri^ht sjR^ciaMy set forth. *
And DO question but this Naction woulil li^
here in our case, against all mankind but tho
jury, and ag-&tnst us too, if we bad not been of
a jury, but here we bate avoided the action by
such special matter. It is in truth a gteat
scandal in itself, but being* done in this manner
by jii^nllemen that were of a grand jury, tl
shalt nut impeach us.
county, in her demasnc, as of fee, as in right
of thn ciown of Eneland, and by her Letters
Patent ^0 J unit 135 ot her reign (without say*
ing, here shewed forth) demise*! the said rec-
tory to Co oand Pro wse, for his life; who 16
January-anno 3 Jac. Regis demised the said
rectory to tieur^i^e Pincoinb for eight years, if
the sanl Conand * lam diu virerit^ and that tho
defendant as servant to the said George, took
the corn and hay as tithes severed from tfaa '
nine parts ; and averred the liter of the said Co-
nand, npctti which the plaintifT demurred in
law, and shewed the cause of his Demurrer,
becauj^a the defendant's pica amounted to the
general issue ; and it \fas (iel»iif!.r,-a hi th«
King's Bench, that the bar < icot,
because the defendant in his pi > >»hew
to the court the Letters Patent ol queeii Eti/Ji*i
beth made to Conand Prowie, which the couil]
took to be matter of suhstunee, and wliich tb
defendant ought to ha*e j»hot*>'d forth,
thuu^^h he in ^vhosc right he jubtitiefl, had but
part of the estate. H hereupon u writ of et
was brought in the '' ' .r cliJimber^ i
there ttvo errors w^ *iue wbi':;h wa
asaigneii by the plaiiruu m liitr caubo of ]
murrer, jc tlrot the said plea amounted to
g^npr.' '-^"" t.' -»t,vo ii. ,\. ^oniidot gave
plai( '• no jodgtB
ougliL » _ ^ ..ttheddTendo
but the court oi « ruled him to an*1
swer over : ihr it for \^anl of fibeiv^l
ing the said I/elierH Paient the court uugbli^|
not to have given judgn)ent against the dtf«J
fenilant. Atler much aignment, it was retol
ed^ thai iti (bi4 case colour ought not to
given to t' illV and u1»o I bat tbc le
tor years « *v the UtUrs l^atcetiuad
to the les^ei' i >t nic. {|»a tb« judgui«lll 1
was afliinned,**
4T
r errorj
. babir'
,,.^|ev'tl»«rtfe*
IS83] STATETRIALS» 36 Charles IK l6H.'-E.9fMaecie$fiddw.Sttrbf,[m\
Though they may make uoformid ttidiet-
mmiU and lie excusetl io it; yet nothing is
nrcn&tBblr^ liit tvUat is an Citience ag-dinst the
law, and what ilicre is u form lor,
Ltt the e^onnsel hrio^ aoy form or precedent
foriurh an indittTJientoui of the Umtr^» bench,
or that had the allowance of t^ny of ihf ^reat
t!0urts of judicatare, aud [ will be coaclude^ hy
it
The oEce of a Gnitid Jury is to present fact ;
they hare no judgment of law, and therefore no
f>owei' ofo^nsurc; hut ought to leave the facts
build by thera entire to the judgment of the
eoort.
If more than this be once allowed them, my
lords, the judges wiU soon find their authorily
iindennined liy popular aoJ factious Grand Ju-
ries ; and defame * your inoceedings with the
•aine liberty.
With vvhut beat hath it been contended lie-
iweentJie]ud(>-('s&ndC]iaud Jiiryf whether they
ought to tind liU maukilluigmurthtT. For that
they are not juiltjeiiof the law ujwm the Hnnuu-
stances of the invi^f ttiai £ecm to extenuate
the roankilling^f and constitute the fact not
muither. The judges have gained lhi« clear
|)oint, and it is seiUfd ; hula chief justice (I
think) did li>'st peiish in the conflict. I hope
!»y amplify ii;^ llitir authority you ^ill give no
iporc* occasion to rcvi%e disputes.
Grand jaries wore never lakcu to be judges
of the law : and will vou allow ihem to bring
patter prejudge<l belore you, and instead of
ixplaimog aud upening matter of f^cl for your
judgments, tell y<'U *d matters that they cen-
murc, but in sjch a manner that the truth of
them cannot be enquired into hy yourselves :
©nd indeed tin y h^Te foreclosed your enquirj',
«md have prcjudj4cd them to your bands,
Tlie ivisest judges have been carefull not to
iottrfiose in tuntters of fact, becau<;e they arc
dischtkrged by the law from that veKatiou^ pro*
vince : rut if you allow ihcm to interpuj>e of
matters of law, there is an end of your au-
thority»
Neil her hath the Grand J nry any conservancy
of the pence, nor ran the judges use the autho-
rity of the leiveleimncy, who are to secure the
♦ So in the original.
*J- As Vt the respective provinces of Judges
Jind Jurot-s, Hee m thiii Collection, vol. 6, p.
10J3, In the case of MachcU v. sir Wilham
Temple, {2 Shower 883) whei-e one of the
<)Uestion8 was concerning the validity of a will.
The coijrt and counstT agreed on a K}iecial
Terdiet, but the jury being obstinate after twice
or thrice tient out, would fiiid for the plaintiff,
who was heir at law, atthough there was a
floiihttn the law, saying they were all of opi-
piioQ it MAS no good will ; and thereupon the
j>(»Jl was demanded that they might all of tiit?m
teverally give their verdict, which they alt ac-
cordingly did for the plaintiff: Whereupon the
^Teporter reoanrks, " the first jury that ever
rtfused A special venlict OQ a point in law,
fhvy fidl iucmriDg the danger of au at^ut/'
peace by arrny m^ and disarnriair, ift
caiitkm. Butjudges, and Graad Juiiiai
nisleni aud itiformeit, enqiiirt of
censore aolhing, but orert lactf aod
against the peace.
No reason can be drs^ji frrmiw
peace by a yereon tiir
applying himsslf to ii
stating the reasons of 1
the person is require*!
does not entitle the Or
a lord levetenaut, nor tl
ajustice of peace. I pray kJ uic bjKji
in this point.
Mr. Holt himself batJi no
' tify these proceedings of n
stroying the f ' -' '
and hy the
couler tor Ih^ ,.
other ways of pi'
I of Oyer 1*0 d Ter
by tiidictmeut or i
He forgot Htui
It is our security Uiat iw
peached or accused, or Iiim
i in questign, but hy tlie •■
order to he trieff for
chari^ed in such i
he able io make l,.
tnifisioa of Oyer and
to eiKjuire ujion the out
men, and bv 'iny oth*
truth of the f;ict ms^ ^
them uo aulbority to id.oi,^ ^ -xw \
the fundatnentnU laws of cbarc««l*^^
tiDctly, so as ihry may !-<• st.-^'
fended. Nor givea il
thing they plei»se an i'^ i
offence, hut as the law directs. ^
Nothing is more sacred thaift ***,^,
of power, and nothing more ^'J^
our government, than to al»oli»b '"J?^-^
not be done but by fuppres&tn^
and otficers, and creating new, ^3
same atlowing them to act as ib^ J.f
iore officii/ And therefore this **^"lL^ i
plaincs of an undue extent of j^- ^^"^aj
lice to hurt and oppression dci^*''* ^
gard. ^j
Justices of tho poftce ha*ep»'^*'*'' - "
reoogntzaitce to the peace, and
of Oyer and Terminer have \k^
bat we know also that tbt« i^
brought into ruW, and determ'me<*<^'^
reijmre it. But this is upon cutu/^^fl**
aons ohDoxiuus to daiiigcr, and pni»^«Kflf ■
feares reasonable. It is not to li(? ^9»* ^ I
panic iears, groundless apprtiicow*^ ■ I
persons that are not coneemeU ialiM:^'^*' |
But a grand jui , i Ihc ^
and it dotli not Iv -m, aoc ibj <
of judicature out <fi xuk- t-«)ur«e d' \t»t
vide i'or i!ie neaoe* Extmoidi&tfy c
to be provided against by the j
• Hee their Casa in this C^ilWition.
p. 2S3.
ntb*^
l^i
■Ba] STA
] STATE TRIAI-S, aGCiiAELES U. l684.--/br Scmdahm Magnaium. [1386
Ibc coiinu> ol'taw must (irocfecd* Shall a Gmnd i
V :>r (iivtenee of such
i I ok could think tit
riiriii uiai upjiMULiiijij^ that call them*
' cuiinty^ ti tt)ivsL iitcougrucras aiul un^
SfMiineiH^ of a dozen or tVfO of men
pd tot;<iiiiher by chance by the under*
I rolniiitcr to the court iii finding indict*
uC courfp^,) take uj^on them to inno-
e |j|^f, and at their discretion tind uew
ttts for lUc i>eace. The law will be by
_ eari» tjuite perverted, and we fall under
Sift, huiiM»urd and capriceSf and malice of
) >re watTantable for a Grand Jury to
J fjucced his authority, by pret^nd-
rviccM to the government, than it is for
liun iivio iinniJ not authorized ihereto,
nd public dung^r*
"t» repres^nteti by Sir, Holt to your loi-d-
, as a very Mnaft thiiig»that 1 am rec|uired
Ind murctiei* for the pt* aee.
ceniiireil by tlnfe presentment untried,
nudjfiMJ by llijs<jr»nd Jury and fjued my
lAnd loyalty, my prince's favour, my
ty, and doomecl ever unfit to be trusted
hi'i tiiiije.sly in any office in the govern-
li!» in any cmnmi-^sion even of the jipacc.
151 tit that prccodents should be searched
found ont to warnini your lordships to
^utl|jr(4|2)y{|^'IJQD * u'hich ^eeks remedy and
lion u^^uinst MJch iosutfcrahle injury,
cd upon me without any reuson of the
ut shcu n either jd his presentment, or
ieuci& of the action, for justifying^ this
id o^iprefision.
hl*esc men were under an oath at tliis
fa Grand Jury man «aiid under the execu*
liat oificc, will not draw any matter that
_ i not to th;it otiice and mmislry under
||r cKith, or ju%tity them in whatever they
dl do, savt or urite, that is foreign to that
Jf they have no uulhorily to do what
have done, their |dea that they did it as
lury men inhiinccth their wrong:, while
|k to entitle it to ajiidimi pri>cee«hug'»
\h V itU hull by your lord-
ttaee.
'\ by Ulr. Hnlt to prove
t a Grand Jury for their
U)C prtijentrueot« were of
n criminal, clearly within their charf^
idi IB mi senacibla that this ivay uf pro-
ja* by ^beGruod Jury» that
he juslificfi their pro* ei'dinj|j. in luaking
i hbcU. I f p r^iiy »< it is inr my corretliun, * ut
lus ud umut'* perveuiat/
) *»bit'h I come to your
tlutasu > ;iii-
I forthesui ii»o,
traail iury I
01, ft p<.
itch no man w .^ * »..l,.. «, ,^-*.^...i.,j
' lawe», aif to allow thctn.
^o in JIIS.
The biodingp to the peace is sometime tht
censureii of the court, upon repeated o0eDce»»
committed^ presented, and tried. But a Grand
Juryes presentment of facts untryed, are not^oiw,
y ictive, aud they hnve no power to censure, or
[iromote a censure. This is the business of the
court.
Matidous busy budyes^ that arc hnrtlul by a
pretended officionsness, liave been always held]
ctiasttseable as wrong doers.
Grand Juryes are to enquire of traytors, anj
treasons, biitthis with great prudence, and rea«
sonable enquiries, and conclude upon probabl(
inducements. Bot not to dishonour the go-
vernment by tiporting^ with men's honors, and
liberties, and make a ^ame km\ jest of judiciail
proceed in jSfs. They had bettiT ^ive their ver*
diets by tlie chance of a die, which hath *
censured, and fined.
This presentment condemns itself and ap
pears to oeabsunl aud unreasonable, and there*
tore malicious, and false, and couseijuentlf
actionable.
Ill is may be the firet action of tliis kind
(aa Mr, Holt says), and this is the first libell of
this kind called a presentment.
I allow a Grand Jury, and no other officer can
be impeached in the honest discharge of his of*
fice, with the best prudence they have, though
not always in the best manner, totheykeefi
themselves within the verge of their ot^ce. B>
it is Um slipht a colour to impose ii|>on yoor
lordships, that therefore they are not to lie an*
swerable for their extravagant and factions ex^
cesses. Where they use the authority of ibcif
office, maliciously, apparently, and thatof thetrj
own shewing, the presentment itaelf makegj
and declares their fault,
tf a Grand Jury will alledge reasons for n<
Ending a bill, and say though the proof thej'
think probable, yet tney have a good opinl
of the man, and think Uini iunoceiit, such
behaviour is (incable.
If therefore they wiU present a man, and]
say he hath beeu seen in such company,
done an act which the law doth not ceusur^j
biit they will take upon tbera to blame, andi
condemn, ui action »«hnU be nllowed to lie
the case. For it is against their oath and of-
fice, and directly against their duty, who are to
present no man for hatred or ill will, nor spare
any man for favour or affection. When these
do not appear they are presumed innocent ; hut
all presumptions duly made tn favour of offi
cers vanisli upon clear evidence of malice.
And if no rt^an uiH serve in any office,
crpt he be indemnified for all the disorder
oppression he shall commit in that office, it f|
much Ijetter to wmoI thctu ; for no malice is
mischievouKf tis that which is authorized.
M to thtit which 3f r. liolt says. That the
' lint being a Graml jury -roan could makoDCt
« :uid uiorc (Mirtirular a justification then
..V i.,ilh ilrr *'v .1 * !.-> ;- t.^cLr ,.» nr^thof
sect^^cy, > -jur)'-
mau'sotiili, ^--' :,.... ^t-_i.^:ns, &c.
Thii ooth doth not obltdge ttieni to supprew
ex-JH
1
I387J STATE TRIALS, 96 Charles II. l6B^^E.<^ Mgceb^Uv. Sim*^. [1SB8
and as-
tlieir presentmentiy nor to proMcnte,
si8ttb«m.
In this action the Plaintiff hath pimroked
tbam to make ffood tlieir presentment^ which
they ooght to do, if they can, in his mi(|esty'a
•drriee.
That clause of their oath can be only under-
stood to this purpose, That they should not
give notice to a prosecuted criminal of his ae*
citsation for the makinff of his escape. For all
the witnesses to- an indictment their names are
ingrossed with the indictment, and they are
sworn in court. And it is now in practice to
examine the witnesses publickly to an indict-
ment.*
Mr. Holtusetha multitude of words, but
comes not to the merits of the cause, but touches
it as an ass mumbles thistles.
SIR WM. WILLIAMS'S ARGUMENT.
£Tha MS. of this article is in the hand- writing
of Sir William Williams ; as is also the
following indorsement upon it : '* My Ar-
"gumcnt in the court of Exchequer,
•* Hill. 36 et 37 Car. 2. for Charies earl of
** Macclesfield, * tam pro Domino Rege
" quam pro seipso' plaintiff, against
**John Starkey, esq. I>efendant. Cur.
«« advis."
Of the many passages in the maigin of the ori-
ginal MS. some which are merely abstracts
of the matter in the text are here omitted,
and some are here inserted as notes with
the designation of" MS."]
TuE General Question.
Whether there be a good cause of action for
the Plaintiff against the Dei'endant upon this
Record?
That there is a good cause of action set forth
for the Plaintiff in his Declaration I buppose
cannot be denyed ; for I do not observe it con-
tradicted by Mr. Holt, that argued for the De-
fendant, and I suppose this will not be insisted
upon.
The Special Question in this case I take
lobe:
Whether the Defendant by his Plea hath
sufficiently answered the Plaintiff 's cause of
action set forth in his Declaration ?
i conceive he hath not.
In my way to the aigument of this question,
I shall observe the parts uf the Phiintiff's De-
claration, and the parts of the Defendant's Plea ;
and by comparing them endeavour to satisfy
the court, thai the Plea doth not answer all the
parts of til e Declaration.
The Declaration consists of three parts.
1. It sets forth a false hbellous writing, al-
* As to this, see Lord Shaftesbury's Casey ?oL
7, p. 105, of this CoUectioo.
ledsjng it to be devised, framed, writfcn and
published by the Defendant with othtnsaniMi
ihe Plabtiff ialsdy, maliciously, by con^incj
without any lawful or reasonahte cause, at
Wantage in Com. Berks 17 Sept. 1683
To have the Plaintiff, bein^ a peer of the
realm and a gentleman of bis majest^^s hd
chamber, rejputed and taken for a penon dis-
"'^ ' ' ' ' 3 andadistwtoof
afieded to the i
the peace ; and to expose him to liis nngerty's
displeasure and distrust.
S. Itsetflibrththe designeoftfaislibsllkBB
framed and published.
3. It avers the Phdntiff never was <§-
affected to the government nor n distuiber sf
the peace : nor gulty of any of tfae msHoi
contained in the libeU chaiged against hisD.
4. Itsets forth the ill effects of tUs IM
upon the Plaintiff that the Plaintiff hath kstlhs
grace and gooddpniion of his majesty: Anddi*
rers false rumoon and scandaM are tho^
stirred and spread among the noUos and stkv
his majesty's sufcyeds of the Plaintiff,
I shall have occasion in my Aiynmsst to
make many observations apoo this libsllsBi
writing, and shall then state the paiU of iL
The Defendant's Plea consuls of two psrtL
1. The Defendant's being with othcnsTi
grand inquest < ad seasionem Cestr* ;' and that
presenting < ad eaodem aessionem' in tbeEsf-
Jish words in the Dedaratioomentisiied, whin
is their justification.
S. Theh- traversepoyned to tliis jnstiieste
This Plea is insufficient and dcmdvein Ifcn
part of it, which is the Defendant'sjnstificate,
and also in its other part which b histnvcne.
The justification is insufficient and deftdite
in these two things.
1. It doth not appear by the plea that^
Sessio Cestr'* mentioned in the plea was •
court that had jurisdiction of the matters ssr-
mised to be presented by thb inquest
2. The matters mentioned to be preseotodia
the manner set forth in this plea are not a ne*
sentment, and ought not to be recsivcd 9
taken in law for the presentment of a gnai
inquest upon this record.
3. The traverse is defective because it dodi
not take into it all the parts of the dedantiaa
which are not comprised in the justificatioB.
So the plea leaves part of the dechtfation oi-
justified, and untraversed, and conseqoaatly
unanswered.
It doth not appear by this plea that ^
Sessio Cestr', was a courtf for all sessions an
* " 1. If this Sessio Cestr* docsnotappcv
to this Court upon this record to be a cosit
having jurisdiction of these matters idledged ti
be presented there, then the justification 6ii
the defendant : 2. Though a court, yet if tbc
writing called a presentment bo not n legal pv^
sentment, the justification fails ddcndasl."
MS.
t << Sessio pacis. Session of Oyer and Tb^
miner, Session of Gaol Ddivery, Oisaina if
Parliament, Sessio Pootenua. The great So-
STATE TRIALS, 56 Charles II* i684.-/or Scandalum Magnatum, [ 1390
Virts : it si^rniBes a sitting or meeting.
lurt was this wheiher aCourt of Sessions,
aod TertniDer, Gaol Detivcry, General
t of the Pe&ce, or a Court of Exchequer,
ancient monllily court held betbre the
of Chester, or the court created by
lute S2 H. 8| cap. 43, and altered in
meets by the stututc 33 H. B, ca|>. 13,
> Court established by stat. S7 B. 8,
of all which courts lord Coke in hiit
takes notice, aud they are all aessio&it in
M parlance.
court hath not its stile In this plea,
Cestr' no stile, any one of these courts
holdeo before sir Geo. JeiTreys, kut.
L justice of Ch«iter, and John Wwren,
rjuBlice of Chestdr ; these are their
toe stile of Uie court ; they bare
atever court they sit in.
are so named with the9«e additions in
■^■BOiissions of Oyer and Terminer and
^^KcTt and in the commission of the
^^^Hliahed in this county by the staL
BBIirte in Westminster-hall are known
stiles as Kin gf's- bench, ChacicerVt
n Pleas and Exchequer; atid if the stile
':ea it must be taken to be *■ coram non
justification were in' Cur^ domini re^
ipud West* coram Georpfio Jeffreys' and
"Suis* this would be naught, for there is no
irt ; and tbU court in pleading could not
Lbis for the KingVbeoch.
if the Defendant will have adFaota^e of
Itier to »xcuje himself, that he jdio it in
ofjuBticft in a court of justice, he must
Lbe court so as it may a^ipear to this
such court liad ju'risdiclion of such
are supposed to be preficated in this
Mi'on 1, As to the objection made by
©It, That this court ought to take iK)iic«
l^urts in the County Palatine of Chester
• Ibeir coarse of proceeding, ivithout spe-
feadiDg of them or shewin|; them to the
Migfh this be admitted that the Courts of
iunster are obliged to take notice of the
of proceed ing In the courts in Conntyes
M is when the court is sbewn in pleading,
bis court h not obliged to guess at the
tbg^ofa plea touching the court witbout
ig and stilingf the court.
in Wales are enacted by thcRtat. 34 H.
k. 26, which sessions snail be called the
^ Great Sessions in Wales. No act ^iTes
Sppo«ed Court the name of Sessions. Hpel-
» Glossaries, 8essio Hyemalis, ^ssio cjua-
itmatis mentioned there not taken for a
^ Vide * Curia* in his book. 2. if supiKieed
, it doth not appear upon this record
Court of Sessions this was. 3. all cx»urts
The course of the Courts in West minster -
ball is the lo^v of the land, and every court in
WestmiDHter-hall is obliged to take notice of
the course of the other courts there, without
shewing their course in pleading.* If a record
of the Court of Kiiisf's Bench comes before
this court, you will take notice of the forms of
that court; but the couHs in Westminster-
hall are not obliged to take notice of the stiles
of the respective courts, if they be mistaken in
pleading.
If the court be rightly stiled in pleading", the
other courts are obliged to take notice of tha
course of that court
It is manifeet it dotb not appear in the plea
that this nession had jurisdictniu of the matters
supposed to be presented, it doth not appear in
the plea what court this was.
Neither is there enough set forth in this
Elea, for this court to intend that this session
ad jurisdiction of these matters.
A record in any court in Westminster is
binding to other courts, so is a record in the
Cin<|ue Ports ; but a record in Chester, Durham
or Lancaster is otherwise, for they are another
manner of franchise.
An outlawry in Durham or Chester shall be
disallowed and are not pleadable in courts here,-]*
because they are but privaAcjunsdictions which
extend not beyond their own precincts.
It must be admitted that Cuester is a County
Palatine, and that regal jurisdiction is incident
to every County Palatinef ; and consequeotlj
hath courts whu^h have jurisdiction in pleaa of
the crown and ciril pleas.
And so iar the Courts of Westminster-hall
take notice ihere are courts of justice tn the
County of Chester, as inddent to the County
[qu. Palatine] M' Chester*
But the Courts of U'estminster do not lak«
notice of all courts in a County Palatine, «r
allow of all their course in their courts or
their presidents.
A Writ of Error to reverse an outlawry in
the county of Lancaster, Error assigned ♦ quod
*nd comitat* Lancastr^ tent' ibid,' &c. Whereaa
it should have been ' tent* apud Lancastr' in
*' Comitat' IdUkcastr^ and the ibidem would not
serve, though a hundred pre«Mienits produced
out of that court to warrant it.
If this session mentioned in the plea be a
session held by any commiision either of t>yer
and Terminer, gaol ddivery, or peace, the au*
thority and commission of the cHturton&fhttobe
set forth.
And this as well in the county of Chester at
in any fJtlier court.
Because these courts by these oommisaioina
are not courts incident to the county Palatine,
neither do the courts sit there upon any sucb
cumimssions, issued out of tbe £.\cliec^ut:r in
* Lane*s Case, 2 Coke*a Rep. fol t^.
+ 12 Edw. 4, fol. 16.
X Davys^s Hep. fo). 6fi. Tbe Cas« oftht
County Palatine of Wexibrd.
1391] STATE TRIALS. SSCharles II. \Qt%.'^E.<!f Matchsfi^it.
the couuty Palatttief but by commi^sioii from
Ihe Orefil Seal of Eoglaod, by the 8tat. 37 H.
8. C.5.
And the court of Assisses so j^euerally caUetl*
holden before the justice of CheMer^ is a court
constituted by act of parlisDieiit of 32 H. B.
leap. 43 ; aud not ati ancient county Palatine
«ourt
Since there are these various courts in the
county of Chester, tJieaulliority and jun&diction
of the session meutioned in the plea, ou^ltt to be
•etforth by the defendant^ who aolh justify him-
I ftdf by proceed'mg as juror in that coort ; other-
wise this court cannot take notice of thatcoqrt
^ This Sessio Cestr' may be a se^i«n of oyer ami
terminer, peace, or gaol delivery ; wbtclif oug^ht
$0 be shewn.
Tlie Plaintiff in bis declaration doth alled^e
that the defendant with others by conspiracy
did falsely and roalicioasiy devise, fratne, write
and pubhsh, a false scaudaLoua libel against
^inrif audi»et forth the tenor of it to be,
** We llie Grand Jury sworn to inquire for the
lody of the county of Chester, at the assizes
lidd in the Common Hall of Pleas in the Cas-
tle of Chester noon Monday the 17th Sept. 35
Car. 2."
The defendant in his nlea confesseth that he
clid ptesentio ^ his Anghcunis verlibt,' in the de-
claration mentioned^ so in tht: libel, he ^ves this
court onestile^in his plea another nume: he
I stiJea die court the assizes in bis Jihel, but the
I tCMton in his plea.
Therefore to excuse this matter he oux^^ht to
■hew the jurisdietjon of this session, and the
authority of it, whereby this court may judge
' ©fit.
That this ou^bt to have been no shewn, I
•hull endearour to make out by aulbority, pre-
cedents and reaion.
Lord Cokeys I Inst. fo. 303. Where a mat-
ter of record is the foundation or ground of the
iuit of the plaintiff, or of the substance of the
plea, there it ought to be certainly and truly
\ altedged ; otherwise it Ls^ where it is but con-
¥eyanci?.
The reason I take to be that the court in which
' Ihe actiun depends, may have the matter of re-
cord so itiily and clearly beJbrc them that this
court may J u(%e of the matter of record, whe-
ther it be suHident in jaw to maintain the ac-
tion or delend the plea, and not to trust t** a
lunt of a record, for the court is to jud;^ by ihe
record lieforc them, not by implicit faith of
U'hat was before anDtlior court.
Therefore it ought to anj>uar to the court
[inhere the record is brou«^ht, that the court
irhere the record was made had jurisdiclion of
be cause, and that the record ts siifliclent in
litseif to justity the matter alledged m the
hleadtng^.
Withall it is necessary it should he so ; that
the suitor may by plea or renlicaLiou t>f * nut
tiel record' bring thaii record Ijefure the court,
or at least wise have the truth of that record
•Tied,
IS this cout^ of pl^adin^ bt allowed, these'
advantages arp lost, wnd t]ie t otj
clnded by tlj' ' ut nf s c
cord not bh plcudol i
proved, as il uu^nt to be i»]^
of law.
Bushell^s Case, VaQ|rhao*i ]
The reasons in the arguitoeat tn
justice Vaog-han afRi m* J \v\ ifj^
-M
the court ia that
hut do very muc
Case vol. 6, p. 9v9, ot ihre C
A Habeas Coqjus directcvl
London to hare the body ""
by them detained in the j
the cause of his caption
court of common plea*.
Iletumed, that .
oyer and terminer
before sir Samuel Sitniiig^
don and divers other, hi
* by virtue of bis Maj
' under the Great l^al of
* to enquire hear and di
* therein specified,* arooni
of onlawfuU congregatingf
the said Bush eh was coi
Newgate, under the cus
London, by vertue of an
said court as folio weth :
* t>rdinat- per cur* quod
natur separatim super, Edwi
eleven more, for tbat tbey tkONij
bad acquitted certeyn pcrsuns of t
contempts and uuTawlVilt
contra h^em bujus regni Ai
et manifestam evidentiaitt
cur* in materia legis, hie in
datam et declaratano de pren
Committed till they pay the
or be delivered by due course
The party was delivered U]
Corpus, by the court of C<
Car. 2
Becattse the court Itatli u(
this return, whether the evid*
full and manifest or doubtful,
Because it was not retuitit
was given :
There was before the oui
Pleas, only the judgmeut of
and Terminer upon the ei idci
and not the evidence given iWi
And the judgment of the c<
Pleas, \% to be g^iveu and
own inferences and uudci
upon others,
J I was objected there tbal
* Auod tlon inquiratur de di
That ibe court of
to be looLetl upon as an ittf*
all the judges commtssioDerB :
That the eniirl having hi
ought to l>e credited that die ev
Vet the party discharged
sons.
Here is leHinour pb
It is not the judgoieni of
IS93J STATE TRIALS, 36 Charles II. l6U.-^for Scsndalum Magnatum. [ISM
discretion of the court that is here made sacred,
but the judgment and discretion of a jury.
And Uiat not in materiA /acti, but in materia
Ugu^ as I shall shew in its proper |)lace.
Ought not the jurisdiction of tins court [to]
appear clearly and manifestly to this court, and
lot the court and the plaintiff [be] bound by
this general allegation of ii</ Scssionem Cesir\
witboat shewing what court it is, or the power
€r jurisdiction of it, or the nature of it?
And this is a limited jurisdiction bounded
witbin itself in its enquiry.
These precedents justityc and require the
court abould be set forth, in such pleadings as
liikis.
In au action of trespass,* the defendant sir
Christopher Heydon, pleads specially, and
Bakes a title to the lands in the Declaration,
under an attainder of Dudley, for High Trea-
■pn, upon an indictment taken before com-
DBissiouers of Oyer and Terminer ; whereby,
and by act of parliament of attainder grounded
Ml the conviction, those lands were forfeited,
ind granted from the ci-dwn to the defendant.
In tliat case the dcfeu^lant in his plea, sets
Tortb Uie commission of Oyer and Terminer ;
die names of the commissioners and their
power to enquire * per sacramenta' of ' prob' et
' legal' homin' &c. '; he sets foith of what crimes
the^r were to enquire.
^iote the whole proceeding in that case upon
9iat Record was void as n proceeding, * coram
^ non Jttdice ;' which would not have appeared,
bad not the commission, and proceedings upon
i, been set forth in the plea.
Therefore judgment was given for the plain-
tiffin that action.
In an action upon tho case,*!- the plaintiff
declares, that the defendant at the general Gaol
Delivery tor the county of ^Varwid£, held at
Warwick G August, 8*Jac. before sir Peter
Warburton, one of the justices of the common
bench, and sir Thomas Forstcr anoUier of the
iufltkes of the common bench, justices of
the peace * uccnon ad diversas felon' audiend,'
' eCterroinand'assignat' falsoctmalitioite absque
* nU& verft et legitime caus& procuravit,' &c. the
plaintiff, and imprisoned and detained in pri-
lon, qu<m$que he was ' dcbito modo acquietal' :
lodgaient upon a Writ of Inquiry for the
plaintiff.
Judgment arrested afler writ of inquiry exe-
cnted,Tor that the Declaration was notgood, he-
cause it is grounded upon a malicious prosecu-
tion of an indictment at a Gaol Delivery, and
it is not alledged in the Declaration, tliat
Ihey were justices < ad Gaolam dcliberand' as-
•wnat*
Although shewn they were justices of peace
and of Over and Terminer, and were in truth
instices or assize and Gaol Deliveiy. Yet be-
cause this did not apfiear upon Record, the
■ r *
* The earl of Leicester v. sir Christopher
Heydon, Plowd. Comm. p. 384.
t See the Case of Lovet r. Fawkener, Cro.
Jac 357, 1 Ro. Rep. 109, % Bulst 970,
VOL, X«
court would not help the plaintiff by intend-
ment.*
Many presidents of actions f for procuring
persons to be indicted, and indicting person^
falsely, and maliciously without cause, by con-
spiracy ; several pleas by defendant that they
were jurors and prosecuted the jflaintiff, or in-
dicted him without any conspiracy upon ttMT
oath as jurors :
In all these presidents ;
The courts are set forth, their power to en-
quire, and of what crimes, with their other dr-
cumstaaces.
No president for this plea in all the booki that
I can meet with.
If this Sessio Cestr'ahalT be taken b^ this court
to be such a court upon this record, as hatli ju-
risdiction of the matters surmised in this libel,
and that this inquest is duly impanuelled, sworn,
and returned, to enquire of these matters ;
I conceive and shall endeavor to satisfie your
lordshipijbat this writing set forth in the plain-
tiffs Declaration to bealibel, and mentioned in
the defendant's plea to be their presentavemnt ;
that it is no presentment, and ought not to be so
called, or received in a court of law for a pre-
sentment, or to be so allowed in pleading upon
record.
And consequently though this Sessio Cestr'
was and shall be taken a court sufficient for this
purpose, and this inquest a sufficient inquest to
inquire, and present according to the oath and
duty of^a gram! jurj':
Yet this writing being in itself libellous, and
no presentment, it bath lost the sanction of a
presentment, and then cannot excuse the
iramcrs and publishers of it, though of the
grand jury.
That it'is not a pi*csentmcnt,
I offer these reascns a;^ainst it.
This hath neither the form nor substance of
a presentment ; it is not positive in any part, to
any thing, person, place, or other circumstance.
I desire leave to stute it.
It runs, ** \vc hold ourselves bound in this dis-
tempered juncture of afihirs to present that we
have 8tron^''npprehonsionauf danger from a dis-
satisfied partv, \^\v^ not only shewed their de-
fection openly by an address made to Henry
Uooth and sir Robert Cotton at the lastelection
of Knights oi'xV.^ shirr, tending to alter thesuc-
cessiou of ihe crown, Sec."
But also by their several meetings and ca-
balls since, wliich administer greater suspicion
from their arms.
An>l for that they assembled with schisma-
ticks, and disaffected, in the public reception of
James duke ofiMonmuuih.
* ** Here are stronger circumstances to in-
duce the court to take this proceeding to be
before persons, who really had a conmiission
of Gaol Delivery to warrant their proceeding,
than there are in our case, to take this iSatm
Ceji/r' to be a court authoriied for this purpose.'^
MS.
t RasUirs fiotries, pp. 1S9, 124.
4U
1395J STATE TRIALS, 36 Charles IL l6BA.'-E.ofMacelg$fieU9. S»«rhj,[13B8
For remedy %\ hereof with relation to the . The variety of matten and thinpoflM ii
public peace, and aUo to wash our hands from ihxB praenUverunt : The offences aiMJ
all misprision, &c.
We conceive it expefllent that the principal
persons who promoted the snyd seditious ad-
dress, and those that were notorious in abetting
in the riotous reception of the said duke of
Monmouth, &c. should be obliged to give se-
curity of the ])eace, and particularly Charies
earl of Macclesfield, <^c.
Here is no i>ositive presentment, nay, here
is no presentment, ** Only we hold ourselves
bound to present."
And they do not hold themselves bound to
present because they know it, or have it proved
to them ; or hold themselves bound to present
that there is any danq^er from a dissatisfied
party in their county ; but that they have strong
apprehensions of danger from a dissatisfied
Tliey do not present what this danger, is or
wherem this danger fies, even in their ^iprehen-
•ion ; that they apprehc nd the peace of the
country is in danger, that they apprehend any
danger of rebellion or invasion.
In their motives assigned for their appre-
hension of danger they do not present positive-
ly any particular fact ; they say <M>y an Address
made to Henry Bootli and sir Robert Cotton at
the last election of knights of the shire to alter
the succession."
They do not say there was any such address
made.
" By their several meetings and cabals.^'
They do not say they did meet and caball.
*' That tliey did unairnnoiisly meet with
Sclusrinticks and liisHUVrted in the public re-
ception of Janips iluki' of Moiiinoiith."
i{nt <Io not say 1h*- whs publicly received.
And iijl their instances intimated in their
wriiin;; are hut cvidcnre, leading and inducing
a Jury tu bt-lii've and present a crime. And these
crinics — to use their plinise, — this is but a cli-
max of cvidonrr, and all this at most i^ but a
prcsfiitmrnt of eiiiltncc of a crime, which is
no presmtment of a i-rinic. In all this
they do not nann- th:- '-arl of M<icclestield, nor
any oiIht perFon, to bv a dangerous perctoii or
p( I i»ous within tl.cir apprehensions, or to be a
confedtraie, or actor in these addresses, meet-
inur*-, ov asscinblvrs.
They acousr, by their ap)freheDsion, a dissa-
tisfied ' party in their county only, without
naininpf any particular person.
.As they iiienlion no particular person or
nime, so'they present no particular or other
pldce or places, \^iicie this address, these meet-
ings or assemblies were ; and if all the other cir-
cumslanees had been observed, if they had not
named some place or pUces iu their couuty,
where these misdonit-unors were acted or
pt^ipetnited , it would be a void and illegal pre-
sentment.
They lieiug a county Palatine and limited
jurisdiction, umy ought to shew these crimes
to ariiM* within their own cuuiity, or else it is
not wiihin tlieir inquiry, and tnerefore void.
I aymed at, if they were exprett so as ther etghl
to be, and as circmnaCantialij as the law n-
quires;
They are crimes and ofienoes of diifierait
nature, and ought not to be charged in iij
one presentment or indictment, but in seHnl
presentments and indictments, in respect tfcn
they are divers offences, of dillerent natnre, ui
ought by law especially in the ease of a pev,
[to] receive different ways of trial, and ia cmr
subject's case receive different judgmeoli sm
diflferent punishments, and ezecutioas; trcsM^
riots, unlawful assemblies, breaches of the psNa
And here are many peisoua drawn intolki
same presentment, of dillerent crimci^ sf ef-
ferent nature ; and all are not accussdef rilthi
crimes.
As thu writing hath Bother the w&Ms w
form of a presentment.
So it hath another form or purpose thni
presentment. The purpose and desin ef i
presentment is to accnse men of crimes by hv ;
whereby they may be brought to tryal for uA
crimes, and be convicted or acquitted by kgil
tryal.
And process of law issae, out of cuuissm
such presentment, to bring in the acemMto
appear and plead, and to bind the person tothi
peace or behaviour, or to bail, mainprise, orin-
prisoii the party, as the offence presenled l^
quires it.
But this jiresentment, and this Grand Jot.
upon this signification of their appreheDBOD of
danger, in this unor.rtain manner, from adiffi-
tisHcd party, without any accasation of the eirl
of Macclesfield of any certeyn crime, do s*fl
their judgment against the carl of MatcWs*
field an<l^)ther8, that he and they ought to be
oblic^ed to give security of the prarc: ibey *•
not pray the court they mny be obliged togifs
srrurit^ fup the {leace; but i;ivejudgmeiit«p<in
them wiilioMt any chargr a<;ainst them, there
is no mrnhon of thom, till i!\*>y come to their
jnds-ment : such a motion had been proper lAer
A jiresrntnient. And why do they do this? The?
say they conceive it hi;^!! time to manifest thnr
senaration from traitorous persons and treum-
able principles, their favourers and abettors, to-
gether with their detestation of the climainm'
tioned in their presenttnent.
TheBillofKxrlusion ;*
Traitorous associations ;
Ignoramus Juryes ;
Seducing perambulations *
Matters not within their jurisdiction orea*
quiry if within their kno\% ledge.
For remedy whereof with relation to the
public peace, and alsi> to wash our bands frnn
all misprision by concealing procccdins^ tbii
may encourage greater evils, in other part!
of his majesty's dominions :
We concei\e it expedient, that the pr'tneipal
pei'aons who promoted the aforesaid st^litKKa
See 4 Cobb. Pari. Hbt.
P*";
] STATE TRIALS, 36 Charles U. l6^l.—/or Scandaium Magnatum. [1398
li4Hre«9, ind tliv Mo^ireri of tlt^duke of Mon-
mtiulhf ftnd il ^ ^' ' i riil«rsofcoorenticle£» aQil
bftrWurem 5 r.anoers of iioa -conform isl
ifttctont* biiuujii IPC obliged to give stfcuritv
nd p«rtjcu1arly Cli&rtcs Earl of Maccles-
, 'Set;*
fm\s sUted tbe parts and circumsttDces
' I pi'esetilJ^veirupi^ w hicb is a very reflec-
kper, aiid lialb loore of tbe tigure and face
\the\\ ihan Uie ibriae or countPDince tff &
ent merit ;
Full of axDbigiiitl^« without any manntr
vt oertaiDty ; b^comifig or nece&sary to con*
11 li:gal prcfteiUineiit I'rom a gratid
fioti
migh it cufiicietitly proves ilielf to Lc no
prcteiitmtut, yei I shall add some authorities
lo uutify what I Lave said ;
TImi lUe law requires matter legally pre-
•entiible, and legfal lorros iu presentments atid
indlctmeutib, and that without sucU matter aod
l|>*rin tlirv ait' v»>!i1 atui [U'.llitiiris in lav., and jSO
'■ ^. ^ ■ . ^ rij an
tilt* 1 shall ^hew bfreafit:r that the
nty is refiuired inpree^ntments, && to
^B%tier aod hrm of preseatmetit^.
". pratentmetit is t ?erdict of the grand in-
t^ or of some other inquest ; and oug^ht
dbre to present matter certainly,
t verdict ntjding naatter uncerlamlyor am-
uoufrly is iDSumcieat, and do judgment can
~~ I kIpQQ it,|j
*vere diictum cjimsi Jictun fer'ita*
meauinfip of the word indict or indict-
it signitieth an aceu^ialion ftiund by an
of 13 or more upoa their oaib^ It is the
'0 declaration, f
o ttbi'u the law requires tbe like certainty
^ to matter and form in a preseatinent^ as in an
K*^ ^^'^r in replevioy upon a distress
Hkcn by a lord for an amerciament set upon a
^weatment in hit leet i* *
PThe question is stated there, whethcrt lie di^-
tr»« in well takan tor the amerciament upon
ihift presentment :
Thv ta5t; ; a treeh older ere cteil a new dove-
coat upon hts freehoM, where there was not any
before^ and stored it with pigeons ; this was pre-
ieot^ al thit hx.'! fur a uui^ance, and a jiain as-
Mt to amove it by such a time, ana for not
ring it ht; was anierced, and for the amcr-
aent a dislrets taken by the lord«
|t was resolved in this case^ that the pre-
^tment was not good, hccause it is not
^ in the preitentraeot^ that this erecting of a
** TVy <Io not coofioe this to their owd
» to th*f origin^d. J Co* Utt. 303.
a. Lilt. 227. a. $ Co. Xitt* 220. a.
Ip, LitL 120. b.
att w^ Steam, Cro. Jm. Sas* GodU.
1 Ro. tte|». 139* 800'
doveeoat, and storing it with pigeons was, * ad
' nocuroentum ligcrr 1 '1- : ;• ; h
oue^ht to be i n everv ] ;
alt hotigh the party i.. j i.c/.u- ..^u .»t.i.,..i tc
to be * ud comitne nocumentimi/ yet that was
not sullicitintT for it ought to be in the ptiesent-
mf*nt, which i*3 the chai'pe* ; whei'efore )C was
adjudged ac'^iti^t the plauitittf that his distress
upim this illegal presentment was not war-
rautable*
This case sufficiently proves the matter and
form of presentmeots 'are nece&sary and that
such presentments as nre defective in matter or
form are void in law, and so taken and ad-
judced in legal proceedings.
This also pro vi^s that matter and form is re-
quired in presentments as well as indictmenta.
An indictnieiit ought to be certain without
andiiguity and in nut to Ue taken by int«^d-
mentf
An mdtctment that * Afelonice 9% iti:iIii;:i ^nft
* priecogiuta occidtt John Stiles* ^
word Murdravit not goo<l ; neillier ^^ ; i »
presentment be good ; and the ctcrk of the crown
cannot supply that word in nn indictment.
The like indictment against a person , tliat he
' rapuit et oarnahttir cognovit^ such a woman,
wiinoQtjHofiiV^ not stitneient. Buckler was
indicted and * co quod ip^e tali <tte et anno
* apad in quendam Johannem insultum fecit
* rpsum cum quodum cukeiio fdouice percussit
* ocddjt et murdravit.'
By the opinion of the court, tlie iadictmeni
was naughtf without shewing a places where
the murder was tommitted, as well as the
plifcce of the assault, for they ar« crimes of se-
veral naturci and the assault might be in one
county, and the murder in another by the
death of the person* II
If a man be indicted or appealed ^ treaaoii
or felony, or of trespass ia a foreign country,
and be acquitted of it, he shall have a writ of
conspiracy against the procurers of h^if in-
diotmeot. §
If a man be indicted of felony or treason, in
a place, where in truth there is no such place in
the county where the person is indicted, tha
party shall have a writ of conspit^cy againi»t
the abettors, procurei*s, or conspirators for
such indictment. %
1 conceive tlie indiciors themselves would
* " This appeared to the court in pleading tO|
lie a void presentment. So doUi this present-
ment in our record ; and the court ought IQ
judge upon this writing set forth » if it he a sut«i
licient presentment ; lor they are now as mu<;kj
lojud^e ofit,as if the presentment were reuiof •»|
od before them." M». I
t Fitzwiltiam's Case. Cro. Jac, p. 19. S. €j
Cro. Eliz. gi5 Yelv.Sf.
II Buckler*s€ase, Dyer 10, See also Hawi
PI. Cr. B. 1, Chap. «4, Hev.. 42.
Baud's Case [Cro. Jac, p. -il.] recites andai»J
lows that ctise to he law.
I FitA. Nat. Bre. p. 115. J.
f Fiise. Nat. fire.p. li^.K.
1399] STATETRIALS, 36 Charles II. \6SA.^E.of MaccUnJUUv.Starhs.lMBi
Coke's 4th Inst 911, Of the county pihfiM
of Chester. It appears by these they imv
claimed jurisdiction uf other matter than tadk
as were arising within the oountv-
not be excused in such cases, by beinnr indicters
of offences out of tbtir inquiry* and that falsely
mnd maliciously.
Because they are sworn to enquire for our
sovereign lord *^ the king; for the body of their
county ; and their oath excuses them therein
and no further.
Ill such indictments found of offences in
another county, or in places which are not in
their county, are void and * coram non judice ;'
and if snch jurors should be questioned in ac-
tions upon the case, for making such present-
tnents or finding such indictment falsely and
maliciously, I suppose it would be no pica for
them to say they did it as an inquest upon their
oath and conscu nee according to evidence iu
the eounty of Chester.
The inquiry s of all grand juries are circum-
scribed to the county for which the grand jury
serve.
The in<joirvof this grand ^ury is not only
drcumscribed to the county of Chester, but the
jurisdiction for which they serve is a limited ju-
risdiction, and circumscribed to that county
onlv, being a county palatine.
And whatever is done by the court or inquest
either judicially or extrajudicially in any mat-
ter or cause criminal or civil, arising out of this
eounty, or which in fact doth not arise whhin
this county, is void and < coram non judice ;*
and the court as well as the jury is answerable
for it.
* Reasons. — '* Their charge and oath is to
ienquire only of offences and offenders within
their county. The jurisdiction of the court
goes no further, and if they go further, it is
void, ci coram non judice.
** Jf they had named, that Charles earl of
Macclesfield was guilty df trLfisonable Asso-
ciutionf at VVcslmiuster ; had n(»t this been a
libell?
** If they had presented that Charles earl of
MacclesficiM was one of the Ignoramus Jury
for the coiinl}- of !\ii<I(llose.Y, (*r thai he was
for some unwarrantahle Hi'.! in the puiliamcht,
at ^^ estmiiistrr or OaIopI ; Iind not this been a
libel, had it not been a void presentment, would
this plea defend thcni ?" MS.
f See tills Association in vol. R, p. 781,
lord Shafti.>biJry\ C'af;^\ Uoger North (Kx-
amen, 11?) sayi,, ** Tht:re was a paper foiunl
under his lordshi))'s lock and key iu his closet,
being a draught of a treasonable Association.
This' the jurymen, who aeteil as counsel for
the defendant, wouid have slnifdi d off, on pre-
tence th.'\t miMition had l»ecn made in parlia-
ment of a Bill of Association to he brought iu.
Whether this was intended to l)c that or not,
was not material, so long as the import of it
iras treasonable : for one of the ends expn>sscd,
was to destroy the mercenary forces in and
about Loudon, which were manifestly the
king's ordinary Guards; and then that, sitting
the parliament^ the government was to be iu
It appears eveahy this presenuncot that lbs
inquest have charged the plaintitiT with crioM
out of their inquiry, out of their oath, out of
the jurisdiction of this court ; they accuie hia
to be one of the Iguoraoius jury, an asmdalor. I
The traverse in the defendant's plea is iniai-
cient and defective ; it doth not take into ii il
the parts of the dedaratioD, which are not j»
titied by the plea.
Much of the material parts of the declaratioB,
which are the ingredienu of this action, iikft
unavoided by the justification in the deftnd-
ants plea, and untra versed by his trmTCiscsii
consequently unanswered in tliis case.
The justification in the plea goes no fiutbAr
than to justify what the defaidaot did u •
grand juror at the session of Chester upon hii
oath and conscience according to his evidenef.
All that is charged in this declartUion to k
done fiailsly and maliciously by the defendut
out of the county of Chester cannot bejutilkd
by his plea.
So that if the traverse do not reach all due is
alledged to be oat of the county , the tiavcne ii
short and defective.
Though the traverse be so full as to ooa||te-
hend the charge of all the matters simiM
by the declaration out of the county of CbeHcr;
the mtyority of the members : but the tbiv
itself did not import as if it were to be enacM
by psrliament. llie author [Kenneu] brings
forth the authority of one of his choice eounstl
learned in the laws, sir John Hauless, wbo ii
of opinion, that this paper was not prmed a
fact of the earl's, but only in his custody ; trae,
and, for that reason, it was not entered in tiie
indictment as an overt act, and, if that bid
been done and proved, it had been a suificient
couvictioii; but it was used ouly as acirouro-
stance that made the direct evidence mor«
credible; and, in these cases, some seditious
practices at large, though not direct treaaiOD,
are received in proof lor the like intent. There
was another found, uhich made morenoiicio
town than this, but, by reason the tide was
enigmatic, it could not regularly be oflered as
e\ ideuce It uas a list of names of men, on-
dor the titles of * worthy men,* and * men
* uorlhy,' iu two columuF. The first, by in-
terpretation, was of preferment, and
the other to be hange<I. But, in the
observation of the public, that white and black
list was a notable discovery ; for it shewed by
what sanguinary, as well as partial, measures,
t!ie partv had proceeded, if their designs bad
taken effect, and ouadrates exactly with ihi
discoveries of tbe Ilye Conspiracy, as the ar-
counts of it shew." See also in the '* Sute
" Tracts from the year 1660 to 1689 ;" nob
hshed in 1692 (p. 73) " The Writing of A<-
** sociation entered into by the ProCestantt la
" the Reign of Uueen EUsaheCh.'*
9
p-v;
\l} STKTKTKlXt^, S6CHkTtL^s\L l6B4^--for Scanialum Magnatum. [1402
ill an lo the common hall of pleas there ; ertry
other place ; in the county o( Chester it lefl
out of bis justificatiuD, for be hath made it Tocal,
ajiii his traverse goes only to all place* in
the eouDtv of Berks aod elsewhere out ofiht
county ot Chester, nhich still Ieav«s the rest of
the county of Chester, which is out of the com-
tiiou hall of pleas, untiaversed.
And it is not to be inteniletl that the commoQ
ball of pleas for the county of Chesteir con*
tains in itself all ih« county of Chester.
Because 1 wouUl emleavor to prevent, at
lea^t meet, ivhat ntay be offered to supply this
delect ill the traverse.
That is, tliough there is not an express tni«
verse us tu all other places in the county of i
Chester, which are out of theCommoD U ell of J
plei there ;
Yet the words * aliter vel alio naodo' will «up-
this detect lu lire traverse,
he wortlSf *■ aliter vel alio modo* cannot do
this ; for the ^ aliter vel aho modo* go to the
fact charged in the Declaralion, and to thtt ^
manner of doing it , not to the place where the
fact was done.
For, it may be, the Defendant might be guilt j^
of this fact m the Common Hall of Pleas at^i
Chester, at the sessions there, after the jury wai
discharged, *■ aliter el alio modo,* than he dotli
justify in his plea, or before he was discharged,
otiierwise than lie hath justified, by posting or I
pnblishing this libellous wrjtijig, m di^scourse j
with others who uere not of the jury, and that
nut u|>«n his oath or upon evidence ; therefore
it was necessary to make this * aliter %el alio
* modo/ part ol the traverse for this purjiose,
and without it this part of the traverse had
been defective.
it bath been admitted by Mr. Holt, and evea '\
by the books cite 1 by him it is very plain, thai
a juror whilst upon his oath, doiuj>' his duty i
as a juror according to his evidence, is uot ]
impcacbaye for such doings, by any writ ^
of conspiracy ; but if after he is discharged <»f 1
this duty, be *hall publish and aver bis indict*
men! or presentment is true, or shall falselj^^
or maliciouifly pubbsli the same to the preju- i
dicce of any pt^rsou, he i^i liable to a writ ofi
cnnspii-acy'or case.* Fitz.Nal. Brev, ll5t
21 Kd. 3. 17 J2 Co, Rep. 23 ; and not, cited
by him, 'iO Hen. t)« 5, and 3S, u mi rant this.
To shew that the ^ vel aliicr vel alio roodo*
will not au.swcr (he pisce, but the manner of j
the doint^ ol the fact. Ascue v. 8anderson|
Mich. 37, tut Ehz. Croke Eliz, 433,
Ti'over of UOO hbeep ; 1 D«ceiubcr 36 EliE,
Heft^ndant pleads he w as Sheriff of the county of
Lincohi, and that J<>hn HtiU^iii recovered ngainHl
the Flainiitf' 100/. and a * fieri lueiua' to levy I
that debt leium^ble * crastino animaruin!
36 Eli^. that heby viitue thereof, tO Oct. 3$J
Eliz. t<K>k the aaiil 300 sheep» tud told upo^J
* ** A juror unduly labouring a juror pu*
nishnble by action '* Ayrea v. S^dgwidftl
Fidm. 143 B, C. Cr(K Jac. QOl* t Ho. Eep.
195. 19r. 1 DaDf, 78*
M if any thing charged in the declaration
: tile defet»tant was done bj him within
Iccmiity of Chester otberMtse than as a
I jury man, »nd upon his oath and con-
: according to his evidence;
Ught also to come within his traverse
Kti location can not defend him in that
let us consider the charge of the de-
ilian and the traverse as to this matter :
an uf the pea touching tire defendants
Bcatiofi is sufficiently discoursed and ob-
T already.
^1 the facts in the declaration be laid
miy ol Berks, yet they are in their
an&ttury, aud therefore they may be
to be done by the defendauttn any
: in the county of Berks, oi'in the county of
er, or eli»ett l*ere ; and us the plaintiif tiaih
^rneral liberty of proof by law upon ibis
jl^ration, the defendant by bts liaverse can-
|l« up the pltiiiui/ftu staue places, and ex-
I of his proof in other [»laces.
I char|>e of the dechii ation is general,
"endout's justice at ion i» but particular,
■ce and matter ; the place is only the
Tthe scssmni at Chei^ier, the luaiter h
what he did as a gfand juryman there
lij% oath and conscience, according to his
HOI**
It necessarily follows, that if be be
doing any thing that is charged in
^.ration in any other place than where
sion of Chester wasliehl, or in any other
^ihan an a grand juryman upon bis
ftuffb in the county of Che^^ter, auit this
llhm his traverse, then is his plea de*
1 judgment ought to be gi ren against
1 ibis record,
t us consider the traverse : ] take it to
efrctjve hereui,
^Ir .*' •^- i^ this,
n\ >od prtechctus Joliunnes8tar*
i Misite prernis^iis in narratioiie
i su|>eriuj» *()eciiicatis et ei imposiiis
Airto coinitutu Berks, vel alibi extra
Aura conntatum Ce^lr' mikdo et forma
rd ictus comes BUjierius vei-ftus eum
tnr »el aliter rel alio modo quiiin pr^edic-
Jobiinn«-9 Htarkey per plucUum suum
pel ;\vit et hoc etc'
||3 that he i« not guilty tn the
fotit ' uhereoutof the county
^bfsler, i Mjnot iravei'so that he is
fuilly tn .111 "II Mi i»l;ice« witinn the county
Jheifter, out of thr conumm liidi oi pleas at
in the county of Chester, whiTC he
ys plea the sciision wun held, and tu
ilaee he circumscrilms his jU&hficutioQ ;
Ihc^'dotb uot carry bis justilicatiou beyond
llsce.
Rt he may be guilty of the fact in the
ikm in some phu<' in the county of
{fer, uiit ol lheramiaon>hull of pleas in
trj which comrn nrahcr uithiu bisjuR
or hi« travcrM? ; for hi-j juntdinttioii
I oUitn* pUce in Cheater or tlsewbere
bat to the manner, ot'tlie oqaremaa.
Wherefore sayii the bocJL the plea dotb not
answer idl that which is comprised in the De-
daiatioB, and for that cause is ill in all.
As the ' Tel aliter vei aliy modo' in that case
would not answer the time of the fact, no more
will it iu our case answer the place where the
hci was done, which is a like circumstance in
pbading, hut it must be applied onlv to the man-
ner of the Defendants domg what ne did, as he
justifies, and no otherwise.
Having thus mentioned the Plaintiff 's De-
claration, and laid before the court the insuffi-
ciency of the Defendant's plea to defend hun-
•elf against this Declaration in this action ;
I shall proceed to answer some particular
objections and observations made by Mr. Holt,
in his argument of this case.
Obj. 1. His principal argument against the
action is by justifying wliat tiie Defendant did in
this case, was, as he hath set forth in bis plea, as
a Grand Juror upon bis oath^ according to his
evidence and testimony given the inquest of the
Plaintiff, and according to their conscienccs,f
and to preserve the peace in the county.
And for his autborilies to justify this he
cited 31 £d. d. f. 17. 8 H. 4. f. 6. Fitz. Nat.
Brer. 115. Stamford PI. Cor. 173, Coke IS.
Rep. 23. Bridgraan's Rep. 130. Agard v. Wild.
To these may be added 20 H. 6. f. 5, et 33.
9 H. 4. fol. ultimo. 27 Aston, plac. 12. Ineed
not take up tlie time of the court by answering
these several books particularly and seveially.
Stamford grounds his opinions upon 21 Ed.
2. f. 17. and Q H. 4. .6. and so is Fitz. Nat
Brev. upon the same reason with these books ;
•and the cases in 12 Coke, Rep. and in Bridg-
man's Rep. all take notice of* these books, and
as they are an authority for the defendant to
' justify his procecdinsr as afirrandiuryman to
bave endeaTonred to make out
ceived or allowed in our law. || 1
met with any such or like presi
Bir. Hoh bad done well to fai
to be a presentment, either oa
or the forme, or figure of it,
or authority ; and not to take
that it is so, till that be done, 1
will not, nay cannot receive or.
Obj. 9, Mr. Holt in defence
did seem to insinuate to the coi
this writing did want tlie form «
sentment, that it is the practic
and the officers of courts bj^ tb
offices to put presentments into
And by that intimation of ui
would shelter the weakness ani
presentment, to be supplied b^
officers of the court of sessions,
and places*
May the clerks translate an 1
mcnt into Latin ?
On my apprehension, if I d
Mr. Hoh, as the defendant mist
lord Macclesfield ; he did admi
ing, as it is penned and formed,
of a presentment, and hath i
form, which it doth not appeal
ceived, but remains still the aai
to the reproach of the earl i
without any alteration of it id f<
ing upon it in any legal ooime
I dcsure it majr be well oodbm
Holt hath said m this case, tm
moulding or new formiog of tl
by the i&xia of the oonrt of aai
That they hare power to trai
This may be cif a more di
quence to tne law and the sal
oresentaverunts as thaae are. i
>1 STATE TRIAtS, S6 CilARf.ES Ft* 1^84.— >r ScandaUm Ahgnatum. [MOG
hliii€iil4 «nd make them sufficient by new but do not say what this dansfcr h, or Ibat Ihtf ]
'"'^ peace of the country i% b daD^er.
For remedy of wbat they promised wilh re*
btion ta the public [jeace, we conceive it ex-
|ii?ilif»nt that the pkintiff* ftDd others aUall b% j
obliffed to give stfcurity of the peace, i
The question is not upon this Record what I
presentment a jury may make by hiw, to tc- 1
core the pubhc peace, or what infornmttoii i
they may give for that purpose, to a court «f^
juatiee ?
But the question is upon thii course, whe«
Uier this be a legal and warrantable proceeding j
by due course of law, to publish such a writ* i
in^ as this is, iu this uxauoer, against a peer of I
the realm. t
To borrow or derive Arguraents to justifytf]
this course, either from the power of grand ju« J
rieRj or from the necessity of conserviocr the|
pubhc peace of the kingdom, or the pence ( ^
the country, or from the power of justices i
the peace, or other minifters of justice^ to J
binde persons to the peace in some cases atJ
discretion, or from the fears and apprehco»iofl
of danger to the public : (even at this time ad*
mitliog all the conjunctions iti the writing ti
be trtie, the law \*tts not defective to hate ihi»^
suppressed and punished, without such nc*r
inv€*nt)on as this ts,)^
These are very specious topics for Argii*,
menta to ettenuftte the errors of a grand jo»*yji
and tnay be put in balance? with the circum«7
stances of false and malicious illegal aeeusa-*
lions, by conspiracy to libel a peer.-f
But to argue, that Arguments derived fVom
these considerations, ah all justify the irregwlaf
procf^Hngs of a grand hiqnest, by deliverioj^'
such a ivriting as this is, to a cnurf of justkt
and to gire it the sanction of a presentmenl^
only by calling it so, so very reflective u pott I
I he honor of a great peer, so' very perniciotii
to hinn, by bringing into que&tion his lifp, hil
estate, and his hberty : and to expose him I
the displeasure of hw prmce, and to raise an
stir a disesteem d' him, ancMAig" the nobles and
commons of the kiog^iom, as is layd in thm
Deckratiot) ;
i And that by this new way and mcnns \\\
' When there are ordinary ways to secure thgj
peace of the kingdom and country, if in dan
ger, or if apprehended to be in danger, withoq
such presentments as these are ; and there an
Ordinary rcinedtes to secure Iticn in their pH*
vate orpublic fe*f», without such proceeding
by grand jviries.
The i>cacc may be secured by the ordinar^
methods of justices by complaints and informii
i(^ as it is doth not charge or
.*t Macclesfield of treason or
Y^ or any olht^r specific crime or mifidc-
or, sluitf a clerk supply this deft^ct in this
ntment f If be shall, he ii$ thi* imlictor, not
and ttirv i nnd ihere is one of the principal
d law taken frooi juries, and
ijip: u L ^ uf clerks.
Juries 1 think may order a clerk in
oce to alter a presentment or indict -
matter or form * ; though it halh
i^eiimes serupled by judges. If the
i^ivered to them by the court, they can-
dter it without the leave of the cciurt.
t an alteration is made, certainly the
qtiest ought to allow and agree to such
|» or else it ought not to stand so altered
Hctment or presentments
•r'^ks of the courbi may insert
Or Aud the stile of the court in
jii(!i<!tment or presentment ;
lie substance or form, or
11 the presentment or in-
t, f do not know any law or warrantable
^ tor it*
I might be done by law,
f kind o4' presentment woald a clerk
film f \\ ould it be for treason, felony
neanorf
I either in his plea or in his Argu-
l yet informed us what [Mresent*
' of what crime,
it may puiixle all men what tn
PH, I am sure it doth me, I can ntake
rof it.
berefore he that drew the plea, did well
Vt * preset! tavcrtmt in predict' Anglican*
i narratione pred' su peri us racncionat',*
ymg of what sort it ts, or what it is
r treason, felony, or misdemeanor.
Holt in iiis Argument, in defence of the
ndant, layi great weight upon thut purt of
l|ileB, which says that the defendant among
I rvst ol the trnmd inquest did this, * Juxta
i as ac ad corsen andam pncem
in comitat' Cest.' Hq places
t »trri% [iiiM emphasis upon the xvniiog,
) grand jury api-rehend the j^ience of the
'to be m danger, and shall they not
ntthiv to the court?
• not (mn word in ih*- pfea, that the
ngcr, at the
1 , . ^y *^'*t tlicy
ad conservjind' pacera dcmini regis in co-
• mttat' Cestr* prcseoturtront in pnedict' AagU"
• cut* ferWs in narratione.'
iNiey do not say in their writing thait Ih*
* ' Ihe country or kingdom^ waa in
J they have strong apprchenstons of
m a Ji»atiid)ed patty m thi^ county,
i think
I 01
• ** Usual fiir ffnuid juries to direct their
lliflMv but oof to be stayed or eorrectiid by
tfadrcUrrWM^.
• *^ The Argmoenia from danger at»d
wiU not justify thb coune of -' "^ i
fears, if the bw doth not knc t!i<>d,l
MS,
f " This is a new way» it tiath tit warraa
from — '* .->^i-...,. ^* MS.
11 methods of law, and
to LOi... .,..^ .... -.; ,j.^. mifcttcr of juriei and
judgcy, and of other ofhcer*/* M^.
1407] STATE TRIALS, 36 Charles II. l664.— £. oJMaeclegfieldv. Siarlry, [1406
ations to ordinary courts, and minifltera and
officers of justice;
By biniiing^ such persons to the peace apon
•ecority, or committing of' them.
It is the duty and office of grand juries to
present crimes and criminals circumstantiallv,
and particularly ; whereby offenders may Be
brought to trial and judgment.
By that means the. innocent will be acquitted,
and the guilty punished.
This way of accusation is not the work of a
grand jury, this is no part of their office; there
are other mformers ibr such purposes, who are
liable to answer for their informations when
false and malicious.
(Mj,. 4. That this may be of ill consequence
to the king and realm, to have preseutmeots
of grand juries thus impeached by actions.
1. That the public justice of the kingdom
may be endangered by discouraging grand
juries in their duty, by exposing them to ac-
tions for doing their duty.
2. That it is the ri^^ht of grand juries to en-
qiujl^ into the miscarriages of tiieir coi^ntry.
sT That the whole kingdom is concerned in
this privilege of a grand jury.
4. And crery subject is interested in the be-
nefit of it.
5. And if this action prevail, the privilege, the
right and trust of a grand jury is impeached.
Ant, I answer this is an argument to sup-
{>ort juries in their enormities ; and tlie argument
IS of greater danger to the king and the realm,
and to the law, to the right and liberty of every
subject, than the action.
And that to pronounce such sanction for
grand juries by law, in a supreme court of law,
that it IS not safe for the king or realm, tojimpeach
tiicir proceedings by action, may l)e a means to
subvert the law, to injure the kin;^ in his justice,
and to wound the subject in his rigiit to all
he hath.
The law doth allow grand juries to present
and indict ; and though they come together,
and get themselves impannelled to present a
1»erson, falsely, and maliciously, yet says Mr.
lolt, and hath cited books for it, 'this bein&f in
)c«ral course upon their oath an jurors, the Taw
purtz'es the malice, and presumes, tliry were
swayed by their oath to make such present-
ment, and that their first malice and conspi-
racy was no ingredient in such presentment.
]>i0 book in the law that I meet with, neither
doth Mr. Holt cite any book, that carries this
indemnity for a juror, beyond a presentment or
indictment, and that strictly in the course of
justice as juror, and whilst juror, and not afler
he is discharged.
Is there any reason to extend this indem-
nity, to all proceedings of gmnd juries bo
they never so irregular, be they never ao de-
famatory to the subject ?
Thus in time, and perhaps juries have pre-
fumed to make remonstrances atraiust lords,
aad commons in parliament,* what may he
' • As to this, sea 1 Bon. 500. foL «d.
more sacred agfaiiist tliat conn, or any otbcr
court in WestininkCer Hail, against the couDcil
board, against the if real officers of the kiai^iifln.
And shall this be with impunity ?
And this not by presenting or a-cusir.^ kny
of these of any particular crune, in any fum
or method of law'; but by the president nf th's
presentment, without any certain or positifc
charge by waj^ of rensonstrance, without ipt-
cifying anv crime.
Mr. Holt hath asked aome questions in hii
argument — 1 presume to ask this question :
Is not this a course to set up a grand jur/i
Kroccedings, * be it never to irregular or il-
!gal, never so scandalous or UbeHous, above tkc
Ordinary remedies of the law to right a su^
jectth uninjured.
1 woukl not trouble the court with this sort
of argument from general ineonTeDienoe,lMd
not I been led to it by tlie former argument in
til is cause.
The laws thai are made to punish jorin by
attaint t are many, and grounded upon exp^
rience that juries were not to be trusted upn
their oaths andevidence to do what they Uk,
and give what verdicts they pleased, sod to
defend themselves by such surmises, asareii
this plea, of oath evidence and ronscienct'.
Tlierefore was that villainous and severe
jud^ent formed by law in atuints for eit-
cutmg false verdicts ; and it were hcU jonn
would know or remember that they are bUs
to attaint for excessive damages.^
5 OOj, Mr. Hale made another objedioi
that there never was such an action bron^t
as this is against a juror which pre%siM,
therefore he would infer I suppose the action
is not maintainable.
Answer, That actions have been brooght:
all the books cited by Mr. Hult do shew soch
actions were brought and defonded, or at kux
endeavoured to he defended, by preseDUneni*
and indictments upon oath, &c.
There are many prcce<lents (RastalPs En-
tries fol. 123, &c.) where the actions did pre-
vail upon such plea, upon the plaiutifTfi repli-
cation ofnul tiel record of sucn prescntmeo'A
or indictments, and upon such failers of pin-
ducing the records, judgment lor theplaiutiiSi
in the actions.
* ** irthcseproceedingsiiiay notbequestinn-
ed be they never so false, nevlr so scandakHCk
never so much out of tiie iuquiry i»f the jun,
by action, the law will be defec tivv, fitr tbervi^
no other nmcdy for the injuivd subject : be
cannot traverse fur no crime ch:-rgcd ; he can-
not acquit hiinsi'ir froui such infamy, by
havina: such libell taken oiV ihv record.*' 3IS.
f *' Juries are Vmlne to attaint, mi the U*
su|>|)0S('s they ina\ c-r:*, r.ud that \fiifuUy anJ
maliciously. Yel a Graml-jurv <-anii«il be tl*
tainted. They mav ofleiid with iuipunitr.'*
MS.
§ See Proceedings between the dukeof Yori
and Titus Gates, vol. 10, p. 1^5, and ths H^-s
there.
tfr^^t JeUberation prevailed,
r prodecutioiiii have
u ins to prevent
^ 4^ sii\e the lives of
Docenl^y bec^au^e of the 4lrt*ad ofsnch
J if t bey ?fhrni!fj be aaiuiiteiL
Hm hy il ' WQn whut Mi*. Holt <1i<l
in prui uevciUivc |iart of justice,
IS jHvJcrablt: to punishing justice; in
I agree uitli him, hy uUowiug sut h ac-
- iint f^e «iiU malii*uHi!j tirtmc-
4U« is uAeu *ecoaflc<l ana s up-
|k:iJillieE.
case of a falcce and malicious
alar
tD the proceetlinijs
^|fatir$t iijv l^h*' iind umHcious m-ov^rutofp,
lb«t nulilic justice war* cojicerned^ tliai it might
fe« ot ill coti£t4|urnc!e :
Yet the pr^fredini^ allowed.
\nd tha« <
us,
■ ^d provide to s^ecurc men
r fafifc accusal iouii, cspc-
I wits tlie Writ De Odio et Acifl.
lin iJje Gunuuon law ia a law of nifircy^
degia prevent as much as may be Mite
^om^ at]d to delcnd mcD wlui are falsely
i.
i Objection, Mr. Holt did reljr yery much
'^ \ em^ mentiocied in Dyer in an ac^tion
Ddalis IH&fifnatiiiii brongbt Uy the lord
LUst sir Richard Crofis and
/i, KeiUvay ^6.)
^ eiatuin; the
^f!,.;^ — ' - .. Miiiu^ . the
!!» ft reg^ulnr
.., „ ...... ^. juaticci andal-
i^od plea,
per, ^riiat was n leg-al proceertinfir in a
J 684.—/^ ScandaliiiA Magmfum. [ 14 lO
cout-se and court of law lo tfy wbethcrr a dwd
^Vits forjfc'if. utid a 1<« no more criunuul than t<>
brlnij^ nn »iiist a liu'd iur a lulse vci-
diet, whit! I iu timt cose rqiarted
KeHe^vay :it larifr.
It iip-it-ar* iti Kt^ilway the ilef^ndaut jitstifiu
^ : It dependini^ nt the ti?ry lin»e of the
liij iu tire dti*luratiou, utherwiJii^ l»t»
pkailiu;^ that it was the same shitnler which is
iu the writ * de false fiuts foig^er,* and th«»
•dander iu the declaration would not have
servetl without tiavprsjug all other alandeni
hcv(i>re and alUr (p- 29.)
What comparison i^ there between thfise
cases?
The Writ of forger de fault faits U a re-
gular pro ccf-dlntr hy writ io due course of law*
An at»c; w course*
Yetthr i if lie shall proceed faW
and maltdously without cause is perhaps liaV
to cafse.
lint here is no form of law, do due procec4'
iug^iu course of law.
To conclude this matter, and to maintain thi*
action upon thi;* record, 1 shall depend much
¥
* Smyth V, Crai^aw, Cn>. Car. 16. Palnier'i
E*
andrhen k
The t ! ' 1"''^
bill iu tilt f'
pirat<^ attii ^ ^ ^ ^ _ ^^,
d^rs and piracies :
^\ hich offtiices Were not putibhallc ar tie-
terminable in the Star- chamber, in an actioti
upon the case for these words, it wa^ tin plea
to say tlii^ was in a courseof juftic*^ in a VgttI
and supreme eoitrt, hec??use th^ coiiri \mA M
liction of th»s : K
t' r of thehill WL
\ * the par;^ i t
lhi>^ 1 , and iha' t
SaUlt- IU * n ■►; f-oUrt ; " ' :i
upon recnrd to tlr i
-•■■-•V ....,! I.., i,-.. ,__ ... ^.^ ,.,e
accuse.
And if it sbnuid be othi.rwuee it would
hitjhiy incooveuieut ; in our case^ if it he tr^
wliat*I'hdv»> prcuast-d there h no way to ttV
Um libel iifaUe, but iu this action upoti I Ihl
case.
There hAth been no proceeding upQn tbit
pre»enrm*iii! from the making of it*
He canniii have it taken on' the tile in that
couit.
He cannot bring it to trial, for it imports do
certain crinne.
He mu5t for ever lie under the obloquy of it,
|i, . ..>t,,.. f.^.-..^,„ fVij^ prftcntuu'ui^ what
aha I t cheosion of the j luy ,
or \\1.-- ...-,.
lie hath nn i himndrDDd hiv
honor but ill ill !i he bMlh brought
for thia purpose.
He bath in this action, by his arernictnt in
liis declaration of the fal^ihtn oftbia
4X
M
Mil] STATE TRIALS, 36Charles!L \6S4.^E.ofMae€le^ld9.Siarkaf,[m%
ment, and of bis own innocency, given the
defendant an opportunity to justify this accu-
sation, which will prove or disprove this writ-
hi^, aJl w hich tiiis defendant bath avoided by
this insufficient plea.
There is no declaration that ever I met u ith
that suits better with the words and design of
the Stat, of 2 Kic 2, than this declaration ; here
is a peer slandered by devisors^ of false and hor-
rible lies, whereby debates and discords may
arise between the iiords or between the Lords
tnd Commons; therefore it doth enact, that
such devisors or tellers of such false lies,
•hall be taken and imprisoned till be and they
have found him by whom the words were
moved.
This action is not brought for a hasty pas-
tionate word, as many are brought upon this
statute ; but upon this premeditated and pre-
pared libel against this peer, which he calls
false and libellous in this declaration, no per-
Mon dariue to enter it in any due form of law :
Whereby the plaintiff may have an oppor-
tunity to acquit bimstlf of this false, scan-
dalous, and malicious accusation.
As this declaration doth agree with the
words and design of the statute, to deliver the
lords and peers of the realm from scandal and
reproach occasioned by devisors of false news
and liesof theui;
So the occasion of this action, [qu. statute]
If history be consulted, doth suit with the
temper of roauy devisors of such false news
at the time of the making of this statute :
For whose punishment this law was insti-
tuted.
If this course be allowed, here is a new way
found and adjudged tu libel an innocent peer
falsely and maliciously, by conspiracy, when
he is witfiout remedy ; this is a repeal of the
statute, 2 Hie. U.
1 shall mention to the court, and but men-
tion, a roll 1 lately found in a table to some of
iny lord chief justice IJale's Records, men-
tioned in Ills books in Liiicoln*s-inn Library.
M. 9Edw. '2. Conspiracy. "Ou gist vs. Co-
roners et IndictiTs, I^norantia lejris, Slander."
Hill. 8 Edvv. 3. Hot. 75. Ibid, action sur
case, *' vers Jurors que verdict ul court
et al auters : Conspiracy.*'
I had not time to look into these Records,
yet mention them, that I may have hberty to
attend the court with them, if'i shall And them
of ujiC in this matter.
To coiiehide, I presume to say, »
The plaiiititf hatii a good cause of action
well alledged in his declaration against the
defendant, upon a false and scandalous writing
against a |)eer, for which he hath brouj^ht a
pro|)er action upon the Statute Dc Scandalis
Magnatuiu.
'I he defeiMlant hath not sufficiently answer-
ed this dcchiration.
l«.llis plea is defective, for that it doth not
appear the Sessio Cetir* mentioDed in the plea
to be a court having jurisdiction of this matter.
2. This writing in itself appetrt to be i
libel against the plaintiflby and is nother pre-
sentment nor indictment, nor ought to be is
received in a court of iustice.
3. The traverse in the defendant's plea a dt-
fective.
4. And that this court will consider how tbii
great peer had no other course to right bin
against this libel, but by this action.
5. That this action doth naturally oooflit
with the provision and designs of the Sutoli
De Scandalis Magnatum.
6. That it will be of dangerous eonseqneaee
to the king, to tlie Peers and Commons, sod ta
the true execution of the law, to |pve juii^^niest
a^inst this action, and to establish grand Jo-
nes in such unpresidented presentments effs
against the t the sutute 9 Rie. 1
Upon the Writ of Inquiry the circumstSDcei
of this accusation will appear to aggravate sr
lessen this offence against the plaintiff.
And what is offered in bar to the i
may, if true, be a means to alleviate the da-
mages, hut cannot defend and justify thii
writing.
Then will appear the malice and ftlsitjr sf
the accusation, or the zeal and inadvcrlncj
of it, to ffreaten or lessen the daaiages.
Therefore I pray judgment for the plaiotiff
and for the statute S Ric. 8, upon this ubeUsoi
writing against the defendant.
Palmer's Rep. f. 145, Ayrcs v. Sedgwick,
18 Jac.
If a witness upon his oath shall speak sbii-
derous words which are not pertinent to tbc
issue, or to the point to \^ hich he gives evi-
dence, an action upon the case lies for the per-
son slandered.
Obitbr f. 113, Jerom and Masiu's Case, 43 Elii.
If one juror shall Ubour another juror
unduly to give his verdict, an action upon the
case lies against him, for this is in nature of a
conspiracy, because this is dehors the oath oft
juror, by undue course.
Ruddock and Sherman's Case, 16 Car. Banc'
Regis, Roll's Abridg. Case, f. 112, pi. 9.
[S. C. 1 Danv. 209.]
Case lies against Churchwanlens, for falsely
and maliciously presenting a person with io-
tcntion to draw him within the censures of tbo
Ecclesiastical Court for adultery ;
Though before the archdeacon of Sudbnrr,
and not averred that it %vas within his jurisdic-
tion, yet the action lies, and the vexation the
greater.
t Here in the MS. a word or two are illt<
gible.
IS] STAtETRIALSv3«CnARLi!in.
■^1
JvwftCT, Snicrr** Note of tbe Plkadihge,
JuDGM£.HT^ AWD AuTllORlTltS* IN THE CaSE,
lU. or Macci.e»fi£ui» AOALN(»r Starkcv.
^Ugmgl^ communicated b\f Mr, Hargravt-I
r.^47oM«» MACCLESFrEU) V. Stark er I in
SCANDALVM MauNATUM.
Plaintiff declares, quod est par regiii et udus
ffciier€«omm regm msyestatiti cubiculi, et cum
UucH el fidelitate sc ^essii erga dominum
. et quod le defendant ex ineni niatiti^
lil m^, habiU et pnEcoi^^^itatit^ ITmo
^Car, 2, per cods|h rations m inter ifisum
it flilOidam Thomam Urosfenor, P«*irura Sha-
korleyt ^^ quendam scandolosutn libelltitn
BOnliv Q,itereiit£m, M'ih et malitios^, per ipaoa
ehiOAluJii et ini-eutum, fals^ et tnuUtiote,
^•UquJi legati fi€U ratlonabili causa^ bcribi
%th et 8i€ luaciiinatuin et ticriptuni publi-
Ice. ad defumaDduiD et scandalisuindiiiu
eiHi cujiis tenor secjuitur, .>cc. * We,
^raadgury, sworn to iaquirc for the body
Tthe coutit) otCliester, on 17th Stiptemberj
• Car, 'i, lt.i»ing heard his majesly'i* De-
* cUimtion, concemittg^ the treasottable conspi-
* mcy agaia^t his person and goTemtncnt, read
* tottf^&c. preaentoarapprdien&ionsot'daoger
* frfHii a dtMatUfied party in this cotintv» pro-
* mot'mg^ a neditioun address to the knights
* lately chosen tor parliament for our county,
* and unanimously aasembSed mth schisraaticKS.
* and disaffected to the reception of JanicH duke
* ef Monmouth, who has appeared a prime con-
* fibdcfate in the lute treasonable cotitpi racy , the
* COf&oourse of armed persons attending hioi to
* tiie terror of \m luajesty's good and peacealle
* aalnecti. For remedy whereof, with relatioa
* ta the nublique peacr, wee conceife it expe-
* dient that the principal promoters of the said
* aediljous iiddrettii and routous reception of the
* duke of Monmouth and his associates in this
* OOttnty, should be obliged to ifive security of
* the peace, and particularly Charles carle of
* llACcleiiHeld, Richard h>rd Cokh ester ^ Charles
fiord Brandon, Henry Uooth, tisq, sir Hubert
Hpiitloii, itir Wiltuug^huy Aston, sir Thos, Man>
^baring, kc. cum nl(i«i» AcCt' Uuem hbellum
^btaocnteni in $e falsa mendacia, le dettndant
^W el poblicari cauxavit et procuravit, ubi re
» vorik idem Comej< nunquam tuit disatfectus ad
regimen htijua rvpUy nee perturbator pacit» ad
dimifium 1U,(KK> lib.
I^ diffendant [dead quod mesmejour et ann.
al« Sosiond* r|. *»-•*-- ^.r^ f-r r-t-^ntu Chester, de-
taiil lea J«>^! tr le lloy, f^*-.
tedel«ndar»l, . . i ...i.. UrosTcnor, Ace.
in le dcctariition uoiiunut^ cum quibusdaiu aliis
impanel (at* et retomut' I'uerunt fore ]ur«torea
liMkgiiw iaquifiitioni^, Vc. ad i(i<purandum pro
UomiiH) ReufCfet pro corporeCormtnti^^ Ce«trtH%
ige* Q^umI ad eandcm Se««ionein, debtto niodo
otaverunt in pntnlicttif Atig^licaniH terbin,
^^tfratiotx MftK, |.»rout «>i bene lit^uit t
ho^, I cuJpabiiit de pnt^niistif
iSBi.-^/or Scandalum Ma^naium. fHlVj
in Comitatu Berks, seu ahbi extra Comitatun
Cestriiei vel ahtc^r %el iilio modo, quam pru:^
dicius Johannes Slarkey, per pUcilum pruj^
dictum all^ijcavit, et hoc |taratus esit vertticar
uude petit judicium si prajdictus Comes ac-^
tiouepi auaui prxdictam versus euio ha'
debit.
PU* demur*.
Judicium per totam Cariam pro Ucfendente.
Fitzli. N. B. 115. C. et D. si Juror soil
Juredenquire il ne aerra puny pour ce que t
tist quant luit Jure, 30 Ass. 21, Bone Plea iiij
conspiracy quod defendants fuerout indictoarsi
et ce que ils tieront fuit per force de lour se* |
rement,
Br. CoDspiracy, PJa. 1.
4. 35 H. 6« 14.
11. 7 H. 4, 31,
9S. n E, 4. 18.
90. SO Ass. Q U
97. 97 Ass. n.
\5, «1 E. 3. IT.
Coke V2 Hep. 23. Lloyd tr. Barker.
Bridgrman's Rep. 131* Ag^ v. Wyld
et auters,
Br. Consp. S7.
I apprehend that tht earl of Macclesfieldi'
the PlalnllflT in the above Case, and lor<
Brandon his sou (who is sometimes caJle
lord Brandon Gerard » and sometimes lord Ge^
j rard of Brandon) were the only two eark <
j I^faccicsiicld of the House of Gprard. Tlw
; former of them was afterwardsi oullawed ;
the latter, whom 1 conceire to have been hus^
band to the celebrated mother of Savage ihi
jwel, was, in \6f\5^ tried for hit^h treason.
,thi« Trial,* I have not seen any full report |
I but iNarcissiis Luttrell, in im MS. ** Historic*'
I Rplfttion,*' in I he Library of All Souls^ Ox-
I ford, gives a short accuunt of il ; which, to-J
, ffeiher with other particular relating to the
fords, l here insert, as follows :
** Au(?, Cth, 1035, was published bis ma-
I jestyV Proclamation for apprtrhending Cliarle'
I earlof 31accle»5cld for high treason, forbiti din
all persona to receive or harbour huu at the
pet il.
** Nov, 14lh, 1685. Lord Brandon car
from the Tower b) Habeas C'ir|»us to th
Ivin^*s4»enrh bar, ami was arrai^n'd on an ii»!
I dicunent of high treason against the late ktnif;
I ht! pltadtd Nut Guilty, and lii^i trial wan ap
pointed the 'i5th ioU. no he was runmoded
I ai^aiu.
** Nov. 25th. The lord Brandon Gerard was
brought to his trial at the Kin^f- bench bar,
upon an indictment of high ti^oann again^^t th^
laie kittg, Ue was tried, by a jury uf th^
♦ See roudwrbach^s Reports, pp. 3, 5, from
which lH)ok it appears that a motion iu Arrest
ot' Jutl^^mcnt was made ou the part of lurd
Braudoti aud overruled.
1113] STATE TRIALS. 36 ChaklesH. lff8ll--JE.<^Jl£irckifSU/«.Sirfby, [UU
county of Mi/fi!Ie*!CT, of vhljich he cballengeil
■i peirmptori! y : there were many of the no- JDAJesly» ind bad the hooour to kiss his hand
hility and gi-ntry to hear his iriaf The wh
npsses a^'^inst 'him were 3Ir. Keelinflr, who
safe an account of the general con<«piracy
onlv ; thrn aip&inst him m^To partictihirly were
i-Honbl Riirusey and thr hu: l«»rd Grey, and i
oiic Sexton. Colonel KuirjAey iwore as to ! , _
fccveml iliscourses he had %»ii{i the prisoner i Friday next.
he offered his life and fortune to Lis pmn
which wing done, the junr withdrew for almij
haK'an boar, and tbea retonied Mid fottd tbi
defondant Guilnr.
*' Not. 28. The lord Brandon came ap and
had sentence past upon him, as nsual, in cmtt
of treason, and that he shoaM be executed oa
about his seizing the kin;sr as he went to the ■
parliaineut h^iise, or as he came front New-
market, that he would |»roii«Ie twenty men for .
it, and furnish (as small an esUte as he had) '
five thousand pounds towards carrying ou the '
insurrection. The lord Grey ii^\e, a ^ery
jrd Grey ^ _ _.^
handsrime acrouot of tliii Mut in ^neral; then '
«s to the prisoner that his post u as in Cheshire, I of treason,
that he was to Jtecure the fr»rt in Chester, of ' «* Nov. 26.
which he had heard him discourse with sir :
Thomas Arnibtrunqr* sereral tinus; that at a
Tiiectingr at the George and Vulture in the city,
where several were met, we hail a d\scourse of
the insurrection intended ; and upon the whole
he never saw one so forward for a rebellion,
who had not the coaraj^ to rise when there
was an opportunity. Thomas Sextonf testified
the prisoner should tell him ofct a pot of ale
that they inten<Ied, (since this kingr came to
the crown) to set np Monmouth, and there-
fore they did intend to rise, and for that par-
pose writ a letter to Monmouth, which the
prisoner shew'd me, and I saw it after in i'^Ion-
roouth's hand in the west, when he landed.
Now the prisoner's defence consisted: 1. Of
obje*rti.»ns aj^inst the wituesses ; as to Keel-
«i(f'.yHidi-nce, he said, that touch M him not, j
l»ui he (lid iM'lieve as ii.iirii as any one the
lf<'neral consjiiracv : as to U:iiii«»v. he oh-
ji'crid ivliy Ih* li:uf not discovcr'il ti". . sooner; "
whiT«Mt» Iji- hail Ik en i.i piLviii foniuTlv and "
Cfune out, nonr of this heiiiof tU] cti d a^.iiiist ■
hiui: flitn he irovtd l»v \\\n o.- tliree lonis '
that ]{innw.'v hail sworn ditreni.tlv at Mr. I
Cornisli's trial, than wh:it he di.l ai the lord .
IJnsscir.s, as to the mf«Miii.,r at .Shepln-nrs '
aliout tlH-<lr(|;jr.|t|o:i, this \.rv fiillv : then as !
to the loni (.'re V, he* ' hjrc.'iil \w wiis onilau 'd !
h»r tr-axon, vl roiiM ll«- no wimess; l:u! this
JIh" conn lull was sal\M \.v a |,snl..n uliirh
his lonlsliij, !,::,!: ilj^, atr^-.inst Saxton, Im- i)Mj-
trsttil 1m' kn. w liiii, „„t. |„„. ua.s vvvr with '
hir:i, ol:jfrfin:r |,„,v ,„.ii!.,.|v it was he .■.hoiihl
oonimuiiifan-sMrii mall-.. N» so mr m and in-
c-onsirl. i:iM<. a rrjlow, .vri'i wiih uli-.-jh.- ii.mI .
II" arcj: a-'it:-:;...; hot l.fsiMe tlie <rM:;e:ice h«? :
^'■•v«f o.'ild I, .f I," f:-!;..,. notic<M)f <mi tiii> in- j
dirtriMiit, tor tint v.n . lor treason a^ai.jst the >
laft.- kin^r^ and his c\ i;.riie<' went only as to his |
.' I TO 'I need several i
^»Ii'.)_ fi^a^e a!i a*'- '
;;:»!ier and hlui-^r!!', !
ii '» 1 ot'Monitiouili ;
landed in the uc^t,
Jan. l#3ar. The lord Brudon (who wai
come tinse since ooDTieted of high traiee) mi
lately bailed out of the Tower by erder fian
the (ing-.
" C>et. 24th, beiagr the 1st &▼ nf the Term,
the lord Hrandon Gerard pleailecf at the KiogV
lieuch bar his majesty's pardon for hkattiiMcr
The lord Brandon appeand in
the Court of Kingr*s. bench, and dHivcrtid iaio
court his Writ ot'£rror to reverae his attaioder,
which his majesty -bad been pleased t» fraot
him, and acconlmgly it was rerers'd, tlk: u-
torney general consenting thereto.
«' April 18, 1689. The earl of MaccWi-
field bath rereni'd bit outlawry in the Court
ofKing't-bench."
Of James's lenity to lonl Brandon, sir Joiin
Reresby nys, *^ Tbe king, as if he had a miod
to shew us his disposition for clemency, de-
clared he had repriered the lord Brandoa, wbo
was to have been executed three da\s after-
wards, which it nmst be owned was a great act
of mercy in his majesty, this lord having btto
panloned in the Ute reign for breaking a buy's
neck, when he was in h» cups, of which, be-
insT convicted, he was condemned as (fuiliy of
murthcr." Memoirs, 223.
Of the Trial for 3Iunler to which Uere^l^y
alludes, I know nothing more. The follonibi;
indictment is printed in Tremainc, 39 :
Rex versus CoMrr. 3Iacklesfeiij>.
Hill. 4. Jacobi Socundi.
present mnjp^ty. Tin n !
ii'd)iciii.>:i and Vf"»'"'.i'Mi
''"unt of the lovaltv c.f I i
that he li.«.! 1 w',-\ I'lean o;
and that when Munnioiuli
* 8ce his Case, p. 10(1, of this volume.
+ Hfp in this Colleclion, the Case ot' lord
Di'laiuere, a.o. 10D6.
fs. Quod Carol us C-omes MacklcsftnlJ
nnp' dr. Sec. cxisten' p'son' Keditiosa et pnve
mentis m^non iiiipie inquiutc turholmt' tactwie
et spiliiiose disposition' ac machiuaiis pnc-
tic:.u^ et lalso nialitiose ilhcite nequit' iojoste
«:t s( di(ti>sv intcndens nai*<?m l>>m' Candi S^
niiifii niip' Het;is An^l* &r. oc coinmunfm
tiaiiqni Hit litem hujtis, Kegni Angl' iiiquiefsre
lue.lt^^laroet p*iurl>are et sedition' ct rebeliwi'
iiifia hoc llei^n* Aiigl' suscitare movpiv et
|*'ri;i*:ir" ar iifuhornation' diet' nup' Dom' Kec^»
in ii'je Kejfn* Ans^l'in pericul' infcrre Qu«k|;
prid' C. Comns MackiesfiHld ad nw]Hi*<MNH
nola:.di'i>-iinas ct spfhtiosas intention' suaspied'
I'.ri iiii[ iend' i»eriH»^end' rt ud etfectuin rtdigfud'
;•') t'.ie Muii Anno llegoi Caroli Secondi oup'
J{ogis, &c. 35 et diverMsal' diebiis et virilw
tarn antca quam postea Vi et Armis, ^c. apiid
paroch', &c. falso illicite injuaie nequit' anli-
tiose factiose et sedttiose ae aaaemUabat eos-
Teniebat consoltabtt et Mlftftoabat cub F«rf
7] STATE TRIALS, 36 Cuarlbs II. i684.— /or Scanialum BUgmimm. [1418
' Dom* Grey et diirersif al' maledisposit'
»n. p'fai' Attoni' diet' Dom' Regis nimc
end' adhite inoogBit' et earn eisdem person'
IOC et ibid' tnictabat de eisdem suis iiefaii«
imis etseditiosiscompanAioii' imagioafion'
ro|iosit' p'impleod' p'iicieDd' et ad effectum
genii' Et qnod p'd' C. C. M. uHerins ad ne-
tsimas nemqdissimas et seditiosas machiua-
' practjcation' et intention' soas p'd' p'im-
mP p'fictend' et ad effectum redigoaa' ad-
c et ibidem sciK. dicto SO die Maii Anno,
et direnis al' diebus et Ticibos tarn antea
m postea apud paroch', See, Vi et Amis,
falso Ulidte injoste nequit' pialitiose fac-
e et seditiose consaltabat consentiebat con-
abat et confederabat cam pred' Ford Dom'
y el dirersis al' male disposit' person' de
inrection' et rebellion' mfra hoc Regn'
Anglic fiend' et de p'cnration' et p*? iaion'
armor' et hominum armator* p'parandor* in
diversis locis infra hoc Regn' Ai^' ad easdem
nelandisBimas et seditiosas intention' compas-^
sation' et p'posita sua pred* perimplcnd' per*
ficiend' et ad effectu' redigend' Omda; pred'
C. C. M. uHerius ad nequiasimas nefimdissuaas
seditiosas et diabolieas machination' practioa-
lion' et intension' suas pred' perimplend' per-
ficiend'et adefiectum rediffend' pesteasoiKt'
dicto SO Maii Anno, &c. apud, &c. nJso ilUcittt
injuste nequit' factiooe et seditiose sup' se as-
sumpsit et pred' male dbpostt' i^ot' p'misit se
fore assistent' et p'sonalit' Auxihant' id easdem
nequissimas nefondissimas et seditiosas intea*
tion'et compassation' suas p'd' perimplend* et
p'moTcnd' in contemptum legam Scc» in malum
exemplnm, &c. Ac'oontra pacem, &c.
EN^OF V;OL. X.
Printed by T. C UanMrd, Peterbofougb-Coiirt,
Fleet-Street, LondoB. ^
^v.
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